Korea Deposit Insurance Corporation (Attorney Cho Dong-dong, Counsel for the plaintiff-appellant)

Defendant (Law Firm Woo, Attorneys Yellow-min et al., Counsel for the defendant-appellant)

June 21, 2006

Seoul Central District Court Decision 2003Gahap40717 Delivered on November 25, 2005

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

The contract of donation concluded on June 8, 1998 between the defendant and the non-party 2 (resident number omitted) shall be revoked within the limit of KRW 800,000,000. The defendant shall pay to the plaintiff 800,000,000 with 5% interest per annum from the day after the date of the conclusion of the judgment of this case to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by considering the whole purport of the pleadings as a whole in the entries in Gap evidence 1 through 3, Gap evidence 4-1, 2, and Eul evidence 1-2:

A. A. On November 5, 1996, a new comprehensive financial company for the bankrupt (hereinafter “new financial company”) was acquired with the Kansan Incorporated Co., Ltd. and became an affiliate of the Myeong Group to which the said company belongs. A business suspension order was issued on May 15, 1998, and the business authorization was revoked on August 19, 198, and was declared bankrupt on August 15, 199 by the Seoul District Court 9Hah122 on August 15, 199, and was appointed as the Plaintiff on December 18, 2001 through Nonparty 4 and 5.

B. On July 24, 1998, the new papers filed a lawsuit against Nonparty 2 seeking damages from the new paper money to May 15, 1998 when he worked as a director from January 14, 1997 to May 15, 1998. As a result, the damage claim against Nonparty 2 of the new paper money was finalized to KRW 2,824,080,000.

C. Meanwhile, Nonparty 2 entered into a donation agreement on June 8, 1998 (hereinafter “instant donation agreement”) with the Defendant, the wife, on the real estate listed in the separate sheet (hereinafter “instant real estate”), and completed the registration of ownership transfer on June 9, 1998, as stated in the purport of the claim.

2. Judgment on the main defense of this case

A. The defendant's assertion

The defendant asserts that the lawsuit of this case brought on June 3, 2003 is an unlawful lawsuit brought after the lapse of the exclusion period of one year from the date on which he became aware of a fraudulent act, for the following reasons.

(1) Whether a lawsuit for revocation of a fraudulent act based on the bankrupt's claim should be determined on the basis of the bankruptcy trustee. On November 12, 2001, the plaintiff was aware that the contract of this case constitutes a fraudulent act because he was aware of the fact that the contract of this case was subject to provisional disposition prohibiting disposal of the real estate of this case with the right to revoke the fraudulent act as trustee in bankruptcy of the Dong Bank on November 12, 2001. Thus, when the plaintiff became a trustee in bankruptcy of the new amount or when the plaintiff taken over the lawsuit for damages against the non-party 2 of the new amount, he became aware that the contract of this case constitutes a fraudulent act.

(2) As a result of the investigation of Nonparty 2’s property before filing a lawsuit claiming damages against Nonparty 2 on August 1998, the new amount of money was examined as to the instant gift contract with the knowledge of the fact that the instant gift contract was concluded, but it was already determined that there was no benefit of the lawsuit seeking revocation of fraudulent act since Nonparty 6’s provisional disposition was completed, and that the new amount of money was attached to the land located in Naju-si owned by Nonparty 2.

B. Determination

(1) First, it is necessary to determine who was aware of the debtor's fraudulent act in a lawsuit for revocation of a fraudulent act based on the bankrupt's claim.

The bankruptcy trustee has the right to manage and dispose of the bankrupt estate which is composed of all property owned by the bankrupt at the time of the declaration of bankruptcy, and thereby has the same status as the general successor of the bankrupt. However, the Bankruptcy Act provides that the bankruptcy trustee becomes the plaintiff or the defendant in the lawsuit against the bankrupt estate is limited to recognizing the standing in the legal and technical request under the Civil Procedure Act, and even if the bankruptcy trustee acts in his own name, it does not have the effect of substantive law or legal procedure, but is merely an agent or representative of it based on the other person's rights (see Supreme Court Decision 88Da26987 delivered on Nov. 13, 1990). Thus, whether the bankruptcy trustee was aware of the debtor's fraudulent act in the lawsuit against revocation of fraudulent act based on the bankrupt's claim should be determined based on the bankrupt (see Supreme Court Decisions 2005Da8699 delivered on May 26, 2005; 200Da73799 delivered on December 27, 2001).

