[소유권말소등기][집49(2)민,57;공2001.10.15.(140),2169]
[1] Whether a claim for revocation of a fraudulent act under Article 406 (1) of the Civil Code and a claim for restitution can be separated (affirmative)
[2] Whether a claim for revocation of a fraudulent act may be filed after the lapse of the exclusion period where the claim for restitution is filed within the exclusion period (affirmative)
[1] Where a creditor claims revocation of a fraudulent act and restitution to its original state pursuant to Article 406(1) of the Civil Act, he/she may first claim revocation of the fraudulent act and then claim restitution to its original state later.
[2] Where a creditor claims the revocation of a fraudulent act and restitution pursuant to Article 406(1) of the Civil Act, if a claim for the revocation of a fraudulent act was filed within the period stipulated in Article 406(2) of the Civil Act, the claim for restitution may be made even after the said period expires.
[1] Article 406 (1) of the Civil Act / [2] Article 406 (1) and (2) of the Civil Act
Plaintiff 1 and two others (Attorney Seo-young, Counsel for the plaintiff-appellant)
Korea
Defendant (Law Firm Future, Attorney Park Jong-soo, Counsel for the defendant-appellant)
Seoul High Court Decision 2000Na18587 delivered on January 17, 2000
The appeal is dismissed. The costs of appeal are assessed against the defendant.
1. The court below concluded a lease agreement with the non-party 2 on behalf of the non-party 1 during the period from April 30, 1997 to August 14, 197 on the non-party 1, and the non-party 1 entered into a lease agreement with the non-party 1 on the non-party 1 in Mapo-gu Seoul ( Address 1 omitted) and ( Address 2 omitted). The non-party 1, who was liable for the repayment of the lease deposit to the plaintiffs under the contract, was omitted from December 1997, when the non-party 1 entered into a lease agreement with the non-party 1 as to the real estate of this case on January 21, 1998 and completed the registration of the establishment of a neighboring mortgage with the defendant as the creditor on January 22, 1998, and thereafter, it is justified that the non-party 1 had no special circumstance alleged in the grounds of appeal against the non-party 1's act of establishing a mortgage or the non-party 1's act in bad faith.
2. When a creditor claims the revocation of a fraudulent act and restitution to its original state in accordance with Article 406(1) of the Civil Act, he/she may first claim the revocation of the fraudulent act and then make a subsequent claim for restitution to its original state later. In such cases, if a claim for the revocation of a fraudulent act was filed within the period provided for in Article 406(2) of the Civil Act, a claim for restitution to
In the same purport, the court below is justified in holding that Article 406 (2) of the Civil Act does not apply to the portion of the additional claim, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal. Accordingly, the ground of appeal on this part is rejected.
3. Therefore, the appeal shall be dismissed, and the costs of the lawsuit shall be borne and so decided as per Disposition.
Justices Zwon (Presiding Justice)