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(영문) 서울북부지방법원 2016.04.08 2015가단138602

사해행위취소

Text

1. As to KRW 55,235,291 and KRW 32,529,308 among the Plaintiff, Defendant A’s interest rate shall be from September 17, 2015 to the day of full payment.

Reasons

1. Plaintiff’s claim against Defendant A

(a) Indication of claims: To be stated in the corresponding part of the grounds for claims in attached Form;

(b) Judgment on deemed confession (Article 208 (3) 2, the main sentence of Article 150 (3) and the main sentence of paragraph (1) of the Civil Procedure Act);

2. Plaintiff’s claim against Defendant B

A. (1) Defendant B first filed the instant lawsuit after the exclusion period of the right to revoke the fraudulent act (the “one year from the date on which he became aware of the cause for revocation”) was far more than the exclusion period of the right to revoke the fraudulent act, and thus, the instant lawsuit is deemed unlawful. However, there is no evidence to acknowledge this point, and thus, Defendant B’s above assertion cannot be accepted.

(2) Next, Defendant B had already completed the compensation for value at the Korea Standards Savings Bank on or around December 2014, and the lawsuit in this case is unlawful as there is no benefit in the protection of rights within the scope that overlaps with that part. However, as seen earlier, the Plaintiff, through the lawsuit in this case, claims against Defendant B for the revocation of a fraudulent act and the compensation for value arising therefrom within the scope that remains after deducting the portion for which Defendant B had already completed the compensation for value. As such, the above assertion by Defendant B, which is based on a different premise, cannot be accepted.

B. The Plaintiff’s existence and scope of the preserved claim of this case (1) and the principal and interest of the transferred money claim against Defendant A: as of September 16, 2015, KRW 128,992,783 as of September 16, 2015 [Grounds for Recognition] Gap 1-3 (including each number; hereinafter the same shall apply) and the purport of the entire pleadings.

(2) As long as a creditor’s claim has been established before the fraudulent act, the assignee may exercise the obligee’s right of revocation even if the claim is transferred, and in such a case, even if the requisites for setting up against the assignment of claim have been met only after the fraudulent act was conducted, it cannot be any obstacle to the assignee’s exercise of the obligee’s right of revocation. Therefore, Supreme Court Decision 2004Da582 Decided June 29, 2006.