[2] Whether the creditor's application for provisional disposition prohibiting the disposal of real estate which is the object of a fraudulent act and the completion of the registration of provisional disposition prevents the extinction due to the expiration of the exclusion period of the creditor's right of revocation (negative)

[2] General formation right can prevent the extinction of a right only by exercising the right outside the trial as well as by exercising the right within the exclusion period. However, in the case of a right of revocation of a fraudulent act, the right to institute a lawsuit which requires a judgment as well as the expression of intent of the right holder for the effective exercise of the right, such as the right to revoke a fraudulent act, is not extinguished as the right to institute a lawsuit is required for the exercise of the right in accordance with the nature of the right, and therefore, the right to institute a lawsuit within the exclusion period is not extinguished. The provisional disposition as to the dispute, such as the provisional disposition prohibiting the disposal, is merely a preservative measure aimed at fixing and maintaining the present state of the specific object in order to preserve the execution in a case where winning the lawsuit in the lawsuit. Thus, it cannot be said that the application for prohibition of disposal is filed or the provisional disposition registration on the above real estate has been completed, thereby preventing extinguishment

2. Litigation costs shall be borne by the plaintiff.

On September 13, 1996, the plaintiff entered into a monetary loan agreement with the non-party owner on the part of the non-party owner on September 13, 1996, and lent 6,000,000 to the above owner of the ship with the due date set on June 17, 1998. However, the plaintiff filed a lawsuit claiming the return of the above loan against the owner of the ship because the owner of the ship did not pay it, and the plaintiff was subject to the Daejeon District Court Decision 2001Da2100 delivered on June 12, 200, which ordered the payment to the owner of the ship. The above owner of the ship filed a lawsuit against the defendant who was the only property of the plaintiff et al. on October 8, 1996, who was the plaintiff's owner of the ship, and revoked the ownership transfer registration under the name of the defendant on June 19, 196.

2. Determination:

A. Determination on the litigation requirements

First of all, an action for revocation of a fraudulent act and a claim for restitution should be brought within five years from the date of the legal act (Article 406(2) of the Civil Act). The above period is a exclusion period, and even if the defendant does not assert its application, the court should examine and determine the progress ex officio (see Supreme Court Decision 74Da1700, Apr. 8, 1975; Supreme Court Decision 80Da795, Jul. 22, 1980; Supreme Court Decision 9Da18725, Oct. 13, 200; Supreme Court Decision 9Da18725, Oct. 13, 200; Supreme Court Decision 9Da18725, Oct. 4, 1996; Supreme Court Decision 2002Da25, Feb. 23, 2002; Supreme Court Decision 2002Da25, Mar. 5, 2002).

B. Judgment on the Plaintiff’s assertion

On June 29, 2001, prior to the expiration of the above limitation period, the Plaintiff filed a provisional injunction to preserve the claim for cancellation of ownership transfer registration on the above real estate with the Daejeon District Court's official branch office on June 29, 2001, for the purpose of preserving the claim for cancellation of ownership transfer registration due to fraudulent act, and the above provisional injunction was accepted on the same day, and the provisional injunction registration was completed on June 30, 2001. Thus, the Plaintiff asserted that the above provisional injunction should be deemed to have been filed within the exclusion period against the above provisional injunction between the

However, in the case of general formation right, it can prevent the extinction of right only by exercising not only the right within the exclusion period but also by exercising the right outside the trial (see Supreme Court Decision 2000Da15371, Jun. 9, 200). However, in the case of formation right which requires not only the expression of the right holder's intent for the effective exercise of right such as the right to revocation of fraudulent act, but also by the formation right which requires the formation decision, the right to institute a lawsuit in accordance with the nature of the right is not extinguished within the exclusion period. As such, in the case of a preliminary injunction on dispute such as the provisional injunction on disposal, it is merely a preservative measure aimed at fixing and maintaining the present state of the specific object in order to preserve the execution if the plaintiff won the lawsuit in the merits, and thus, it cannot be viewed that the effect of preventing the extinction of right due to the expiration of the exclusion period can not be seen as being caused only by the plaintiff's application for prohibition of disposal or the registration of provisional disposition on the above real property.

3. Conclusion

Therefore, the plaintiff's lawsuit of this case is unlawful and dismissed, and it is so decided as per Disposition.

Judges Hong-ho