In a case where the result of a claim for revocation of a fraudulent act regarding a subsequent termination contract varies depending on whether the relevant contract to establish a mortgage constitutes a fraudulent act even if the debtor terminated the relevant contract to a third party after transferring a real estate on which prior priority was established, whether the claim for revocation of a fraudulent act regarding the already terminated contract is a benefit in the protection of rights (affirmative); and whether the same applies to the case where the registration for cancellation of the right to collateral security and the registration for transfer of ownership are received on the same day, and

In a case where a debtor transfers the relevant real estate to a third party and cancels the registration of establishment of a mortgage, even though the contract was already terminated, it is different whether the remaining value of the relevant real estate at the time of the subsequent transfer contract exceeds the amount of the secured obligation and whether the claim for cancellation of a fraudulent act regarding the subsequent transfer contract is accepted, and if the scope of return differs, there is a benefit of protecting rights that can claim cancellation of a fraudulent act even if the contract is already terminated. This is also the same in a case where the registration of cancellation of the registration of establishment of a mortgage and the registration of ownership transfer based on the transfer contract, which was based on the cancellation of the transfer contract, are received on the same day, and the same day is the same.

Article 248 (Institution of Lawsuit) Article 406 (1) of the Civil Procedure Act, Article 406 (1) of the Civil Act

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

Defendant (Attorney Kim Young-soo, Counsel for defendant-appellant)

Seoul Northern District Court Decision 2010Na8110 decided July 8, 2011

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

A. Where a creditor claims revocation of a fraudulent act against a beneficiary on the ground of a fraudulent act regarding a debtor's real estate, if such juristic act was rescinded or terminated and has already been returned to the original financial status, the creditor's revocation lawsuit has no benefit in the protection of rights (see Supreme Court Decision 2007Da85157, Mar. 27, 2008).

On the other hand, if a security right has been established on a real estate owned by an obligor, only the remaining part after deducting the amount of the secured debt is the property provided by general creditors as joint collateral, and if the amount of the secured debt already exceeds the value of the pertinent real estate, such act of disposal, such as transfer of the pertinent real estate, cannot be deemed a fraudulent act (see Supreme Court Decision 97Da10864 delivered on September 9, 197, etc.): Provided, That in cases where the act of creation of prior security right existing at the time of the subsequent act of disposal is recognized as a fraudulent act, the secured debt of the security right shall not be included in the amount of the secured debt subject to deduction in determining whether the subsequent act of transfer constitutes a fraudulent act (see Supreme Court Decision 2007Da23081 delivered on July 26, 2007).

In light of the above legal doctrine’s extension, in a case where the obligor transferred the relevant real estate to a third party while prior mortgage was established, and then terminated the senior mortgage contract and cancels the registration of establishment of a mortgage, the existence of a benefit in the protection of rights that can claim cancellation of fraudulent act even if the claim for cancellation of fraudulent act was already terminated and the scope of return was changed depending on whether the remaining value of the relevant real estate at the time of the subsequent transfer contract is a fraudulent act, and as a result, if the claim for cancellation of fraudulent act was accepted or the scope of return was changed, it should be deemed that there is a benefit in the protection of rights that can claim cancellation of a fraudulent act even if the contract was already terminated. This is the same as in a case where the cancellation registration of establishment of a senior mortgage and the ownership transfer registration based on the transfer contract was received on the same day as in the case where the cause was the same.

B. The court below held that the Plaintiff’s claim for cancellation of the mortgage contract (hereinafter “related lawsuit”) was dismissed on the ground that the mortgage contract concluded on February 26, 2009 between Nonparty 1 and the Defendant on the instant real estate was cancelled on the ground of termination on March 30, 2009, in principle, since the registration of establishment of a neighboring mortgage contract concluded on February 26, 2009 was cancelled on the ground of fraudulent act, this part of the lawsuit was not a benefit of protection of rights. However, the following facts acknowledged based on the adopted evidence: (i) Nonparty 1 entered into a sales contract on the instant real estate with Nonparty 2 on March 30, 2009, and completed the registration of ownership transfer on the same day; (ii) the Plaintiff asserted that the above sales contract between Nonparty 1 and Nonparty 2 was fraudulent act; and (iii) the Plaintiff’s claim for cancellation of the mortgage contract cannot be seen as a difference in the market value of the instant real estate due to the fraudulent act’s claim to the Seoul Northern District Court.

C. In light of the above legal principles and records, the judgment of the court below is just, and there is no error of law which affected the conclusion of the judgment by misapprehending the legal principles as to the interest of a lawsuit in a creditor revocation lawsuit, as alleged in the grounds of

2. As to the grounds of appeal Nos. 2 and 3

An act of an obligor, which has already been in excess of his/her obligation, providing real estate to one of the obligees as collateral security, becomes subject to creditor's creditor's fraudulent act in relation to other obligees, barring any special circumstances. In addition, in cases where an obligor's act of offering collateral to a third party objectively constitutes a fraudulent act, the beneficiary's bad faith is presumed, and thus, in order to be exempted from his/her liability, the beneficiary is responsible to prove his/her good faith. In such cases, whether the beneficiary is bona fide or not shall be determined in light of logical rules and experience by comprehensively taking into account the relationship between the obligor and the beneficiary, the details of the act of disposal between the obligor and the beneficiary, the motive and circumstance leading to such act, the circumstances leading to such act, etc., whether there is any special reason to doubt that the terms and conditions of the act of disposal are normal transaction, and circumstances after the act of disposal, etc. (see, e.g., Supreme Court Decision 200

Based on the facts admitted by the court below based on the adopted evidence, it is justifiable for the court below to have determined that the conclusion of the mortgage contract of this case between Nonparty 1 and the defendant who is the mother in excess of the obligation constitutes a fraudulent act detrimental to other creditors and may be recognized in bad faith by the defendant. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the establishment of a fraudulent act and the intent of the beneficiary, or in the omission

3. As to the fourth ground for appeal

In light of the records, it is justifiable for the court below to determine that the plaintiff's damage claim cannot be deemed to have been extinguished by the repayment or agreement based on the facts in its judgment. Contrary to the allegations in the grounds of appeal, there is no violation of the principle of free evaluation of evidence in violation of logical and empirical rules, nor any illegality affecting the conclusion of the judgment due to

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)