수익자가 자신의 채권과 취소채권자의 원상회복청구권과 상계를 주장하며 지급을 거절하는 것은 허용되지 아니함[일부패소]
Seoul Eastern District Court 2011 Gohap10318 ( October 27, 2011)
It is not allowed that a beneficiary refuses payment by asserting a set-off against his claim and the right of cancellation creditor's claim for restitution.
With respect to the right of the creditor who is a beneficiary to demand a distribution of the amount corresponding to his/her own claim, the creditor who is the beneficiary refuses to pay the amount of the divided amount by claiming a set-off of the amount of his/her claim for restitution, or refuses to pay it by claiming a set-off against the creditor's right to claim restitution
Article 30 of the National Tax Collection Act
2011Na86371 Revocation of Fraudulent Act
Korea
Yellow AA
Seoul Eastern District Court Decision 2011Gahap10318 Decided September 27, 2011
April 17, 2012
May 3, 2012
1. The plaintiff's appeal against the defendants and the incidental appeal against defendant KimB are all dismissed.
2. The costs incurred by the appeal shall be borne by the Plaintiff, Defendant KimB, respectively.
and purport of appeal, incidental appeal
1. Purport of claim
The contract on each of the donations of KRW 000 on September 17, 2007, KRW 000 on November 4, 2007, and KRW 000 on December 11, 2007 between Defendant KimB and YellowCC shall be revoked, and Defendant KimB shall pay to the Plaintiff the amount of KRW 000 and the amount at the rate of KRW 5% per annum from the day following the day this decision became final and conclusive to the day of full payment. Defendant Yellow Germany shall cancel the contract on the donation of KRW 00 and the amount at the rate of KRW 5% per annum from the day following this decision to the day of full payment. Defendant Yellow Asia shall pay to the Plaintiff at the rate of KRW 00 and that of KRW 5% per annum from the day after this decision became final and conclusive.
2. Purport of appeal
The judgment of the court of first instance is modified as follows. On March 3, 198, the incidental appeal of the court of first instance against the defendant KimB is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed.
1. Quotation of judgment of the first instance;
The court's explanation in this case is "No. 8 Eul" on six pages of the judgment of the court of first instance.
Then, “B” No. 9, No. 10, and “Defendant KimB” in the 8th sentence are added to “B obtained a loan of KRW 000 from an enterprise bank on March 14, 2006,” respectively, and the following judgments are as stated in the reasoning of the judgment of the first instance except for addition of the following judgments, they are cited in accordance with the text of Article 420 of the Civil Procedure Act.
2. Additional determination
A. Determination on Defendant KimB’s assertion
In light of the above facts, KimB stated that the defendant's act of set-off against the defendant 2 on April 26, 2006 was not a fraudulent act, and that the defendant's act of setting-off against the defendant 2 was not a fraudulent act. However, the defendant KimB's act of setting-off against the defendant 1 on April 26, 200 and the defendant 2's act of paying-off against the defendant 2 was not a fraudulent act. However, the defendant KimB's claim against the defendant 2 for reimbursement against the plaintiff 1 and 9 on March 14, 2006 that the defendant's claim against the defendant 2 was not a fraudulent act of set-off against the defendant 2. The defendant's claim against the defendant 2 for reimbursement against the plaintiff 1 on the ground that Kim Jong-B's claim against the defendant 2 was not a fraudulent act of set-off against the defendant 2. It is not sufficient to recognize that the defendant 200 won paid on April 26, 2006 as the claim for reimbursement against the defendant 2.
B. Determination on the Plaintiff’s assertion against the Defendant YellowA
The Plaintiff asserts that “Defendant Yellow A has engaged in money transactions over a long period of time since 2001, and Defendant YellowA has in collusion with other creditors, such as receiving KRW 00 million on December 12, 2007 and then transferring it again to the account of Defendant KimB.” If the entire pleadings were to have been gathered in view of the result of the meeting to submit a report to the President of the Korea Foreign Exchange Center, Defendant YellowA received KRW 0 million from YellowCC on December 12, 2007, and transferred the same amount to KimB’s account upon request from the YellowCC, but in light of the above circumstances, it is difficult to conclude that the said fact alone is a donation of the amount of KRW 0 million of the YellowCC. Therefore, the Plaintiff’s claim for payment of KRW 0 million on the donation of the amount to Defendant Yellow A.
3. Conclusion
Therefore, all incidental appeals by the plaintiff and defendant KimB are dismissed as it is without merit. It is so decided as per Disposition.