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(영문) 서울동부지방법원 2016.04.28 2015가합2209

사해행위취소

Text

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. On October 13, 2008, C borrowed KRW 910 million from the Plaintiff’s ASEAN at interest rate of KRW 2.5%, and after the maturity of 3 years, C issued a promissory note as of November 11, 2008, the face value of KRW 910 million, the due date of payment, and the due date of November 11, 201, and issued a promissory note as of KRW 390,000,000 to E.

B. On the other hand, on June 27, 201, C entered into a contract for the transfer of the instant shares (hereinafter “instant contract”) with the Defendant with the content that the shares 2,650 shares of Co., Ltd. D (hereinafter “Nonindicted Company”) held by C (hereinafter “Nonindicted Company”) were determined as KRW 149 million and transferred to the Defendant with the purchase price as KRW 149 million. On the same day, C paid KRW 149 million to C, and C completed the procedure for the transfer of the shares by the Defendant.

C. Thereafter, on August 20, 2012, E transferred to the Plaintiff, “C the Promissory Notes amounting to KRW 910 million and interest thereon after November 11, 2011” (hereinafter “instant Promissory Notes Bonds or Obligations”), and completed the procedure for notifying the assignment of claims.

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 5 (including each number), the purport of the whole pleadings

2. The assertion and judgment

A. The Plaintiff’s assertion (1) that C transferred the instant shares to the Defendant in excess of the obligation owed to the obligees as well as the obligation owed by C to E constitutes a fraudulent act detrimental to the general obligees. Therefore, the instant contract should be revoked.

(2) Restoration following the revocation of fraudulent act is a principle to return originals. However, at present, the non-party company should not have any substantial existence because it actually discontinued its business.