Plaintiff (Attorney Han-Name et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other

Defendant 3 (Defendant in the judgment of the Supreme Court) (Attorney Kim Jong-soo, Counsel for defendant-appellant)

Seoul Northern District Court Decision 2009Da59937 Decided November 24, 2010

June 10, 201

1. The part against Defendant 3 in the judgment of the first instance shall be revoked;

2. A. The Plaintiff’s lawsuit between Defendant 3 and Nonparty 1 on December 29, 2006, seeking the cancellation of a contract to establish a right to collateral security, which was concluded with regard to real estate indicated in the attached Form, is dismissed.

B. The contract to establish a mortgage between Defendant 3 and Nonparty 1 on February 26, 2009 is revoked.

3. All appeals filed by Defendants 1 and 2 are dismissed.

4. Of the total litigation cost incurred between the Plaintiff and Defendant 3, 1/2 shall be borne by the Plaintiff, and the remainder by Defendant 3, and the costs of appeal incurred between the Plaintiff and Defendant 1 and Defendant 2 shall be borne by Defendant 1 and Defendant 2.

1. Purport of claim

With respect to the real estate indicated in the attachment (hereinafter referred to as the "real estate of this case"),

A. Revocation of the contract to establish a mortgage between Defendant 3 and Nonparty 1 on December 29, 2006 and February 26, 2009; and

B. Revocation of the contract to establish a right to collateral security concluded on February 26, 2009 between Defendant 1 and Nonparty 1;

C. Defendant 2 performed the registration procedure for cancellation of the registration of the establishment of a mortgage in the vicinity of the establishment of a mortgage completed by Nonparty 1 on February 27, 2009 by the Dobong Branch of Seoul Northern District Court (Seoul Northern District Court) No. 12349.

2. The plaintiff's purport of appeal

Of the judgment of the first instance court, the part against Defendant 3 shall be revoked. The contract to establish a mortgage concluded on December 29, 2006 with respect to the instant real estate between Defendant 3 and Nonparty 1 shall be revoked.

3. Purport of appeal by the defendant 1 and 2

The part against the Defendants in the judgment of the first instance is revoked. The Plaintiff’s claim against the Defendants is dismissed in entirety.

1. Basic facts

The following facts may be acknowledged in full view of the purport of the entire pleadings in the statements No. 1, No. 2, and No. 7.

A. On May 11, 2006, Nonparty 1, who received money from the Plaintiff on May 12, 2006, from the Plaintiff, each of the money of KRW 100 million from the Plaintiff as investment money, and acquired money from Nonparty 3 and Nonparty 4 in the above manner, by deceiving the money of KRW 100 million from the Plaintiff, on May 12, 2006, with the profitability of the business for which the Republic of Korea is holding the Siirs (U.S.) exhibition in the Republic of Korea, and the amount of the existing investment.

B. However, around October 2006, Nonparty 1 had already been in excess of his/her obligation. At that time, Nonparty 1 completed or deleted the registration of establishment of a mortgage for each of the instant real property, including the details on the registration of establishment of a mortgage for the instant real property, which was its sole property (hereinafter referred to as “instant contract No. 0” or “registration No. 0” when referring to the mortgage contract or the registration of establishment of a mortgage for the following reasons:

C. After that, Nonparty 1 was found guilty of fraud, etc. due to the act of deceiving the Plaintiff, such as the above A., and was detained by the court of first instance on March 20, 2009 and was sentenced to imprisonment on March 20, 209.

D. However, Nonparty 2, the wife of Nonparty 1, completed the registration of ownership transfer on the instant real estate in his name on March 30, 2009.

2. Determination as to Defendant 3

A. Determination as to the contract No. 3

(1) The plaintiff's assertion

The plaintiff asserts that the conclusion of the contract with the defendant 3, the mother, even though the non-party 1 was liable to compensate the plaintiff for damages amounting to KRW 220 million against the plaintiff, is a fraudulent act that causes damage to the plaintiff's damage claim against the non-party 1, and thus, the above contract to establish a mortgage should be revoked.

