In a case where a right to collateral security has been established to secure a third party’s obligation on a real estate transferred by the debtor, the scope of the property jointly secured by the general creditors, and where both the secured claim amount and the maximum debt amount of the right to collateral security exceed the price of the real estate, whether the transfer of the debtor’s real estate constitutes a fraudulent act (negative)

Where a right to collateral security has been established to secure a third party’s obligation on a real estate transferred by a debtor, the amount of the property jointly secured by the general creditors out of such real estate remains the remainder after subtracting the amount of the secured debt actually secured by the general creditors within the maximum debt amount. Therefore, if the amount of the secured debt and the maximum debt amount of the secured debt exceed the price of the real estate, the transfer of the real estate does not constitute a fraudulent act since there is no property jointly secured by the general creditors. If the debtor disposes of the real estate, while disposing of the real estate created the right to collateral security, he/she partly performs the secured debt of the secured debt of the mortgagee who is in a position to be repaid preferentially

Articles 357, 360, and 406(1) of the Civil Act

Supreme Court Decision 97Da10864 Delivered on September 9, 1997 (Gong1997Ha, 3051) Supreme Court Decision 2000Da42618 Delivered on October 9, 2001 (Gong2001Ha, 2424)

Korea Credit Guarantee Fund (Law Firm Hun-Ma, Attorneys Kim Jong-young et al., Counsel for the defendant-appellant)

Defendant (Attorney Choi Jong-soo, Counsel for the defendant-appellant)

Suwon District Court Decision 2017Na20119 decided November 15, 2017

The judgment of the court below is reversed, and the case is remanded to the Gu Government District Court.

The grounds of appeal are examined.

1. Where a right to collateral security has been established to secure a third party’s obligation on a real estate transferred by the debtor, the portion remaining after deducting the amount of the secured debt actually borne by the general creditors within the scope of the maximum debt amount. Therefore, where the amount of the secured debt and the maximum debt amount of the secured debt exceed the price of the real estate, the assignment of the real estate does not constitute a fraudulent act since there is no property that is the joint collateral of the general creditors (see, e.g., Supreme Court Decisions 97Da10864, Sept. 9, 1997; 200Da42618, Oct. 9, 2001). If the debtor disposes of the real estate on which the right to collateral security has been established and partly repaid the amount of the secured debt of the mortgagee who is in a position to be repaid preferentially to other creditors with respect to such real estate as the purchase price, barring any special circumstance, it cannot be deemed a fraudulent act.

2. According to the evidence duly admitted by the lower judgment and the lower judgment, the following facts are revealed.

A. The Nonparty’s representative director of the Net Co., Ltd. (hereinafter “Pnet”) completed the registration of creation of a mortgage over the KRW 300 million and the maximum debt amount, respectively, on June 4, 2005 and March 17, 2008, on the real estate listed in the separate sheet of the lower judgment (hereinafter “the instant real estate”).

B. On October 9, 2007, the Plaintiff entered into a credit guarantee agreement with the pnet and credit guarantee agreement (hereinafter “the instant credit guarantee agreement”) with respect to the obligation to issue an import letter of credit to the Korea Exchange Bank of the Worldnet. The credit guarantee principal was set at KRW 960 million from October 9, 2007 to October 6, 2008. Since then, the guarantee principal was changed to KRW 864 million from October 9, 2007, and the guarantee term was changed to December 24, 2012. At that time, the Nonparty jointly and severally guaranteed all the obligation, such as the indemnity obligation that the pnet bears to the Plaintiff.

C. On November 30, 2012, the Nonparty completed the registration of transfer of ownership (hereinafter “instant transfer”) on the ground of sale (hereinafter “instant sales contract”) as of the instant real estate on November 30, 2012 in the Defendant’s future.

D. On December 21, 2012, Pnet caused a credit guarantee accident based on the “unsettlement of the import letter of credit which arrives due to a sudden balance of funds.” On March 14, 2013, the Plaintiff subrogated to the Korea Exchange Bank for the total amount of KRW 795,930,451 (= Principal KRW 788,368,288 + interest rate of KRW 7,562,163).

3. At the time of the instant sales contract, the lower court determined that the instant sales contract constituted a fraudulent act detrimental to general creditors including the Plaintiff, since the Nonparty, who was the only real estate of the Nonparty with substantial value at the time of the instant sales contract, did not sell the instant real estate to the Defendant and caused shortage in joint collateral. In particular, on the grounds that the Defendant’s submission of the contract for the instant sales contract was difficult to know about the sales price, and that the source of cash deposited in the account of the Nonparty is unclear.

4. However, we cannot accept the judgment of the court below for the following reasons.

A. In light of the following circumstances acknowledged based on evidence duly adopted, including a copy of the register (No. 8-1) of the register of the company (No. 8-1), a single bank, and a Korea Exchange Bank, it is consistent with logical and empirical rules to deem that the Defendant purchased the instant real estate from the Nonparty for KRW 2.1 billion on the same day, and paid KRW 2.1 billion on the same day, and that the said money was transferred to the Korea Exchange Bank account of the Net and used to repay the secured debt of the instant real estate.

(1) The certified copy of the registry of the instant real estate entered the transaction value of the instant sales contract in KRW 2.1 billion, and on November 30, 2012, the date of the transaction, KRW 2100,000,000 in cash in the account of the Nonparty’s Han Bank on November 30, 2012. The said money was immediately transferred to the Hannet’s Korea Exchange Bank account. The set aside repaid KRW 524,60,000 out of the secured debt of the instant real estate against Hannet on the same day.

(2) The ownership transfer registration of this case was completed immediately after the cancellation of the registration of the establishment of the two adjacent to the real estate of this case on the same day by the Korea Exchange Bank.

(3) At the time of the instant sales contract, the value of the instant real estate did not exceed KRW 320 million (as of June 18, 2016, the market value is KRW 315,69,000). The actual secured amount of the prior collateral established in the future in the Korea Exchange Bank was KRW 1,564,793,643, and the maximum debt amount was KRW 80 million.

B. Examining the aforementioned factual relations in light of the aforementioned legal principles, there is room to view the instant sales contract as not constituting a fraudulent act, since the secured debt amount and the maximum debt amount of the secured debt set up on the instant real estate at the time of the instant sales contract exceed the price of the instant real estate, and the Nonparty, a surety, disposes of the instant real estate and repaid the secured debt of the Korea Exchange Bank, a mortgagee, who has the right to preferential reimbursement regarding the instant real estate

Nevertheless, the lower court determined that the instant sales contract constituted a fraudulent act. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on fraudulent act, thereby adversely affecting the conclusion of the judgment. The Defendant’

5. The Defendant’s appeal is with merit, 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 Kim Chang-suk (Presiding Justice)