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(영문) 서울고등법원 2016.10.27 2015나2054095
사해행위취소
Text

1. The judgment of the court of first instance is modified as follows.

In the case of the defendant and B, the wife population C is 1,478 square meters.

Reasons

1. The grounds for this part of the facts of recognition are as stated in the reasoning of the judgment of the court of first instance, except for the case where the “loan Claim” in Section 12 of Section 2 of the judgment of the court of first instance is deemed to be a joint and several guaranteed obligation, and thus, they are cited as it is in accordance with Article 420 of the Civil Procedure Act.

2. The occurrence of the right to revoke the fraudulent act;

A. Where an obligor donated his/her property to another person under excess of his/her obligation to determine the Plaintiff’s assertion, such an act constitutes a fraudulent act, barring special circumstances (see Supreme Court Decision 2005Da28686, May 31, 2007). Thus, barring special circumstances, the donation of the instant real property to the Defendant under excess of obligation constitutes a fraudulent act detrimental to the Plaintiff, a creditor, barring special circumstances.

In addition, in full view of the details and time of the conclusion of the instant gift contract, the relationship between the defendant and B, and the excess of obligations under the above facts revealed in the above recognition, it is reasonable to deem that B had the intention of deception at the time of conclusion of the instant gift contract.

B. The Defendant asserted that the instant gift agreement does not constitute a fraudulent act, as the Defendant donated the instant real estate to the Defendant in the meaning of payment in kind or providing collateral for the Defendant’s debt of KRW 145,00,000 to the Defendant. However, in a case where the obligor’s property is insufficient to fully repay the obligor’s obligation, barring any special circumstance, if the obligor provided the obligor’s property to a certain obligee as payment in kind or as a collateral, it would immediately prejudice the interests of other obligees, and thus, constitutes a fraudulent act in relation to other obligees (see Supreme Court Decision 2010Da68084, Jan. 13, 201). Therefore, the Defendant’s argument is without merit. Furthermore, the Defendant continues to operate its business by providing D’s funds, operated with the husband, under the circumstances where it is difficult to continue its business due to the shortage of funds.

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