(2) Determination

However, in case where a creditor filed a lawsuit against a beneficiary seeking cancellation or cancellation of the fraudulent act and restitution of the said fraudulent act on the ground of a debtor's fraudulent act on the ground of the debtor's fraudulent act, and the creditor has returned to the debtor by punishing the property for which return was sought by the revocation of the fraudulent act, barring special circumstances, the creditor's revocation lawsuit has already been executed and has no longer the benefit of protecting the rights by the lawsuit (Supreme Court Decision 2007Da85157 Decided March 27, 2008).

On February 26, 2009, the contract No. 3 was terminated by Nonparty 1 and Defendant 3, and on the same day, the registration No. 3 was cancelled. Thus, there is no dispute between the parties. The creditor's revocation lawsuit against this case is unlawful because there is no benefit in the protection of rights by securing the right by the lawsuit (the plaintiff is unlawful, because the scope of the secured obligation and the scope of return are different depending on the creditor's revocation lawsuit against Nonparty 2, the owner of the real estate of this case, the scope of the secured obligation and the scope of return are different. Thus, the third contract is terminated regardless of the sales contract for the real estate of this case concluded between Nonparty 1 and Nonparty 2, and therefore the plaintiff's above assertion is without merit).

B. Determination as to the contract No. 7

(1) The plaintiff's assertion

The plaintiff asserts that the conclusion of the contract No. 7 is a fraudulent act that causes damage to the plaintiff's damage claim against the non-party 1 while the non-party 1 was liable for damages amounting to KRW 220 million against the plaintiff. Thus, the above contract to establish a collateral security should be revoked.

(2) Determination on the cause of the claim

(A) Determination on the benefit of protection of rights

As seen above, unless there are special circumstances, if a mortgage contract subject to a creditor's revocation lawsuit is terminated and the establishment registration of a mortgage is cancelled, there is no benefit of protecting the right to cancel the mortgage contract.

However, in full view of the purport of the arguments in evidence Nos. 1, 2, and 7, Nonparty 1 sold the real estate of this case to Nonparty 2, his wife, who was in excess of the debt, and completed the registration of ownership transfer in the name of Nonparty 2 on March 30, 2009. Nonparty 2 cancelled the registration of this case on the same day. The plaintiff asserted that the above sales contract between Nonparty 1 and Nonparty 2 was a fraudulent act and filed a creditor revocation lawsuit against Defendant 2, the court of this case, claiming that the above sales contract between Nonparty 1 and Nonparty 2 was a fraudulent act. Accordingly, according to the above facts of recognition, it can be known that the above contract No. 7 was terminated simultaneously with the transfer of ownership by Nonparty 2. Whether the contract No. 7 was cancelled as a fraudulent act, the above contract No. 2009Da39407, and the scope of return was changed, so the plaintiff's claim against Defendant 370 billion won was dismissed for the reason that it exceeded the market price of this case.

(B) Determination on whether a fraudulent act was committed

Unless there are special circumstances, if the debtor provided his property as payment in kind or as a security for a certain creditor, in case where the debtor's property is insufficient to fully repay the debtor's obligation, it would be a fraudulent act in relation to other creditors (Supreme Court Decision 2004Da7873 Decided November 10, 2005).

According to the facts acknowledged in Paragraph 1, even if Defendant 3 is a creditor against Nonparty 1, it constitutes a fraudulent act detrimental to other creditors, barring special circumstances, and Defendant 3, a beneficiary, is presumed to have been maliciously committed by Nonparty 1, a beneficiary, to have entered into a contract No. 7 with Defendant 3, one of his own creditors, etc. in excess of obligations.

Therefore, the contract No. 7 between Nonparty 1 and Defendant 3 should be revoked as a fraudulent act.

