[재산분할청구등][공2013하,2069]
Whether a waiver of a right to revoke a claim for division of property due to divorce not embodied by consultation or adjudication is subject to a right to revoke a creditor’s right of revocation (negative)
The right to claim a division of property by divorce is a right to claim a division of property against the other party at the time the divorce is established, and not only the legal effect is established when one of the parties to the divorce has a right to claim a division of property against the other party, but also the specific right is not established because the scope and contents of the right are unclear and unclear until the specific contents are formed by consultation or adjudication. Therefore, the right to claim a division of property, which is not specified by consultation or adjudication, does not fall under the debtor'
Articles 406 and 839-2 of the Civil Act
Supreme Court Decision 98Meu1193 delivered on November 13, 1998 (Gong1998Ha, 2870) Supreme Court Decision 98Da58016 delivered on April 9, 199 (Gong199Sang, 851)
Plaintiff 1 and one other (Attorney Kim Young-min et al., Counsel for the plaintiff-appellant)
Defendant (Law Firm LLC, Attorneys Lee Han-hun et al., Counsel for the defendant-appellant)
Seoul Northern District Court Decision 2012Na3515 decided December 26, 2012
All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.
The grounds of appeal are examined.
The right to claim a division of property due to divorce is a right that one of the parties to a divorce has a right to claim a division of property against the other party at the time the divorce has been established (see Supreme Court Decision 98Meu1193, Nov. 13, 1998), and it cannot be said that the specific right has occurred since the scope and contents of the right are unclear and uncertain until the specific contents have been formed by consultation or adjudication (see Supreme Court Decision 98Da58016, Apr. 9, 199). Thus, the right to claim a division of property, which has not been specified by consultation or adjudication, does not fall under the debtor's responsible property, and waiver of the right to claim a division of property cannot be subject to the creditor's right to revoke.
In the same purport, the court below is just in holding that the act of the non-party, who is the debtor of the plaintiffs, renounced the right to claim division of property against the defendant without consultation or adjudication after divorce with the defendant does not become subject to revocation of the fraudulent act. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending
Meanwhile, the Plaintiffs also appealed on the part demanding the implementation of the procedures for the registration of ownership transfer based on the termination of title trust by the selective claimant, but there is no objection to the appellate brief, and there is no objection to the petition of appeal.
Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yang Chang-soo (Presiding Justice)