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(영문) 서울중앙지방법원 2015.01.20 2013가단5177258
구상금 및 사해행위 취소의 소
Text

1. Defendant A and B jointly and severally filed against the Plaintiff KRW 91,180,619 and KRW 91,180,388 among them.

Reasons

1. Determination as to the claim against Defendant A and B

(a) Indication of claims: To be as shown in the reasons for the claims;

(b) Judgment by public notice (Article 208 (3) 3 of the Civil Procedure Act);

2. Determination as to the claim against Defendant C

A. The following facts can be acknowledged in full view of the facts as stated in the grounds for the claim and the purport of the entire pleadings in Gap evidence Nos. 1 through 7.

1) On July 5, 2013, Defendant B is the instant real estate indicated in the separate sheet indicating real estate (hereinafter referred to as “instant real estate”) which is the only real estate in excess of the debt.

As to Defendant C and the maximum debt amount of KRW 70,000,000 (hereinafter referred to as the “mortgage-backed mortgage contract of this case”), the mortgage-backed claim is deemed to be established

(2) On October 22, 2013, the Industrial Bank of Korea filed an application for the auction of real estate rent D with respect to the instant real estate on October 22, 2013. On the above auction procedure, the court of execution prepared and deposited a distribution schedule that distributes the amount of KRW 60,455,027 to Defendant C, a mortgagee, to the said auction procedure.

B. Unless there are special circumstances, the act of an obligor providing real estate, the sole property of which is the debtor, which has already been missing in excess of his/her obligation, as credit security to any one of the creditors is a fraudulent act in relation to other creditors (see, e.g., Supreme Court Decision 88Meu23186, Sept. 12, 1989). According to the above facts of recognition, the instant mortgage contract constitutes a fraudulent act, and the act of Defendant C, the debtor, and the beneficiary, is presumed to be a bad faith of Defendant B, the debtor, to be a fraudulent act.

Therefore, barring any special circumstance, the mortgage contract of this case should be revoked by fraudulent act, and the defendant C transferred the dividend claim to the defendant B and notified the Republic of Korea of its purport.

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