2. The costs of appeal are assessed against the Defendant and the incidental costs of appeal.

2. According to Article 68(1) of the former Bankruptcy Act (repealed by Article 2 of the Addenda to the Debtor Rehabilitation Act, Act No. 7428, Mar. 31, 2005) regarding the part seeking the denial of a contract establishing a mortgage among the instant lawsuit, the right to set aside under the Bankruptcy Act provides that the right to set aside under the Bankruptcy Act may be exercised not only by a lawsuit but also by defense. In this case, the term “exercise by a lawsuit seeking the right to set aside” means a lawsuit seeking the performance of the right to set aside according to the legal effect that arises when the act subject to set aside loses its effect retroactively, or seeking the existence or non-existence of a legal relationship.

(See Supreme Court Decision 2005Da56865 Decided May 28, 2009, etc.). In light of these legal principles, the right to set aside can be exercised not only by the filing of the lawsuit but also by the defense. The lawsuit filed by the means of exercising the right to set aside is not by the right to set aside itself, but by the means of exercising the right to set aside, the subject matter of the lawsuit is a claimant for the performance of the right to set aside, the existence of legal relations, or the absence

Therefore, unlike the obligee's right of revocation that can be exercised only by filing a lawsuit, the avoidance power is not effective, but it does not take effect when the judgment declaring the avoidance becomes final and conclusive, and it is possible to recover assets from the country by seeking the implementation of restitution due to the act that becomes invalid as a result of the exercise of the avoidance power by means of the action of denial.

The plaintiff denies the contract to establish a mortgage concerning the instant real estate between the debtor and the defendant, and at the same time, is a restitution by exercising the right to set aside.