[사해행위취소][집7민,237]
(a) Creditors and creditors entitled to request the delivery of specific goods or the transfer of ownership;
(b) Cases where the existence of a tort is recognized and the amount of damages is not recognized unfairly;
A creditor entitled to demand the delivery of a specific object or the transfer of its ownership may not assert that the debtor is a fraudulent act even if he/she has made a double disposition of the specific object in question.
Articles 424 and 709 of the Civil Act
Haskter
Masck and 1 other
Seoul High Court Decision 57 Civil Gong1074 delivered on April 30, 1958, Seoul High Court Decision 2007Da1074 delivered on April 30, 2008
The right to revoke a fraudulent act against the first ground for appeal is a legally recognized creditor's right to claim the delivery of a specific object or the transfer of ownership in case where the debtor did a juristic act detrimental to the joint security of the total creditor, and the creditor entitled to claim the delivery of the specific object or the transfer of ownership is not entitled to assert it as a fraudulent act even in case where the debtor disposes of the specific object in another person. In this case, according to the records and the judgment of the first instance court cited by the original judgment, it can be recognized that the defendant Choi Jong-k sold the real estate to the plaintiff who owned it, and then sold it again to the defendant Lee Jong-young, this cannot be viewed as a fraudulent act against the plaintiff in light of the legal principles of the previous judgment. Although the original judgment was insufficient, the decision that the plaintiff cannot exercise the right to revoke a fraudulent act cannot be justified.
On the first ground of appeal, the court below erred by misapprehending the legal principles as to the amount of damages suffered by the plaintiff, on the ground that the court below rejected the plaintiff's conjunctive claim on the ground that the court below did not have any data to recognize the amount of damages suffered by the plaintiff, and the amount of damages suffered by the plaintiff due to the purchase by re-trade without dispute between the parties, and the amount of the contract deposit, etc. paid by the plaintiff to the plaintiff, which was sold to the plaintiff at the price of 5,580,000.
Justices Kim Du-il (Presiding Justice)