In determining whether the amount of claims secured on the transferred real estate exceeds the value of the real estate where part of several real estate on which joint mortgage is established, the method of calculating the amount of claims secured on such real estate.

If a security right has been established on an object transferred by the obligor, the property provided to the joint security of the ordinary creditors among such object shall be limited to the remaining part after deducting the amount of the secured debt. If the amount of the secured debt exceeds the price of the object, the transfer of the object cannot be deemed a fraudulent act. In this context, in cases where part of several real estate on which the joint mortgage has been established is transferred, the amount of the secured debt shall be deemed the amount divided by the amount of the secured debt of the joint mortgage in proportion to the value of each real estate on which the joint mortgage has been established in accordance with the purport of Article 368

Articles 368 and 406(1) of the Civil Act

[1] Supreme Court Decision 97Da10864 delivered on September 9, 1997 (Gong1997Ha, 3051) Supreme Court Decision 2000Da42618 delivered on October 9, 2001 (Gong2001Ha, 2424 delivered on October 12, 2001) Supreme Court Decision 2001Da15613 Delivered on October 12, 2001

New Bank Co., Ltd. (Law Firm Shin & Yang, Attorneys Kim Byung-ju et al., Counsel for the plaintiff-appellant)

Defendant

Supreme Court Decision 2002Da41589 Delivered on November 8, 2002

Seoul District Court Decision 2002Na60657 Delivered on June 25, 2003

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

1. The judgment of the court below

According to the reasoning of the judgment below, the court below found the plaintiff's loan of 1,327,70,00 won in total to the non-party 1's joint surety, who is the representative director of Rabol Sound, for the period from February 27, 1997 to May 22, 197. However, the non-party 1, who is a joint surety, was unable to repay the above loan due to the aggravation of financial standing, the non-party 6's sale of the real estate (hereinafter referred to as "the sales contract of this case") to the defendant on September 1, 1999, 0, 00, 00, 00, 00, 000 won, 1,327,70,000 won, 30,000 won, 1,000 won, 30,000,000 won, 20,000 won, 30,000,000 won.

Furthermore, based on the facts found, the court below held that the real estate of this case was provided as a security after the joint mortgagee voluntarily choose the object of the mortgage other than the real estate of this case, and in fact, Hyundai Depository also applied for a voluntary auction only regarding the real estate of this case and the share of the site, and the sales contract of this case was concluded after the decision to grant a successful bid was rendered. Based on the premise that the market price of the real estate of this case and the share of the site of this case was merely 258,000 won at the time of the sales contract of this case, while the market price of the real estate of this case and the share of the site of this case was merely 303,750,000 won [3,750,000 won [3,750,000 won, the maximum debt amount of the secured claim of the right to preferential reimbursement (the maximum debt amount of the first secured mortgage) +30,000,000 won (the maximum debt amount of the secured claim of this case).

2. Judgment of the Supreme Court

If a security right has been established on an object transferred by the obligor, the property provided to the joint security of the ordinary creditors among such object shall be limited to the remaining part after deducting the amount of the secured debt. If the amount of the secured debt exceeds the price of the object, the transfer of the object cannot be deemed a fraudulent act (see Supreme Court Decisions 97Da10864 delivered on September 9, 1997; 2001Da15613 delivered on October 12, 2001). In this context, if part of several real estate on which the joint mortgage is established are transferred, the amount of the secured debt shall be deemed the amount divided by the amount of the secured debt of the joint mortgage in proportion to the value of each real estate which is the object of the joint mortgage, barring any special circumstance, in light of the purport of Article 368 of the Civil Act.

Nevertheless, under the premise that the court below did not examine the amount of the secured debt to be borne by the real estate of this case properly and under the circumstances stated in its reasoning (the record shows that modern safe had received dividends in the procedure by filing an application for auction to the same real estate). The remaining conclusion that the sales contract of this case, which concluded that the real estate of this case was fully borne by the secured debt within the scope of the maximum debt amount of the above secured mortgage, does not constitute a fraudulent act. Accordingly, it is erroneous in the misapprehension of legal principles as to the establishment of joint mortgage and fraudulent act and the failure to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal pointing

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)