2019 Ghana 156367 Revocation of Fraudulent Act

A

Attorney B

C

September 23, 2020

November 4, 2020

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The contract for the transfer of movable property concluded on December 19, 2018 between the defendant and the incorporated association D with respect to movable property listed in the attached list shall be revoked. The defendant shall deliver movable property listed in the attached list to D as an incorporated association.

1. Facts of recognition;

A. On May 25, 2016, the Plaintiff: (a) lent KRW 200,000 to E Co., Ltd. (hereinafter “Nonindicted Company”); (b) the Plaintiff used KRW 150,000,000 out of the said money to repay the debt to F, and (c) the Plaintiff was assigned to the Plaintiff on July 18, 2016, by transferring the F’s representative director’s position to the Plaintiff.

B. After that, while the director G, the representative of D (hereinafter referred to as “foreign corporation”), who is an incorporated association, decided to resign from the office of representative director of the non-party company, the Plaintiff decided to resign from the office of representative director of the non-party company. On April 14, 2017, the non-party corporation issued a promissory note at par value 200,000,000,000, the date of issuance, April 14, 2017, and the date of payment on December 21, 2017, and made a notarial deed of a promissory note on the same day. In addition, on July 29, 2017, the Plaintiff and G, and the non-party company, which actually operated the non-party company, concluded a performance agreement following the resignation of the representative director, and agreed that the non-party corporation will be liable and immediately repaid the loan 20,000,000 which the Plaintiff paid to the non-party company.

C. On the other hand, on December 19, 2018, the non-party corporation prepared and delivered a letter of transfer between the defendant and the defendant that the ownership of movable property listed in the separate sheet (hereinafter "the movable property of this case") is to be transferred to the defendant not later than the completion date of repayment for the purpose of securing KRW 180,000,000 borrowed from the defendant, and the defendant occupied the movable property of this case upon delivery.

D. On December 19, 2018, at the time when the Plaintiff entered into the instant transfer security agreement, the Plaintiff owned the above KRW 200,000,000 and the claim for interest to the non-party corporation. However, at that time, the non-party corporation owned more than KRW 1,00,000 of the market price at which the mortgage was established and seven of the screen practice machinery among the movable property of this case.

[Ground of recognition] Each entry of Gap evidence Nos. 1 through 7 (including each number, if any; hereinafter the same shall apply), the purport of the whole pleadings

2. Judgment on the plaintiff's assertion

A. Summary of the plaintiff's assertion

The contract of this case constitutes a fraudulent act against other creditors of the non-party corporation, which constitutes a fraudulent act against the non-party corporation, at the time of entering into the contract of this case for the transfer of security, the non-party corporation was in excess of its obligation, and the non-party corporation provided the non-party corporation with the whole property except for automobiles with no property value as security for transfer. Accordingly, the contract of transfer of security in this case should be revoked upon the exercise of the right of revocation

(b) Markets:

1) According to the above facts, on January 12, 2018, 19, the date of the conclusion of the instant security transfer contract, the Plaintiff owned a guarantee claim of KRW 200,000,000 against the non-party corporation. The non-party corporation around that time owned 1 unit for the vehicle of KRW 1,000,000 and 7 units for the vehicle of KRW 1,000,000 per vehicle for the vehicle of KRW 1,00,000, and thus, was in excess of its obligation.

2) Meanwhile, in determining whether a fraudulent act constitutes a fraudulent act subject to revocation by a creditor, if the property owned by another creditor is provided as a physical collateral for another creditor’s claims, the portion provided as a physical collateral cannot be deemed as a debtor’s liability property for the general creditors (see, e.g., Supreme Court Decision 2013Da90402, Aug. 18, 2016).

(2) On June 3, 2016, Defendant 1 and 2 were 0.0 billion won for each of the above 10 billion won for 10 billion won for each of the above 10.0 billion won for each of the above 10th 5th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 10. 1st 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 1st 6.

In light of the specific contents of each contract entered into by the Defendant with the non-party corporation and the intent of the parties to the contract, each contract entered into by the Defendant for the acceptance of transfer and acquisition of the instant movable property (one movable property and two movable property) as the object of collateral security. In full view of the above facts, each of the instant movable property provided as collateral security to the defendant pursuant to each of the instant contract was less than the amount of each of the instant movable property originally owned by the defendant against the non-party corporation (one hundred million won, seventy-4,260,00 won) and less than the amount of each of the instant movable property at the time of the contract for the transfer and acquisition, all of the instant movable property was within the scope of collateral security against the defendant at the time of the instant contract for transfer and acquisition. As such, since the instant movable property of the non-party corporation within the scope of collateral security cannot be deemed as a property for the general creditors of the non-party corporation, the instant contract concluded again by the defendant cannot be deemed as a fraudulent act. Therefore, the Plaintiff’s assertion that the instant transfer contract constitutes a fraudulent act is without merit.

3) As to this, the Plaintiff asserts that the transfer of security agreement dated January 10, 2016 and the transfer of security agreement dated May 27, 2017, based on the processed claim, constituted a fraudulent act, in collusion with the non-party corporation, and thus, constitutes a fraudulent act.

However, since it is difficult to recognize that each of the above security agreement constitutes a false conspiracy merely with the statement of No. 8, there is no other evidence to acknowledge it, the plaintiff's above assertion is rejected.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Revision of Judges;

A person shall be appointed.