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(영문) 대법원 2016.09.23 2015다39050

추심금 및 사해행위취소

Text

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

Reasons

The grounds of appeal are examined.

1. Where the obligor’s act of reducing the source of appeal as to the fraudulent act of each of the instant pledge contracts causes or deepens the shortage of joint security for general creditors by doing an act of reducing the obligor’s property for liability, whether the act constitutes a fraudulent act subject to revocation ought to be determined by comprehensively taking into account the following circumstances: (a) the importance of the obligor’s entire responsible property; (b) the degree of insolvency; (c) the economic purpose of the juristic act; (d) the reasonableness of the pertinent act, which is the means of realization; (e) the reasonableness of the act’s economic purpose; (e) the reasonableness of the act’s duty or situation; and (e) the degree of perception of the parties as to the risks of lack

(2) In light of the above legal principles, the obligor’s act of offering real estate owned by the obligor to any one of the creditors constitutes a fraudulent act in relation to other creditors, barring any special circumstance. However, barring any special circumstance, the obligor’s act of offering the real estate owned by the obligor to any of the creditors constitutes a fraudulent act in relation to other creditors, but the obligor’s act of creation of security right does not constitute a fraudulent act unless there is any special circumstance to deem that the obligor’s act of offering the real estate in a situation in which the continuation of the business is difficult to proceed is the best way to exercise the ability to repay the obligation, and that the obligor offered the real estate as security to a specific creditor and received additional loans from the funds additionally (see, e.g., Supreme Court Decision 2000Da5015, May 8, 2001). Based on its stated reasoning, the lower court held against the obligor’s comprehensive construction company B (hereinafter “B”).