As long as a claim is transferred in excess of the debt, it constitutes a fraudulent act, and as long as the assignment of claim constitutes a fraudulent act objectively, the beneficiary's bad faith is presumed.

As long as the non-party company, which was in excess of the debt, transfers the claim for the sale price in installments to the owners of each real estate, it constitutes a fraudulent act, it is confirmed that there was an intent to harm the plaintiff, who is a tax claim, and as long as the assignment of the claim by the non-party company, as the debtor objectively

201Gaz. 34555 Revocation of Fraudulent Act

Korea

AAAAAAA corporation

January 26, 2012

February 9, 2012

1. The assignment of claims and the right to collateral security transfer agreement concluded on December 29, 2010 between the Defendant and BB Co., Ltd. regarding the right to collateral security in the name of BB Co., Ltd. among each real estate listed in the separate sheet 1 and 2 shall be revoked.

2. The defendant shall pay to the plaintiff 150 million won and 660 million won with 5% interest per annum from the day following the conclusion of this judgment to the day of full payment.

3. The plaintiff's remaining claims are dismissed.

4. The costs of the lawsuit are assessed against the defendant.

1. The assignment of claims and the right to collateral security transfer agreement concluded on December 29, 2010 between the Defendant and BB Co., Ltd. regarding the right to collateral security in the name of BB Co., Ltd. among each real estate listed in the attached Tables 1 and 2 shall be revoked.

2. The defendant shall pay to the plaintiff 150 million won with 56.6 million won with 5% interest per annum from the day following the conclusion of this judgment to the day of full payment.

1. Facts constituting the premise for determination

A. The plaintiff's right to be preserved and the subrogated claim

0 The Plaintiff has a total tax claim amounting to KRW 8.4 billion againstCC Construction Co., Ltd., and a total of KRW 1.6 billion againstCC Industry Development Co., Ltd., an affiliate of the said company.

00 million won and 3.2 billion won and 3.2 billion won, respectively, have been extended to the third debtor BB Co., Ltd. (hereinafter referred to as the "non-party company").

0 The Plaintiff discovered the above loan claims in the course of the disposition on default of national tax notice regarding the construction ofCC and the development of theCC industry, and on October 11, 2010, issued the attachment notice to the non-party company as well as the above delinquent taxpayers.

(b) Conclusion of a service contract and assignment of claims;

0. Meanwhile, on May 10, 2010, the Defendant entered into a service contract for market research on the business of apartment houses, officetels, etc. with the non-party company, and on August 3, 2010, with the Asia Development Co., Ltd. and each of KRW 120,000,000,000 respectively, and performed the service, but did not receive the service payment.

O On December 29, 2010, after the notification of the above attachment by the Plaintiff, the non-party company transferred to the Defendant a claim for the sale price of the collateral security to the owners of each real estate listed in the attached Tables 1 and 2 for the repayment of the above obligation.

(c) Transfer of mortgage;

O The non-party company shall hold each real estate listed in the separate sheet No. 1 and No. 2 on December 30, 2010.

To transfer the right to collateral security to the defendant, the detailed details are as follows.

As for ‘000,' among the real estate listed in the attached list 1 list, the right to collateral security was set up in the name of the non-party company on July 13, 2009, each of the maximum debt amount of KRW 14.2 million, and ‘B',000,000 on August 3, 2009, and the right to collateral security was set up in the name of the non-party company. On December 30, 2010, the right to collateral security was transferred to the defendant on December 29, 201, with regard to ‘601' on December 29, 201, and ‘601' on September 21, 201, and ‘000' on August 19, 201.

(O) With respect to ‘000,' among the real estate listed in the separate sheet Nos. 1, 2000, with respect to ‘1,30,000 won,' the maximum debt amount of April 9, 2010, ‘2,701', the right to collateral security was established on August 3, 2009, the maximum debt amount of 3,030,030,000 won, â……………‘000,000, and â………………1104, with respect to the â……‘1,000,0000, the maximum debt amount of 24 July 24, 2009, the right to collateral security was established on July 24, 2009, each of the above rights to collateral security was cancelled on July 26, 205, and transferred on July 21, 2010, each of the above rights to collateral security was cancelled on December 29, 201, 20101010.

