사해행위취소
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
1. Basic facts
A. On July 27, 2012, the Plaintiff entered into a contract to purchase one of the used machinery of NC Flashers from C and D for KRW 350,000,000 (hereinafter “instant sales contract”), and paid KRW 35,000,000 to C and D on the same day.
B. On May 18, 2016, the Plaintiff filed a claim against C and D for the return of the down payment with Changwon District Court 2016Kadan1338 (2). On May 18, 2016, the Plaintiff received a decision in lieu of conciliation that “C and D shall jointly and severally pay to the Plaintiff KRW 27,00,000,000, on condition that it shall be paid to the Plaintiff at the last day of each month from June 2016 to February 2017 (hereinafter “instant compulsory conciliation decision”), and the said decision was finalized around that time.
C. Meanwhile, on January 23, 2013, C donated real estate (hereinafter “instant real estate”) indicated in the attached list to the Defendant (hereinafter “instant gift agreement”) and completed the registration of ownership transfer to the Defendant on January 25, 2013.
[Reasons for Recognition] Facts without dispute, Gap 1, 2 evidence, Eul 1 evidence, the purport of the whole pleadings
2. The assertion and judgment
A. On September 5, 2012, the Plaintiff asserted 1) C and D: “A and D shall return KRW 35,000,000 to the Plaintiff, because the machinery that was scheduled to purchase was in excess of another person.” Accordingly, the instant sales contract was rescinded, and C is obligated to return the said KRW 35,00,000 to the Plaintiff due to its restitution, and the said right to claim restitution is a preserved claim for obligee’s right to claim restitution. (ii) Even if the said right to claim restitution is not recognized, there was a legal relationship which already forms the basis for establishing a claim following the conclusion and cancellation of the instant sales contract at the time of the conclusion of the instant donation contract, and there was a high probability as to the fact that the claim was established in the near future, and in fact, it was the compulsory adjustment decision of the instant case in the near future.