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(영문) 부산지방법원 2016.11.01 2016가단315351
사해행위취소
Text

1. The contract to establish a right to collateral security concluded on February 15, 2016 between the Defendant and B regarding the real estate stated in the attached list.

Reasons

1. Facts of recognition;

A. On September 14, 2012, the Plaintiff filed a lawsuit seeking the return of unjust enrichment by the Busan District Court 2012Gahap44061, which was sentenced to partial winning of the provisional execution (hereinafter “instant judgment”) on January 13, 2016, to pay KRW 92,450,000 from the above court and damages for delay.

B. On February 15, 2016, immediately after the issuance of the judgment above, the Defendant concluded a mortgage agreement setting forth the maximum debt amount of KRW 75,000,000 as to the real estate indicated in the separate sheet (hereinafter “instant real estate”) with B as indicated in the separate sheet (hereinafter “instant mortgage agreement”). On the same day, the Defendant completed the registration of establishment of the instant real estate under the Busan District Court’s receipt number No. 9015.

C. B, around February 2016, at the time of entering into the instant mortgage contract, owned the instant real estate and a part of the share of the land subject to its site ownership (not clear whether there is separate property value), which is equivalent to KRW 175,00,000 at the market price, and owned an active property of KRW 191,657,332 in aggregate. On the other hand, B, including the Plaintiff, owned an active property of KRW 447,825,00 in total debts owed to creditors including the Plaintiff, and was in excess of its obligation.

[Ground of recognition] The fact that there is no dispute, entry of Gap's 1 through 5, purport of whole pleading

2. Determination:

A. The establishment of the fraudulent act was examined, the Plaintiff’s claim based on the instant judgment against B or the claim for return of unjust enrichment based on the Plaintiff’s claim against B was already incurred prior to the conclusion of the instant mortgage contract, and is the preserved claim against the right to revoke the fraudulent act.

Furthermore, barring any special circumstance, it would be a fraudulent act in relation to other creditors, including the Plaintiff, to offer security regarding the instant real estate, which is the only property for the Defendant, a specific creditor, as seen earlier.

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