O The amounts that the defendant has received from the owners of the above real estate shall be as follows:

D. Property of the non-party company

O Around November 2010, the non-party company was holding 22 real estate, including 000-00 above ground 00000, Goyang-gu Oyang-gu Obyang-gu, 2010, and the claim for the sale price of the above mortgage, which became the object of the assignment of the instant claim. (2) The non-party company has already been holding a debt as a small property, due to the above loan obligations against the party and PP Construction, etc. at the expense of the mortgage debt amounting to KRW 7560,000,000,000,0000.

E. Plaintiff’s exercise of subrogation right

0 The Plaintiff asserts that, in this case, as a national tax creditor for PP construction andCC industry development, the above delinquent taxpayers exercise the right to revoke the fraudulent act held against the non-party company.

2. Determination

A. Whether a fraudulent act is established where an obligor transfers monetary claims equivalent to the joint security of a general creditor in lieu of satisfaction of the existing obligation to some creditors

In principle, the following precedents and the precedents that affirm the transfer of monetary claims to the debtor in excess of the debt in payment for the existing debt were conflicting with each other as to whether it constitutes a fraudulent act:

(1) Supreme Court Decision 96Da36647 Decided June 27, 1997 ruled that an act of a debtor, who had already been discharged from debt excess, transferred his active property to some of his creditors as payment in kind, constitutes a fraudulent act in relation to other creditors, barring special circumstances.

(2) On the other hand, the Supreme Court Decisions 2003Da1205 Decided June 24, 2003, 2003Da60822 Decided May 28, 2004, 2005Da23049 Decided August 19, 2005, 2005Da62167 Decided June 15, 2006, 2006Da57292 Decided June 12, 2007, including the Supreme Court Decisions 2006Da86993 Decided July 12, 2007, held that the above legal principles do not apply where, in principle, a debtor’s joint security would not be prejudicial to the existing creditor’s pecuniary obligation with the exception of partial repayment of another creditor’s monetary obligation.

(3) However, from the standpoint of other creditors, payment in kind to some creditors is basically an act of reducing their common security, without any change. ② In particular, payment in kind in itself is not an obligatory act and it is not an original act, and ③ The established attitude of the Supreme Court is, in principle, that payment in kind in excess of the general obligation against payment in kind is recognized as a tort (see, e.g., Supreme Court Decisions 90Meu27198, Nov. 23, 1990; 2007Da18218, Jul. 12, 2007; 2008Da85161, Sept. 10, 2009; 2008Da85161, Sept. 10, 2009; 2008; 3). It is difficult to see that there is no difference between the obligor’s act of offering in lieu of payment in kind to the existing obligee, and it is an act of offering another object of payment in kind to the existing obligee.

(4) Therefore, in this case, as long as the non-party company in excess of the debt transferred the claim for the sale price in installments to the owner of each real estate listed in the attached Tables 1 and 2 attached hereto to the defendant on December 29, 2010, which was after the plaintiff's notification of seizure, to the defendant on December 29, 2010, it constitutes a fraudulent act in principle, and it is sufficiently confirmed that the non-party company had an intent to harm the plaintiff, who is the tax right holder. Considering the overall circumstances surrounding the circumstances surrounding the situation at the time, such as the property status and fraudulent act of the non-party company, the time when the non-party company was committed, and the situation of arranging the debt of the non-party company, it does not constitute an exceptional case where the establishment of fraudulent act

(b) Bad faith presumption of beneficiaries;

Furthermore, in light of the circumstances surrounding the assignment of claims by the non-party company, which is the debtor, objectively constitutes a fraudulent act, the beneficiary's bad faith is presumed, and the defendant's transfer of claims (see, e.g., Supreme Court Decision 2009Do1489, Oct. 18, 2011) is insufficient to recognize that the evidence submitted by the defendant in the instant case was taken over by the non-party company without knowledge of the non-party company's fraudulent act or its intent at the time of the acquisition of claims, and there is no evidence to prove otherwise. Accordingly, the assignment of claims between the defendant and the non-party company should be revoked as a fraudulent act, and the defendant must cancel the registration of the transfer of collateral security or return profits acquired therefrom as a result of restitution.

(c) Scope of return - Value compensation

After the Defendant’s transfer of the right to collateral security from the non-party company, all of the rights to collateral security was cancelled, and the Defendant received total of KRW 150,66 million from the obligor of each right to collateral security. The Defendant must return the said money to the Plaintiff as compensation for value. The Plaintiff’s claim seeking compensation for value is justified within the scope of recognition, and the remainder of the claim is dismissed. The costs of lawsuit are fully borne by the Defendant, who actually lost.