Open Decision Ledger · Civil obligations & remedies
Deducting a joint mortgage from the debtor's assets in a revocation action
Supreme Court, Oct. 16, 2025, 2025Da213724 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 사해행위취소
Official text on the National Law Information Center
Question
Where the debtor's property has been offered as security for another creditor's claim, how is the debtor's active property valued when deciding whether an act is a fraudulent act, how is the secured claim borne by each property where a joint mortgage covers properties owned partly by the debtor and partly by a collateral guarantor, and does the same apply to shares in one co-owned property?
Holding
Property given as security for another creditor's claim cannot serve the debtor's general creditors, so only the residue of its value after the secured claim is deducted counts as active property. Where some properties under a joint mortgage belong to the debtor and some to a collateral guarantor, unless there are special circumstances in which the guarantor cannot exercise recourse, the debtor's property bears the whole secured claim up to its value and the guarantor's property bears the remainder; the same applies to shares in one co-owned property. The Court reversed and remanded the part rejecting the plaintiffs' claim and dismissed the rest of the appeal.
Points at issue, verbatim
공동저당권이 설정된 수 개의 부동산 중 일부는 채무자 소유이고 다른 일부는 물상보증인 소유인 경우, 채무자 또는 물상보증인 소유의 부동산이 부담하는 피담보채권액을 산정하는 방법 및 위 법리는 하나의 공유부동산 중 일부 지분이 채무자 소유이고 다른 일부 지분이 물상보증인 소유인 경우에도 마찬가지로 적용되는지 여부(적극)
Unofficial English translation
Where, among several real properties on which a collective mortgage has been created, some are owned by the debtor and others are owned by a third-party security provider, the method of calculating the amount of the secured claim borne by the real property owned by the debtor or the third-party security provider, and whether the foregoing legal principle applies equally where, among a single co-owned real property, some shares are owned by the debtor and other shares are owned by a third-party security provider (affirmative)
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 피고 1과 주식회사 ○○○태양광발전소 사이에 원심판결 별지 목록 제1, 3 내지 8, 19항 기재 각 부동산에 관하여 2019. 12. 27. 체결된 근저당권설정계약 관련 원고들 패소 부분을 파기하고, 이 부분 사건을 대구고등법원에 환송한다. 나머지 상고를 기각한다.
Unofficial English translation
The part of the judgment of the court below in which the plaintiffs lost, concerning the maximum amount mortgage establishment agreement concluded on December 27, 2019 between Defendant 1 and ○○○ Solar Power Generation Co., Ltd. with respect to each of the real properties stated in items 1, 3 through 8, and 19 of the list attached to the judgment of the court below, is reversed, and this part of the case is remanded to the Daegu High Court. The remainder of the final appeal is dismissed.
Form of the test
Elements stated Stated in the decision
물상담보에 제공된 재산의 가액에서 다른 채권자가 가지는 피담보채권액을 공제한 잔액만을 채무자의 적극재산으로 평가하여야 한다.
Unofficial English translation
Only the balance remaining after deducting from the value of the property provided as collateral security the amount of the secured claim held by the other creditor must be evaluated as the debtor's assets.
Factors
- 채무자 소유의 재산이 다른 채권자의 채권에 물상담보로 제공되어 있는 경우
- 사해행위에 해당하는지 판단할 때 채무자의 적극재산을 평가하는 방법
- 공동저당권이 설정된 수 개의 부동산 중 일부는 채무자 소유이고 다른 일부는 물상보증인 소유인 경우
- 채무자 또는 물상보증인 소유의 부동산이 부담하는 피담보채권액을 산정하는 방법
- 하나의 공유부동산 중 일부 지분이 채무자 소유이고 다른 일부 지분이 물상보증인 소유인 경우에도 마찬가지로 적용되는지 여부(적극)
Unofficial English translation
• Where property owned by the debtor has been provided as collateral security for another creditor's claim
• The method of evaluating the debtor's assets when determining whether it constitutes a fraudulent act
• Where, among several real properties on which a collective mortgage has been created, some are owned by the debtor and others are owned by a third-party security provider
• The method of calculating the amount of the secured claim borne by the real property owned by the debtor or the third-party security provider
• Whether it applies equally where, among a single co-owned real property, some shares are owned by the debtor and other shares are owned by a third-party security provider (affirmative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2016. 8. 18. 선고 2013다90402 판결(공2016하, 1333)
Unofficial English translation
Supreme Court Decision 2013Da90402 decided August 18, 2016 (Gong 2016 Ha, 1333)
Decisions referred to
대법원 2016. 8. 18. 선고 2013다90402 판결(공2016하, 1333)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where the collateral guarantor's recourse against the debtor is barred only in part, how is the secured claim then apportioned?
The remand judgment on whether the debtor company owed Defendant 1 KRW 500,000,000 will show how the asset rule is applied to these facts. A later decision on partial recourse, or an amendment to Article 368, Article 481 or Article 482 of the Civil Act, would require this entry to be read again.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-24
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “Where the collateral guarantor's recourse against the debtor is barred only in part, how is the secured claim then apportioned?” vs Independent “Did the company's debt to defendant 1 exist, and how does its amount affect whether the challenged mortgage agreement was fraudulent against creditors?”