(3) Judgment on the defendant's assertion

(A) Determination on the termination of the preserved claim

1) Defendant 3 asserts that the Plaintiff’s damage claim against Nonparty 1 was extinguished as repayment, since the Plaintiff acquired from Nonparty 1 all the property of KRW 600,000 and the investment shares of KRW 1,000,000,000,000,000,000,000,00

According to the evidence evidence Nos. 5 and 6 (including each number), the plaintiff's transfer of the project of the public mountain field from Nonparty 1 on or around November 2006. However, the above fact of recognition alone is insufficient to recognize that the plaintiff's damage claim was extinguished due to the plaintiff's actual participation in the project of the public mountain field in the Republic of the Philippines as well as the persons related to the project of the Philippines after the acquisition of the project, and there is no other evidence to support it. Thus, the above assertion by Defendant 3 is without merit.

2) In addition, Defendant 3, on June 4, 2009, agreed with Nonparty 1 to receive KRW 700 million from Nonparty 1 and received tin equivalent to KRW 700 million at the market price by means of the transfer by means of the transfer for security. Accordingly, the Plaintiff’s damage claim against Nonparty 1 due to the above agreement has expired, and the Plaintiff’s damage claim against Nonparty 1 cannot be revoked as a fraudulent act.

Comprehensively taking account of the overall purport of the arguments in the evidence No. 2, No. 3, and No. 4 (including various numbers), Nonparty 1: (a) was bound by imprisonment from the first instance court to March 20, 209; and (b) tried to reach an agreement with the Plaintiff on June 4, 2009; (c) made an agreement between the Plaintiff and the Plaintiff on June 4, 2009; (d) paid KRW 70 million to the Plaintiff as a collateral; and (e) made the said agreement within 18 months from the time of discharge by Nonparty 1 to pay the Plaintiff KRW 70 million; or (e) made the said agreement directly by the Plaintiff to dispose of it and appropriated it to pay the above KRW 700 million to the Plaintiff; and (e) based on the evidence No. 2, it cannot be acknowledged that the agreement related to the fraudulent act itself is not included in the above agreement; and therefore, (e) it is not reasonable to recognize that it is not related to the above agreement.

(B) Determination on the bona fide assertion

Defendant 3, from September 2004 to April 2006, lent KRW 100 million to Nonparty 1, and concluded the contract No. 3 and completed the registration of No. 3, and Defendant 1 terminated the contract No. 3 in order to make the registration of establishment of senior mortgage to Defendant 1, and again concludes the contract No. 7 with Nonparty 1 after cancelling the registration No. 3, and completed the registration No. 7. 7. Thus, Defendant 3 asserted that he was bona fide at the time of the contract No. 7.

It is not sufficient to acknowledge that Defendant 3 had acted in good faith at the time of the contract No. 7 only with the descriptions of the evidence No. 10, No. 11, and No. 12 (including each number) by Defendant 3. The above assertion by Defendant 3 is without merit, since there is no evidence to acknowledge otherwise.

3. Determination as to Defendant 1 and 2

A. Determination on the cause of the claim

Even if Defendant 1 is a creditor against Nonparty 1, according to the facts stated in Paragraph 1, it is presumed that Nonparty 1’s conclusion of a mortgage-based agreement on the instant real estate between Defendant 1, one of his creditors, etc., in excess of the obligation constitutes a fraudulent act detrimental to other creditors, barring any special circumstance. Defendant 1, a beneficiary, and Defendant 2, a subsequent purchaser, is presumed to have been malicious.

Therefore, the contract No. 5 between Nonparty 1 and Defendant 1 should be revoked as a fraudulent act, and Defendant 2 is obligated to implement the registration procedure of cancellation of registration No. 5 based on the contract No. 5 to Nonparty 1.

B. Determination as to Defendant 1’s assertion

(1) Determination as to the assertion of eligibility for defendant

The defendant 1 asserts that he cannot be the defendant of the revocation lawsuit because he himself transferred his claim against the non-party 1 to the non-party 2 and completed the supplementary registration No. 5 under the contract No. 5.

In this regard, the subject of the creditor's revocation lawsuit is a legal act between the debtor and the beneficiary, so the defendant 1's above assertion is without merit.

