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(영문) 서울중앙지방법원 2016.11.23 2015가합25964
대여금
Text

1. Defendant B shall pay to the Plaintiff KRW 200,000,000 as well as 24% per annum from November 30, 2010 to the date of full payment.

Reasons

1. Basic facts

A. On May 4, 2009, the Plaintiff lent KRW 240 million per annum to Defendant B at a rate of 24% per annum.

Defendant B did not pay the principal and interest at all to the Plaintiff on October 2009, in addition to the payment of part of the interest on the above loan.

B. Meanwhile, on June 23, 2009, Defendant B donated KRW 160 million to Defendant C, who is a son, (hereinafter “instant donation contract”).

[Reasons for Recognition] Facts without dispute, entry of Gap evidence 1 to 13 (including each number), the purport of the whole pleadings

2. Confession as to the claim against Defendant B (Articles 208(3)2 and 150(3) of the Civil Procedure Act)

3. Determination as to the claim against Defendant C

A. 1) According to the above facts, the existence of the right to revoke a fraudulent act is acknowledged. The Plaintiff already held a loan claim of KRW 200 million against Defendant B at the time of the instant gift agreement, and thus, the Plaintiff’s above loan claim against Defendant B may be a preserved claim for the instant creditor’s right to revoke a fraudulent act. 2) The fact that Defendant B was in excess of the obligation at the time of the instant gift agreement, which was insolvent by Defendant B, does not conflict between the parties.

(A) According to the evidence evidence Nos. 2 through 3, Defendant B, in addition to the debt owed to the Plaintiff, borrowed money several times from 2008 to 2013, but did not repay it, and received a decision of non-permission after having rendered an application for immunity. In light of such circumstances and the overall purport of pleadings, Defendant B may be deemed to have been in excess of the debt at the time of the instant donation contract, barring any special circumstance, if the debtor donated his/her property to another person in excess of the debt established by the fraudulent act, such act constitutes a fraudulent act (see, e.g., Supreme Court Decisions 97Da57320, May 12, 1998; 2006Da11494, May 11, 2006).

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