The primary reading asks how partial limits on recourse affect debt allocation, while the independent reading asks whether a specific debt existed and how its amount affects fraudulent character.
공동저당권이 설정된 수 개의 부동산 중 일부는 채무자 소유이고 다른 일부는 물상보증인 소유인 경우, 채무자 또는 물상보증인 소유의 부동산이 부담하는 피담보채권액을 산정하는 방법 및 위 법리는 하나의 공유부동산 중 일부 지분이 채무자 소유이고 다른 일부 지분이 물상보증인 소유인 경우에도 마찬가지로 적용되는지 여부(적극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Daegu High Court, in its judgment of 28 May 2025 (2023Na18813), counted the whole value of the properties owned by the company, which stood as mortgagor for another's debt under the senior joint mortgage, as active property without deducting the secured claim, and put no part of the secured obligation under the mortgage contract of 27 December 2019 into liabilities. Active property of KRW 4,927,798,590 exceeded liabilities of KRW 4,413,516,206, but the court held that insolvency was not sufficiently shown, and rejected the plaintiffs' claim. It also found no basis for treating the transfer of the mortgage as a collusive sham declaration, and refused the claim for return of the distributed money.
Supreme Court standard: The Supreme Court held that the court below had misapprehended the law on the collateral guarantor's estate and on insolvency and had not heard what it needed to. Under the senior joint mortgage securing KRW 510,000,000, the debtor-owned properties worth KRW 174,834,220 bear that claim up to their value, so KRW 335,165,780, the remainder, had to be deducted from the guarantor company's active property; the existence and amount of its debt to Defendant 1 also had to be examined. Even if that debt had been declared in a collusive sham, adding the stated KRW 500,000,000 to liabilities would make them exceed the active property, itself capable of being a fraudulent act harming the creditor. On the second ground of appeal it found part of the reasoning inappropriate but the conclusion sound, and dismissed the plaintiffs' remaining grounds.
Distinguishing conditions
- A case in which all the properties covered by the joint mortgage belong to the debtor, so that the secured claim is apportioned by the value of each property under Article 368 of the Civil Act.
- A case in which there are special circumstances in which the collateral guarantor cannot exercise recourse against the debtor under Article 481 and Article 482 of the Civil Act.
- A case in which the debtor's property is not offered as security for another creditor's claim, so that no deduction from active property arises.
Record verification notes
Record which properties belong to the debtor and which to the collateral guarantor, their values and the total secured claim, since the apportionment turns on those figures. Ask first whether the guarantor can still exercise recourse under Article 481 and Article 482 of the Civil Act. Then test the underlying debt to Defendant 1, since adding the stated KRW 500,000,000 to liabilities would reverse the insolvency finding even if the debt were sham.
From the official text
Points at issue
채무자 소유의 재산이 다른 채권자의 채권에 물상담보로 제공되어 있는 경우, 사해행위에 해당하는지 판단할 때 채무자의 적극재산을 평가하는 방법 / 공동저당권이 설정된 수 개의 부동산 중 일부는 채무자 소유이고 다른 일부는 물상보증인 소유인 경우, 채무자 또는 물상보증인 소유의 부동산이 부담하는 피담보채권액을 산정하는 방법 및 위 법리는 하나의 공유부동산 중 일부 지분이 채무자 소유이고 다른 일부 지분이 물상보증인 소유인 경우에도 마찬가지로 적용되는지 여부(적극)
Unofficial English translation
Where property owned by the debtor has been provided as collateral security for another creditor's claim, the method of evaluating the debtor's assets when determining whether it constitutes a fraudulent act / where, among several real properties on which a collective mortgage has been created, some are owned by the debtor and others are owned by a third-party security provider, the method of calculating the amount of the secured claim borne by the real property owned by the debtor or the third-party security provider, and whether the foregoing legal principle applies equally where, among a single co-owned real property, some shares are owned by the debtor and other shares are owned by a third-party security provider (affirmative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결 중 피고 1과 주식회사 ○○○태양광발전소 사이에 원심판결 별지 목록 제1, 3 내지 8, 19항 기재 각 부동산에 관하여 2019. 12. 27. 체결된 근저당권설정계약 관련 원고들 패소 부분을 파기하고, 이 부분 사건을 대구고등법원에 환송한다. 나머지 상고를 기각한다.
Unofficial English translation
The part of the judgment of the court below in which the plaintiffs lost, concerning the maximum amount mortgage establishment agreement concluded on December 27, 2019 between Defendant 1 and ○○○ Solar Power Generation Co., Ltd. with respect to each of the real properties stated in items 1, 3 through 8, and 19 of the list attached to the judgment of the court below, is reversed, and this part of the case is remanded to the Daegu High Court. The remainder of the final appeal is dismissed.
Provisions referred to
민법 제368조, 제406조 제1항, 제481조, 제482조
Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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