사해행위취소
1. The part against the defendant among the judgment of the court of first instance against the defendant B is revoked, and the plaintiff as to the revoked part against the defendant B.
1. The reasoning for this part of the judgment of the court is the same as that of the corresponding part of the judgment of the court of first instance, and thus, this part is cited by the main text of Article 420 of the Civil Procedure Act
2. Determination on the cause of the claim
A. The Plaintiff’s assertion against D on September 23, 2016, acquired the amount of KRW 215,752,000 as the preserved claim against D following the revocation of the fraudulent act.
However, on December 3, 2014, under the process of a lawsuit seeking revocation of the said fraudulent act, D entered into the instant mortgage agreement with Defendant C with the maximum debt amount of KRW 58,500,00 with respect to the instant real estate, and completed the establishment of a mortgage on the following day, and entered into the instant property division agreement with Defendant B on March 23, 2015. The instant mortgage agreement and the instant property division agreement constitute a fraudulent act.
Meanwhile, the value of the instant real estate is KRW 380,000,000, and since the amount of the secured debt of the instant real estate established prior to the said fraudulent act is KRW 280,000,000,000, the portion of the instant real estate provided to the joint security is KRW 100,000,000. As to the cancellation of the instant mortgage agreement and the instant property division agreement, the amount of the secured claim and the instant property division agreement shall be revoked within the scope of KRW 100,00,000, which is the lesser amount between the secured claim and the joint security value, and the Defendant C shall be entitled to the cancellation of the said establishment registration and the Defendant B shall be entitled to compensation for the equivalent amount of KRW 100,00,000,000, which is the lesser
B. In principle, it is required that a claim protected by the obligee’s right of revocation for determination on the existence of a preserved claim has arisen prior to the commission of an act that can be viewed as a fraudulent act. However, at the time of such fraudulent act, there has already been a legal relationship that serves as the basis for the establishment of the claim, and the claim should be established in the near future by based on such legal relationship.