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(영문) 광주고등법원 2019.11.22 2019나21094
사해행위취소
Text

1. The judgment of the first instance, including the claims extended by this court, shall be modified as follows:

The instant lawsuit is filed.

Reasons

1. Basic facts

A. The Plaintiff loaned KRW 1,505,980,000 to C (hereinafter “C”) on several occasions from May 2012 to April 2015.

B. On November 20, 2013, C entered into a sales contract with the Defendant on April 20, 2015, with a view to repaying KRW 180,000,000,000 borrowed from the Defendant (hereinafter “instant sales contract”). On the same day, C entered into a sales contract with the Defendant to sell each of the instant real estate listed in the “Real Estate List” (hereinafter “each of the instant real estate”) to the Defendant for KRW 780,00,000, and completed the registration of ownership transfer with respect to each of the instant real estate to the Defendant on the same day.

C. At the time of entering into the instant sales contract, each of the instant real estate was registered under the name of creditor D, and the establishment registration of a mortgage consisting of the maximum debt amount of 480,000,000,000 as of October 31, 2013, and the establishment registration of a mortgage consisting of 240,000,000 as of October 20, 2014, respectively (the total debt amount of the actual collateral was KRW 600,000,000), and each of the said mortgages was revoked on July 13, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, Eul evidence Nos. 1 through 3, 5, the purport of the whole pleadings

2. The parties' assertion

A. The Plaintiff had a claim for loans equivalent to KRW 1,505,980,000 against the Plaintiff C.

However, C entered into the instant sales contract with the Defendant in excess of the debt, and completed the registration of ownership transfer with respect to each of the instant real estate, so the instant sales contract constitutes a fraudulent act, and is presumed to constitute C and the Defendant’s bad faith.

Therefore, the instant sales contract should be revoked within the limit of KRW 342,070,80, which deducts the secured debt amount of KRW 600,000,000, which was set up before the conclusion of the instant sales contract, from the market price of KRW 942,070,80 at the time of the closing of argument of each of the instant real estate at the time of the instant sales contract, within the limit of KRW 342,070,80, and the Defendant’s restitution to its original state,

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