(2) Determination as to the assertion on the extinction of the preserved claim

Defendant 1 asserted that the damage claim against Nonparty 1 was extinguished since the Plaintiff acquired all of the business of the Simsu, Myun (U.S.) from Nonparty 1, but it is not sufficient to recognize that the damage claim against the Plaintiff was extinguished due to the Plaintiff’s business takeover as prescribed by Article 2. 2. b. 3(a) of the above Act, and there is no other evidence to acknowledge this otherwise. Thus, Defendant 1’s above assertion

(3) Determination as to the excessive assertion of collateral obligations

Defendant 1 asserts that each contract should be assessed as a single act. However, Defendant 1 himself, at the time of entering into the contract of Nos. 5, the secured obligation already secured by the establishment registration of another place of collateral exceeds the value of the instant real estate. Thus, Defendant 1 asserts that the contract of No. 5 is concluded after the loss of collateral value and is not a fraudulent act.

The issue of whether the right to collateral security was determined as of the time when the contract was concluded, and the fact that Defendant 1 had Nonparty 1 cancel the registration of Nos. 3 and 4 in order to establish a mortgage prior to the establishment of a mortgage over the instant real estate is not a dispute between the parties. In full view of the purport of the argument as to the statement No. 7, the Bank's claims secured Nos. 1 and 2 are KRW 70,069,149, and the market price of the instant real estate can be recognized as the facts leading up to 300,000,000 won. According to the above facts, Defendant 1 concluded a contract No. 5 under the condition that the value of collateral was sufficient, so the above assertion by Defendant 1 is without merit.

(4) Determination on the bona fide assertion

Defendant 1 loaned KRW 30 million to Nonparty 1 on August 2, 2006, but did not receive reimbursement of KRW 27 million, and entered into a contract to secure it. Defendant 1 did not know that Nonparty 1 was another creditor at the time of the contract. Thus, Defendant 1 acted in good faith at the time of the contract No. 5.

Defendant 1’s assertion is without merit, inasmuch as there is no other evidence to acknowledge it, solely on the basis of the descriptions of the evidence Nos. 1, 1, 2, and 3 of lives, lives.

C. Determination on Defendant 2’s assertion

(1) Determination on the bona fide assertion

Defendant 2 asserts that Defendant 1 loaned money to Defendant 1 several times and transferred the registration No. 5, and that he acted in good faith at the time of the above transfer.

Defendant 1’s above assertion is without merit, on the grounds that the descriptions of evidence Nos. 1 to 5 are insufficient to acknowledge the good faith of Defendant 2, and there is no other evidence to acknowledge it.

(2) Determination as to the excessive assertion of collateral obligations

Defendant 2 shall be assessed as a single act. However, as Defendant 1 himself entered into the contract of Nos. 3, 4, and 5, Defendant 2's assertion that the secured obligation already secured by the establishment registration of another place of establishment exceeds the value of the instant real estate, the contract No. 5 is concluded after the loss of collateral value and is not a fraudulent act. However, as seen in Article 3(b)(3) of the above, Defendant 2's above assertion is without merit.

4. Conclusion

Therefore, the part of the plaintiff's lawsuit against the defendant 3, seeking cancellation of the contract No. 3, should be dismissed as it is unlawful. With respect to the real estate of this case, the contract No. 7 concluded between the defendant 3 and the non-party 1, and the contract No. 5, which was concluded between the defendant 1 and the non-party 1, shall be revoked, and the defendant 2 shall be liable to perform the procedure for cancellation of the registration of the establishment of a mortgage which was completed by the Seoul Northern District Court No. 12349, Feb. 27, 2009. Thus, the plaintiff's claim of this case shall be accepted within the above recognized scope, and the part against the defendant 3 in the judgment of the court of first instance against the defendant 3 shall be dismissed, and the part seeking cancellation of the contract No. 3 shall be revoked, and the part against the defendant 1 and the non-party 2 in the judgment of the court of first instance shall be justified, and the part against the defendant 1 and the non-party 2 shall be dismissed as per Disposition.

[Attachment]

Judges Kim Jong-ho (Presiding Justice)