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(영문) 대구고법 1974. 9. 18. 선고 73나710 제1민사부판결 : 상고

[사해행위취소청구사건][고집1974민(2),116]

Main Issues

The legal nature of the period of exercising the right to cancel the fraudulent act

Summary of Judgment

The period of the exercise of the right to revoke a fraudulent act will be dismissed if the court ex officio investigate the period of exclusion and it is deemed that the lawsuit was instituted after the expiration of the exclusion period.

[Reference Provisions]

Article 406 of the Civil Act

Plaintiff and appellant

Plaintiff

Defendant, Appellant

Defendant

Judgment of the lower court

Daegu District Court of the first instance (72 Gohap973)

Text

The appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

Appeal and purport of appeal

The original judgment shall be revoked.

(The main purpose of the claim)

On July 20, 1968, July 20, 1968, the Defendant: (a) filed for a provisional registration with the Daegu District Court No. 30019, Jul. 6, 1972; and (b) filed for a cancellation of ownership transfer registration as stipulated in No. 24047, Jul. 6, 1972.

(Preliminary Claim)

The sale and purchase of the same site between the defendant and the non-party 1 on July 19, 1968 shall be revoked. This is the same as the purport of the original claim except that.

The costs of lawsuit shall be borne by the defendant through the first and second trials.

Reasons

On the premise that the Defendant purchased the land stated in the claim(s) originally owned by Nonparty 1 (hereinafter referred to as the “the site for convenience”) from the above Nonparty as stated in the conjunctive claim, the fact that the registration of ownership transfer has been completed through a provisional registration for preserving the claim for ownership transfer registration, such as the stated in the above claim(s) does not conflict between the parties.

The plaintiff's legal representative, first of all, was the defendant's purchase and sale of the above real estate, and the non-party 1, who was the owner of the above real estate, was aware of the above real estate from April 1968 to July 13 of the same year, and acquired 4,00,000 won in aggregate between the plaintiff and the defendant who was the wife and sold the above real estate immediately after July 19 of the same year without the above fraud, and the above provisional registration and registration were invalid because they were all of the above provisional registration and registration were invalid because they were the defendant's non-party 2's testimony of the above non-party 2 and the non-party 3's appraisal result of the plaintiff's above execution of the above real estate and the non-party 1's allegation of the above real estate from the plaintiff 1 to the above non-party 5's real estate sale and sale contract without any dispute over the above provisional registration and the above non-party 1's claim for damages from the plaintiff 1 to the above non-party 1's legal representative.

Even if the plaintiff's attorney is not so, the registration of transfer of ownership in the front of the above non-party was made by a favorable judgment against the above non-party as above. The non-party at the time of the above judgment was a prison, but the defendant reported a false address and acquired a favorable judgment as if he resides in the defendant's domicile. Thus, the above registration in the front of the defendant at least is null and void, but even if he was in the number of times, even if he was at the time, according to the above evidence No. 9-2, it cannot be said that the copy and writ of summons so that he was found to have been in a clear sense that he was faced with his wife, and as seen above, it can be known that the above non-party had been made to transfer the registration of transfer of ownership to the above non-party by taking the security of the debt. Accordingly, the above registration is therefore consistent with the substantive legal relationship. Therefore, the plaintiff's above assertion

For the following ancillary claims:

If the above transaction between the defendant and the non-party is not based on false conspiracy, the plaintiff is liable for damages against the above non-party. The plaintiff's transfer of the above non-party to the defendant although there is no specific property other than the above real estate to the non-party, it constitutes a so-called fraudulent act that reduces the debtor's general property, even though there is no sufficient ability to repay it. Thus, the plaintiff's attorney asserts that the plaintiff's claim against the defendant for the cancellation of the sale with the above non-party and the execution of the provisional registration and the registration for cancellation of the principal registration for the above provisional registration

However, even if the sale and purchase between the defendant and the non-party constitutes so-called fraudulent act, when the plaintiff, who is the creditor, exercises his right of revocation, the plaintiff must file a lawsuit within one year from the day on which he became aware of the facts causing the revocation. In full view of each of the above evidence No. 2 and No. 6, the plaintiff first seized the real estate for the purpose of preserving the claim for damages against the above non-party, and then at the time the police made a statement as the complainant against the above non-party on December 30, 1969, the above non-party already disposed of it to the defendant without any sufficient means to repay the plaintiff's claim, and there is no evidence to decide otherwise. Thus, the plaintiff at least on the above date, the plaintiff's claim for revocation cannot be avoided by the plaintiff's second time after the lapse of one year later than the plaintiff's 1 year later.

Therefore, the plaintiff's main claim of this case shall be dismissed without merit, and since the conjunctive claim is a lawsuit after the expiration of the period of release, it shall be dismissed. Accordingly, the court below's judgment is just and it is without merit, and the plaintiff's appeal is dismissed in accordance with Article 384 of the Criminal Procedure Act, and it is so decided as per Disposition by applying Articles 95 and 89 of the Civil Procedure Act with respect to the bearing of litigation costs.

Judges Seole Hong (Presiding Judge) Lee (Presiding Judge)