[소유권이전등기말소등][공1995.3.15.(988),1284]
(a)whether the right of revocation may be exercised in order to preserve a claim for a specific thing;
B. Whether the creditor’s claim against the revocation creditor should be arising before the fraudulent act
(c) requirements for double trade to be null and void as a juristic act contrary to social order;
A. The obligee’s right of revocation is not allowed to exercise the right to preserve the obligor’s property for all creditors by revoking the obligor’s property, where the obligor, knowing that it would prejudice the obligee, as a right to preserve the obligor’s property for all creditors.
B. Since it cannot be said that a fraudulent act would prejudice the creditor who acquired the right after the fraudulent act, the creditor's claim is natural in view of the nature of the creditor's right of revocation.
C. In order to make double sale invalid as a juristic act contrary to social order, the fact that the transferee knew of the second transfer is insufficient, and the transferor actively participated in the transferor’s breach of trust and the transfer should be made.
(b)Article 406(c) of the Civil Code;
A. Supreme Court Decision 73Da1954 delivered on July 26, 1978 (Gong1988, 584) 91Da6757 delivered on July 23, 1991 (Gong1991, 2224) (Gong1991, 2224). Supreme Court Decision 77Da2467 delivered on November 28, 1978 (Gong1984, 166)
Plaintiff 1 and 2 others, Attorneys Lee Jae-sung, Counsel for the plaintiff-appellant
Defendant-Appellant’s Regular Rotation
Seoul High Court Decision 92Na63773 delivered on November 30, 1993
All appeals are dismissed.
The costs of appeal are assessed against the plaintiffs.
The grounds of appeal are examined.
1. On the second ground for appeal
The obligee’s right of revocation is not allowed to exercise the right to preserve the obligor’s property for all creditors by cancelling the act and restoring the obligor’s property to its original state by knowing that the obligor would prejudice the obligee’s property (see, e.g., Supreme Court Decision 64Da1483, Mar. 30, 1965; Supreme Court Decision 73Da1954, Jul. 26, 1974; Supreme Court Decision 87Da1586, Feb. 23, 198; Supreme Court Decision 91Da6757, Jul. 23, 1991; Supreme Court Decision 91Da6757, Feb. 15, 1962; Supreme Court Decision 197Da1678, Jul. 16, 197; Supreme Court Decision 2007Da16784, Jul. 16, 197). 207; Supreme Court Decision 2007Da16787, Jul. 16, 197, 197
Under this view, the court below is justified in rejecting the Plaintiffs’ primary claim based on the obligee’s right of revocation, and there was no error by misapprehending the exercise of obligee’s right of revocation or the legal principles on revocation of fraudulent act. The part pointing this out out in the grounds of appeal
2. On the third and fourth points
Examining the reasoning of the judgment of the court of first instance cited by the court below in light of the records, the court below's measure of maintaining the judgment of the court of first instance is just, unless there is any evidence that the contract of this case between the non-party 1 and the defendant is false, or that the defendant actively participated in the double transfer of the real estate of this case by the non-party 2, who is the husband of the non-party 1, is not in violation of the rules of evidence or there is a mistake in finding facts without any evidence. Meanwhile, if the double sale is null and void as a juristic act contrary to social order, the fact that the transferee was aware of the double transfer is insufficient and the transfer should be made by actively participating in the transferor's breach of trust (see Supreme Court Decisions 80Da1034, Jan. 13, 1981; 83Meu1347, Dec. 13, 1983; 89Meu1429, Nov. 28, 1989).
3. On the fifth ground for appeal
Examining the reasoning of the judgment below in light of the records, the court below is just in holding that the payment deposit of the claims guaranteed by the registration of transfer of ownership in the name of the defendant in subrogation of the non-party 1 is not effective since the defendant completed the settlement procedure for satisfaction of the claims secured by the above transfer of ownership to satisfy the claims guaranteed by the above transfer of ownership, and there is no violation of the principle of free evaluation of evidence in the judgment of evidence completed in the process. The part of the grounds of appeal pointing this out is without merit.
4. On the first ground for appeal
Examining the reasoning of the lower judgment and the reasoning of the first instance judgment cited by the lower court in light of the records, the lower court’s rejection of the Plaintiffs’ claims through the evidence cooking process as stated in the judgment is justifiable, and it cannot be deemed that there was an error in violation of the rules of evidence that deviates from the bounds of the principle of free evaluation of evidence in the judgment of evidence, and the rejection of the instant claims through the evidence judgment process is not contrary to the social justice and the principle of equity. Of the grounds for
5. Therefore, all appeals of this case are dismissed, and the costs of appeal are assessed against the appellant. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-chul (Presiding Justice)