Therefore, the defendant's assertion that in the lawsuit for revocation of the fraudulent act of this case based on the claim against the non-party 2 who is the bankrupt, it is necessary to judge whether the plaintiff, who is the bankruptcy trustee, was aware of the fraudulent act of this case, is without merit.

(2) Next, it is not sufficient to recognize that the new paper was aware of the existence of the gift contract of this case on or around August 1998 only with the testimony of ○○○○ witness of the first instance trial as to the time when the bankrupt was aware of the fraudulent act of this case, and there is no other evidence to acknowledge it. Rather, according to the evidence of evidence No. 11, the new paper paper paper paper paper was written on July 23, 1998 with respect to the real estate of this case at the time when preparing the review data for lawsuit against Nonparty 2 on July 23, 1998, and it was not yet known that the ownership transfer registration under the name of the defendant was made under the gift contract of this case. Thus, the defendant's assertion is without merit.

3. Judgment on the merits

A. Establishment of fraudulent act

According to the evidence No. 11, evidence No. 13-5, evidence No. 14-1, evidence No. 14-1, evidence No. 8-1, and evidence No. 1 through No. 12, respectively, at the time of concluding the gift contract of this case, Nonparty 2, as active property at the time of entering into the gift contract of this case, has been holding shares of 37,000 shares, since the total market value of 29,620,640 won and 185,00 won and face value of 185,00,000 won in addition to the real property of this case at the time of entering into the gift contract of this case. At the time of entering into the gift contract of this case, Nonparty 2 was liable for damages equivalent to the 2,824,080,000 won with small property. Thus, at the time of entering into the gift contract of this case, Nonparty 2 was in excess of the property of this case.

In light of the fact that Nonparty 2, who has already been in excess of debt, entered into a donation contract with the Defendant, the wife for the instant real estate, and completed the registration of ownership transfer on the ground thereof, and that the new payment on May 15, 1998, was made after being subject to a disposition of business suspension, etc. and was merely one month after being subjected to a disposition of business suspension, etc., and that the instant donation contract was concluded, Nonparty 2 was presumed to have been aware that the instant donation contract was concluded under the circumstance that it was foreseeable that the new payment was in excess of debt would bring about damage to the general creditors including the new payment, and that the Defendant’s bad faith, the beneficiary, is presumed.

As to this, the defendant did not know that the non-party 2 was liable to compensate for the damages against the new species of money at the time of entering into the contract of donation of this case, or that he was in a state of excess of the obligation, and thus, he was the bona fide beneficiary. Therefore, the defendant's defense is without merit, since there is no evidence to acknowledge the above facts.

(b) Revocation of and reinstatement from fraudulent acts;

Thus, the gift contract of this case between the non-party 2 and the defendant on June 8, 1998 should be revoked as a fraudulent act.

Furthermore, according to the evidence No. 4-1 as to the method of restitution, the Seoul Central District Court's Gangnam Registry of 200,000,000 won with respect to the real estate in this case as the maximum debt amount of 840,000,000 won with respect to the establishment registration of a mortgage, the National Bank of the mortgagee Co., Ltd., and the debtor as the defendant. In such a case, the amount equivalent to the value of the object of the fraudulent act shall be compensated with the performance of the duty to restore as it is impossible or considerably difficult to return the original property. In this case, the amount of the order to compensate shall be ordered to compensate for all the value of the real estate jointly secured by the general creditors at the time of the fraudulent act, and it shall not be deducted from the value of the secured claim of the right to collateral security established after the fraudulent act (Supreme Court Decision 2003Da40286, Dec. 12, 2003), according to the appraisal of the appraiser No. 7 in the court of first instance, the above real estate, the market price of this case shall be confirmed to 85 billion won.

Meanwhile, in principle, it is possible to seek compensation for damages only for the amount obtained by deducting the secured debt amount of the right to collateral security at the market price of the real estate where the mortgage established before the fraudulent act was cancelled after the fraudulent act. According to the evidence No. 4-1 and No. 2, on May 25, 1998, prior to the conclusion of the donation contract of this case, the registration of establishment of a mortgage for the real estate of this case was completed on July 28, 1998 after the donation contract of this case was concluded. However, according to the evidence No. 5 and No. 6, the above non-party No. 3 was the wife of the non-party No. 2, and the real estate of this case was already deducted on February 13, 1998 under the name of the non-party No. 6, which was the mother of the non-party No. 2, and the registration of establishment of a mortgage of this case was completed after the non-party No. 2 had been disposed of in the name of the non-party No. 3.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted as it is reasonable, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Choi Byung-chul (Presiding Judge)