(영문) 의정부지방법원 2018.11.15 2018나206029

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(영문) 의정부지방법원 2018.11.15 2018나206029

사해행위취소

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1. The plaintiff's claim that was changed in exchange in the trial is dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. The court's explanation on this part of the basic facts is the same as the corresponding part of the reasoning of the judgment of the court of first instance, and thus, they are cited by the main sentence of Article 420 of the Civil Procedure Act.

2. The purport of the Plaintiff’s assertion is that: (a) KRW 3,686,215, which was part of the money remitted on May 12, 2014 to the account in the name of the Defendant, the Defendant was either donated to the Defendant or entrusted to the account in the name of the Defendant with respect to this money; and (b) reduced C’s property of liability; (c) thus, it shall be revoked by fraudulent act; and (d) the Defendant shall pay the Plaintiff the said KRW 3,686,215 and the damages for delay thereof.

3. Determination

A. In order to have concluded a donation contract with a false agreement on money remitted by the debtor to another person’s deposit account, it shall be interpreted that there is a mutual agreement with the debtor on the grant of money free of charge by "donation" so that it can be reverted to another person ultimately, first of all, with the debtor and another person.

And the burden of proof on this is the creditor who asserts that the above remittance act is a fraudulent act subject to the creditor's right of revocation.

Meanwhile, in the event of a transfer of money to another person’s deposit account, the remittance may be made on the basis of a variety of legal causes. In order to avoid tracking the taxation authority, the person with a certain personal relationship consented or understood that he/she should transfer money to his/her own deposit account, knowing that the money was transferred to his/her own deposit account.

Unless there exist any special circumstances, the remitter and the account holder should be objectively entitled to control his/her own deposit account, as above, barring special circumstances.

참조조문

-민사소송법 제420조

유사 판례

-광주지방법원 2018.03.30 2017가단513663

-대법원 2012. 7. 26. 선고 2012다30861 판결

-부산지방법원 2016.03.29 2014가단240446

-대법원 2018.12.27 2017다290057

-대법원 2018. 12. 27. 선고 2017다290057 판결