사해행위취소
1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
Purport of claim and appeal
[Claim]
The first instance court dismissed the plaintiffs' primary claim, and accepted the conjunctive claim, and only the defendant appealed against it, the subject of the judgment of this court is limited to the conjunctive claim.
Basic Facts
The court's explanation on this part is identical to the reasoning of the judgment of the court of first instance, and therefore, this part of the reasoning of the judgment is cited as it includes the abbreviation pursuant to the main sentence of Article 420 of the Civil Procedure Act.
In light of the fact that K, which constitutes a conjunctive claim by the plaintiffs, paid the purchase price to P in advance by means of transferring the second remittance of this case to P in excess of debt, thereby ultimately devolving the Defendant the amount equivalent to the second remittance of this case. As such, the contract of donation following the second remittance of this case should be revoked. The Defendant’s restoration to its original state following the above revocation would make the conjunctive claim to the plaintiffs.
have the obligation to pay the money set forth in the subsection.
Judgment
According to the facts acknowledged prior to the establishment of the preserved claim, the plaintiffs have a joint and several guarantee payment claim for K pursuant to each joint and several guarantee agreement concluded with K, and each of the above joint and several guarantee payment claims has already been established prior to the act of remittance of this case. Thus, the right of revocation becomes the preserved claim.
If a debtor has donated his/her own property to another person under excess of his/her obligation, such act shall be deemed a fraudulent act unless there are special circumstances, and the debtor's intent to commit a fraudulent act shall be presumed. However, in cases where a creditor who seeks revocation of a fraudulent act contests that the debtor's act of paying the money to the beneficiary is a gift, it shall be proved that the act of paying the money constitutes a gift, and the burden of proof for such act is on the part of claiming a fraudulent act.
Supreme Court Decision 2005Da28686 Decided May 31, 2007