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Reasons
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(영문) 부산지방법원 2018.08.23 2018나45824
사해행위취소
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1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. The Plaintiff’s claim 1) Nonparty Vienna Co., Ltd. (hereinafter “Nonindicted Company”)

() On July 16, 2014, B lent KRW 17,00,00 annually to B at the interest rate of 27%, 60 months, and overdue interest rate of 29% per annum. On April 1, 2015, Nonparty Company: (a) delayed repayment of the principal and interest of the loan from April 1, 2015; (b) applied for an order to pay the loan to Nonparty Company under the Busan District Court 2015Hu10884; and (c) on May 18, 2015, “B paid to Nonparty Company 17,327,491 and its KRW 15,976,777 with interest rate of KRW 29% per annum from May 14, 2015 to the date of full payment; and (d) the Plaintiff acquired the right and obligation to pay the loan to Nonparty Company 2 and the Plaintiff on June 26, 2015.

B. On May 12, 2015, the Defendant’s establishment, etc. of the right to collateral security (1) B) real estate indicated in the separate sheet (hereinafter “instant real estate”) owned by the Defendant.

As to the lower judgment, the lower court erred by misapprehending the legal doctrine regarding the right to collateral security on May 2, 2015 (hereinafter “instant contract”) and concluding a contract on May 2, 2015 against the obligor, B, and the mortgagee as the Defendant.

(2) At the time of the conclusion of the instant mortgage contract, B had no particular property in addition to the instant real estate and had been in excess of the obligation.

C. 1) Nonparty Company applied for provisional attachment as Busan District Court 2015Kadan3691 on the instant real estate by deeming that Nonparty Company’s provisional attachment, commencement of the real estate auction procedure, receipt of the Defendant’s dividends, etc. as claims for loans against Nonparty Company B, and completed provisional attachment registration on May 19, 2015 (hereinafter “instant provisional attachment”).

(ii) the Korea Housing Finance Corporation, which is another creditor in B, applies.

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