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(영문) 대전고등법원 2016.11.23 2016나12128

사해행위취소

Text

1. Revocation of a judgment of the first instance;

2.(a)

A contract between the defendant and C on July 17, 2012 is a donation contract of KRW 310 million concluded on July 17, 2012.

Reasons

1. Basic facts

A. Although the Plaintiff’s loan claim 1) C did not have an intention or ability to repay, it falsely states that “A would pay a large amount of interest if it invests money because it is possible to pay a large amount of profit by means of real estate auction, etc.” to the Plaintiff. On July 16, 2012, the Plaintiff received KRW 40 million from the Plaintiff on July 17, 2012, KRW 180 million, KRW 280 million, and KRW 460 million on July 17, 2012. (2) The Plaintiff received KRW 40 million from C around 2013.

The Plaintiff filed a lawsuit claiming return of unjust enrichment with the Daejeon District Court against H, the Plaintiff’s loan claim against C as the preserved claim ( Daejeon District Court 2013Gahap6548), but lost it.

After having lodged an appeal against the judgment of the first instance court, the Plaintiff amended the purport of the claim to seek revocation of fraudulent act and return of the value thereof in the appellate court (Seoul High Court 2014Na2301), and received a decision to recommend reconciliation as of April 3, 2015, stating that “H and C cancel the donation agreement of KRW 182 million concluded on March 19, 2013 between H and C, and H shall pay to the Plaintiff the amount calculated by the rate of 5% per annum from the day following the day when the decision to recommend reconciliation in this case became final and conclusive, and that “H shall pay to the Plaintiff the amount calculated by the rate of KRW 182 million per annum from the day when the decision to recommend reconciliation in this case is complete”

The Plaintiff received dividends of KRW 73,062,427 on September 2, 2015 from the procedure for compulsory auction (Seoul District Court K and L (Dual) of real estate for H’s property according to the aforementioned final settlement recommendation decision.

B. The sale and purchase of the instant real estate and the instant donation contract 1) the real estate listed in the separate sheet (hereinafter “instant real estate”) owned by E.

(2) On July 17, 2012, the registration of ownership transfer was completed in the name of the Defendant under the receipt No. 42700 on July 18, 2012 of Daejeon District Court Daejeon District Court’s Daejeon District Court’s registration office, which received on July 18, 2012. The Defendant is a F’s partner living together with C. 2) C shall pay the purchase price of the instant real estate to E on behalf of the Defendant on July 17, 2012, and E shall be paid KRW 360 million out of the purchase price.