채권자취소권 행사에 있어 제척기간의 기산점인 채권자가 ‘취소원인을 안 날’의 의미[각하]
The meaning of "the date when the creditor becomes aware of the cause of revocation" in the exercise of the right of revocation.
The plaintiff, after investigating the debtor's property for the seizure disposition, seized the whole property, and the debtor was already responsible for the collateral security debt to the agricultural cooperatives, etc., but was aware of the fact that the registration of the establishment of the collateral was completed to the defendants. Thus, the plaintiff at least after the seizure registration was completed, it can be recognized that the debtor was aware of the debtor's intention to cause harm
2013Du11241 Revocation of fraudulent act
Korea
1. Park A. 2. KimB
May 15, 2014
May 29, 2014
1. The lawsuit against the Defendants shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
(1) On June 4, 2010 regarding each real estate listed in the separate sheet between Defendant ParkA and KimCC, the contract to establish a mortgage is revoked on June 3, 2010 between Defendant KimB and KimCC on the real estate listed in the separate sheet. (2) The Plaintiff is subject to the procedure for registration of cancellation of the registration of the establishment of a mortgage on the real estate listed in the separate sheet No. 26624, Jun. 4, 2010, as to each of the real estate listed in the separate sheet, the former Special District Court of the Republic of Korea on June 4, 2010; and the Defendant KimB performed the procedure for registration of cancellation of the registration of the establishment of a mortgage on the real estate listed in the separate sheet No. 26402, Jun. 3, 2010.
ex officio, we examine the legitimacy of the instant lawsuit.
"A lawsuit for revocation of a fraudulent act shall be filed within one year from the date when the creditor becomes aware of the cause for revocation (Article 406 (2) of the Civil Act), and "the date when the creditor, who is the starting point for the exclusion period, becomes aware of the cause for revocation in the exercise of the right of revocation" means the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act while being aware of the requirement for the right of revocation, namely, that is, the debtor knew of the fact that he/she committed a fraudulent act. Therefore, it is insufficient to simply recognize that the debtor conducted a disposal act of the property, and it is difficult to find out that the legal act is an act detrimental to the creditor that caused a shortage of joint security of the claim or lack of joint security that was already insufficient to satisfy the debtor's intent to cause harm to the creditor, and further, it is also necessary to find that the debtor had an intention to cause harm to the debtor's property at the time of sale of the real estate in accordance with Article 207Da63102, Mar. 26, 2009.
Therefore, the plaintiff investigated the property of KimCC to the extent identified by the plaintiff, and seized each of the real estate of this case, which is the whole property of KimCC, within the extent identified by the plaintiff. In the course of the investigation, the plaintiff confirmed a certified copy of the registry of each of the real estate of this case, and confirmed that KimCC had already completed the registration of establishment of each of the real estate of this case to the defendants, although KimCC had already borne an amount equivalent to the OOO of the collateral obligations of this case to DDR, it is reasonable to deem that the plaintiff was aware of the fact that the plaintiff and the defendants knew that he would harm the plaintiff who was the creditor while he was in excess of the obligation. Since it is apparent in the record that the plaintiff filed the lawsuit of this case on December 17, 2013, the lawsuit of this case exceeded the exclusion period.
Therefore, the instant lawsuit is unlawful.