[대상금][공1980.9.15.(640),13035]
Exercise of Right of Revocation by Creditor
The period of release for the exercise of creditor's right of revocation is the limitation period, and the revocation of fraudulent act and the claim for restitution can be exercised simultaneously.
Article 406 of the Civil Act
Supreme Court Decision 74Da1700 Delivered on April 8, 1975
Attorney Jeong-young et al., Counsel for plaintiff 1 and five others
Busan Traffic Co., Ltd., Counsel for the plaintiff-appellant
Daegu High Court Decision 79Na833 delivered on March 5, 1980
All appeals are dismissed.
The costs of appeal are assessed against the plaintiffs.
In Article 406 of the Civil Code, even if there is a new legal relationship between the parties to the revocation because the so-called obligee's right of revocation aims to protect the obligee and the obligor's juristic act detrimental to the obligee is revoked, the exercise of the right of revocation under Article 406 of the Civil Code is subject to the limitation of the period of release under Article 406 (2) of the Civil Code, and therefore, the court below's decision that the plaintiffs' claim of this case was raised even
Since the exclusion period of the above release period is recognized by the precedent (see Supreme Court Decision 74Da1700 delivered on April 8, 1975), there is no argument contrary to this.
In addition, since it is reasonable to claim revocation of fraudulent act and restitution at the same time under the same law, it is reasonable to exercise the right at the same time, the argument that a new claim for return due to restitution should occur when the above cancellation becomes final and conclusive cannot be employed as an independent opinion.
Therefore, the appeal is without merit. 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 Yang Ho-ho (Presiding Justice)