In cases where a debtor purchases real estate from a third party by borrowing money from a third party, provides the relevant real estate as a security for a loan obligation, or where a debtor completes the registration of ownership transfer before the third party purchases the real estate from a third party and pays the purchase price and then provides the relevant real estate as a security for a payment of the purchase price obligation, whether the debtor's act of offering security is a fraudulent act (negative) and whether the debtor's act of offering security and offering security is a fraudulent act where the act of offering security was conducted in succession within a short period

Unless there are special circumstances, a debtor in excess of his/her obligation provides real estate to any one of the creditors, as security for claims, constitutes a fraudulent act in relation to other creditors. However, as the debtor's act of disposal of the debtor's property decreases in the debtor's whole property to cause or deepens the shortage of joint security for claims due to a fraudulent act, the debtor's act of purchasing real estate from a third party by borrowing funds from a third party, offering the relevant real estate as security for the loan obligation, or offering the relevant real estate as security for the payment of the purchase price, and the debtor cannot be deemed to have reduced the joint security for the existing creditors, such as the case where the debtor purchased the real estate from a third party and completed the registration of ownership transfer before the payment of the purchase price, and completed the registration of ownership transfer as security for the payment of the purchase price, the act of offering security cannot be deemed a fraudulent act. Furthermore, even if the above act of purchasing real estate and offering security was conducted in sequence within a short

Article 406(1) of the Civil Act

Supreme Court Decision 97Da10864 Decided September 9, 1997 (Gong1997Ha, 3051), Supreme Court Decision 2008Da95663 Decided April 23, 2009, Supreme Court Decision 2017Da237186 Decided September 21, 2017 (Gong2017Ha, 1976)

Plaintiff

Defendant

Daegu District Court Decision 2018Na302917 Decided September 5, 2018

The judgment below is reversed, and the case is remanded to the Daegu District Court.

The grounds of appeal are examined.

1. An act of an obligor in excess of debt constitutes a fraudulent act in relation to another obligee, barring special circumstances (see, e.g., Supreme Court Decision 97Da10864, Sept. 9, 197). However, to constitute a fraudulent act, an obligor’s act of disposing of his/her real estate constitutes a fraudulent act in relation to another obligee (see, e.g., Supreme Court Decision 97Da10864, Sept. 9, 197). However, an obligor’s act of disposing of his/her property should cause or deepen the obligor’s joint security of claims due to the decrease in the obligor’s total assets. Thus, if the obligor purchased the real estate from a third party by borrowing the real estate from a third party, provided the real estate from a third party as a security for a loan obligation, or if the obligor purchased the real estate from a third party and provided the real estate as a security for a loan obligation before and after paying the purchase price, the act of offering collateral cannot be deemed a fraudulent act, barring any special circumstances.

2. On the grounds indicated in its reasoning, the lower court determined that: (a) establishing and establishing a collateral security on the instant real estate, which is almost the only property worth executing to the Defendant in insolvency, was an act reducing joint collateral for general creditors; and (b) a fraudulent act against the Plaintiff, a creditor, was established.

3. However, we cannot agree with the above determination by the court below for the following reasons.

A. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) On March 24, 2016, a construction company deemed to be a stock company (hereinafter “non-party company”) entered into a contract with DK to newly construct a factory building on the land of the non-party company’s ( Address 1 omitted) on the land of the non-party company’s 3,097 square meters and sell DK.

(2) According to the above sales contract, KK purchased from the non-party company the share of 260.6/153 of the road of 1,153 square meters, including the above factory site, the share of 375/2,514 of the road of 1,446 square meters ( Address 3 omitted), the share of 375/2,514 of the road of 961 square meters ( Address 4 omitted), the share of 375/2,514 of the road of 98 square meters, the share of 375/2,514 of the road of 98 square meters, and the share of 375/2,514 of the road of 1,153 square meters ( Address 6 omitted), the share of 1,153 square meters, and the share of the newly constructed factory (300 square meters) in the price of 1,850,000,000 won.

(3) On the ground of the above factory site, the non-party company newly constructed a factory building with the general steel structure panel roof 923m2 (hereinafter referred to as “each of the instant lands,” referring to each of the instant lands and the above factory buildings, and referring to each of the instant lands and the above factory buildings. Dr. Dr. completed registration of preservation of ownership of the above factory building on August 9, 2016 without paying the purchase price pursuant to the above sales contract. On the same day, Dr. completed registration of ownership on each of the instant lands.

(4) On August 9, 2016, Drink completed the registration of creation of a mortgage over the first priority of the maximum debt amount of KRW 1 billion to the Daegu Bank, Inc. with the joint collateral of each of the instant real estate as the joint collateral, and loaned KRW 816 million from the said bank, and paid as part of the purchase price.

(5) On August 9, 2016, DK concluded a mortgage agreement between the non-party company and the non-party company to borrow a total of KRW 1,032,00,000,000,000,000,000,000,000, which was paid by the non-party company and KRW 82,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000

(6) On March 8, 2016, the Plaintiff sold DK each amount equivalent to KRW 14,597,00,000, and KRW 594,000 on April 14, 2016. The Plaintiff filed a lawsuit against DK for the claim for the payment of goods, and received a decision of performance recommendation on October 6, 2016 that “DK shall pay to the Plaintiff KRW 11,191,00,000 and delay damages therefor,” and the said decision of performance recommendation was finalized on October 27, 2016.

B. Examining the above facts in light of the legal principles as seen earlier, DNA concluded a sales contract with the non-party company for the purchase of each of the instant real estate and completed the registration of ownership transfer or the registration of ownership preservation on each of the instant real estate before paying the purchase price, and on the same day, entered into the instant mortgage contract on the land for factory and buildings in order to secure the payment of the purchase price with the non-party company and the non-party company, and completed the registration of mortgage establishment to the defendant at least seven days thereafter. The joint collateral of the existing creditors cannot be deemed to have decreased before and after the aforementioned series of acts. In such a case, it should not be deemed that only the act of establishing the right to collateral against the defendant of DNA constitutes a fraudulent act.

Nevertheless, solely on the grounds stated in its reasoning, the lower court determined that DNA created a collateral security against the Defendant constituted a fraudulent act. In so doing, the lower court erred by misapprehending the legal doctrine on a fraudulent act, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jung-hwa (Presiding Justice)