사해행위취소
1.The judgment of the first instance shall be modified as follows:
With respect to the real estate stated in the attached list among the instant lawsuits.
1. We examine ex officio determination as to the legitimacy of the request for the performance of the procedure for cancellation registration of the registration of the establishment of a neighboring real estate in the instant case, as to whether the request was lawful.
(a) In the course of a lawsuit seeking the implementation of the procedure for cancellation of registration of the establishment of a neighboring mortgage, there is no legal interest in seeking the cancellation of registration of the establishment of a neighboring mortgage if the registration of the establishment of a neighboring mortgage was cancelled due to sale
(see, e.g., Supreme Court Decision 2011Da37001, Apr. 26, 2013). (B)
In full view of the facts stated in Eul evidence No. 4 and the purport of the entire pleadings, the plaintiff applied for a compulsory auction of the real estate of this case to Busan District Court D with regard to the real estate of this case during the lawsuit of this case, and the fact that the distribution schedule was prepared on February 28, 2017 according to the court's decision of sale and the payment of the highest bidder's sales price at the above auction procedure can be acknowledged. Accordingly, the fact that the registration of the establishment of the real estate in the defendant's name for the plaintiff to implement the procedure of cancellation registration in this case was cancelled on February 15, 2017 is significant
C. According to the above facts, it is unlawful for the Plaintiff to seek cancellation of the registration of creation of a neighboring mortgage that was already cancelled due to the revocation of fraudulent act, as there is no benefit of lawsuit.
2. Determination on the claim for revocation of fraudulent act
A. On September 14, 2012, the Plaintiff filed a lawsuit claiming restitution of unjust enrichment with the Busan District Court 2012Gahap44061, and rendered a judgment in favor of part of the terms and conditions of provisional execution to pay KRW 92,450,00 and damages for delay from the above court on January 13, 2016 (hereinafter “instant judgment”).
(2) On February 15, 2016, the Defendant concluded a mortgage agreement with B, setting forth a maximum debt amount of KRW 75,00,000 regarding the instant real estate (hereinafter “mortgage agreement”) as the maximum debt amount, and on the same day.