2010Na949 Damage, etc.

Maximum 00

Daejeon Yusung-gu

Law Firm TelviS, Attorneys Choi Won-ro, Counsel for the plaintiff-appellant-appellant

Daejeon District Court Decision 201Na11446 delivered on April 1, 201

1. Oil 00;

Daejeon Central District:

Service Place Embling Group

2. KimO;

Daejeon Central District:

Attorney Han-young et al., Counsel for the defendant

Daejeon District Court Decision 2009Gohap5685 Decided December 10, 2009

June 9, 2010

June 23, 2010

1. The plaintiff's appeal against the defendant U20 shall be dismissed.

2. The plaintiff's appeal against the defendant Kim 00 is dismissed.

3. The costs of appeal shall be borne by the Plaintiff.

1. Purport of claim

A. The primary purport of the claim

① Defendant U.S.0 shall pay to the Plaintiff 150,000,000 won with 20% interest per annum from May 20, 2009 to the day of full payment.

② Revocation of the agreement between the Defendants on January 28, 2009 on the waiver of the right to claim division of property between the Defendants, and Defendant Kim 00 shall implement the registration procedure for transfer of ownership on January 28, 2009 with respect to each of the one-third shares of each of the real estate listed in the separate sheet with respect to each of the real estate listed in the separate sheet to Defendant 00.

B. Preliminary claim: the Defendants shall pay to the Plaintiff the amount of KRW 150,000 per annum with 20% per annum from the day following the delivery of the written correction of the claim to the day of complete payment.

2. Purport of appeal

In the judgment of the first instance court, the part against the plaintiff among the judgments against the plaintiff shall be revoked, and the first instance judgment shall be sought as to the first instance judgment, and the first instance judgment shall be sought to pay the plaintiff 150,000,000 won and the second instance judgment shall be paid with the amount calculated by the rate of 20% per annum from the day following the delivery of the written amendment of the claim of this case to the day of complete payment

1. Determination on the appeal against Defendant U20

A. An appeal is not permissible inasmuch as an appeal against a judgment unfavorable to himself/herself is intended to seek revocation or alteration of the judgment rendered in favor of himself/herself, and an appeal against the judgment rendered in favor of him/her is no matter of interest or subject to appeal (see, e.g., Supreme Court Decision 9Da61378, Jun. 14, 2002).

B. According to the records, even though the plaintiff filed a lawsuit against the defendant U200 to seek the payment of KRW 150 million and the amount of delayed loss (in a lawsuit for fraudulent act, only the beneficiary or the subsequent purchaser is qualified as the defendant in the lawsuit for fraudulent act, and there is no defendant's personality against the debtor, it is acknowledged that the plaintiff filed an appeal against the above judgment. Thus, the plaintiff's appeal against the defendant U20 has no interest in the appeal and is unlawful.

2. Determination on the appeal against Defendant Kim 00

A. Judgment on the main claim

(1) The plaintiff's assertion

The act of Defendant U.S.’s renunciation of the claim for the division of property on the real estate listed in the separate sheet (hereinafter “Non-Dongsan”) in divorce with Defendant Kim 00 shall be revoked as the act of causing damage to the Plaintiff, who is the obligee. Defendant Kim 00 is obligated to register the transfer of property on the instant real estate to Defendant U.S. 00 as the restitution following the above cancellation.

(2) Facts of recognition

(A) The Defendants, who completed the marriage report on August 2, 1985, were married on January 28, 2009.

(2) Defendant KimO purchased an apartment as stated in the [Attachment List No. 1 on March 2, 1999, which was during the marriage period, and lived in the above apartment with his family members. Even after the divorce, Defendant Kim 00 lives in the old mother XX, etc., and raises two undergraduate children.

(C) The real estate listed in the separate sheet No. 2 is the real estate which Defendant Kim 00 purchased under his name on January 5, 1990, and the real estate listed in the separate sheet No. 3 through No. 5 is the real estate the transfer registration of which was completed on January 22, 1975 as its original source.

(D) Defendant Kim 00 was working for the Company from September 5, 197 to September 30, 2000, and retired from the Department of Department Treatment on September 30, 2008, and Defendant Kim 0-208’s income was KRW 93,196,00,000 for income around 2009, and KRW 95,629,000 for income around 2009. On the other hand, Defendant Kim 00 was liable for a debt equivalent to KRW 47,80,00 for income at the end of 196, even though there was no particular profit as a family principal book.

[Ground of Recognition] A without dispute, Gap evidence 3-1, 2, 3, Eul evidence 4-2 through 4, Eul evidence 1-2, Eul evidence 2-2, Eul evidence 2-2, Eul evidence 4, Eul evidence 7-1 through 3, Eul evidence 8-2, Eul's evidence 14-1, 2, Eul's evidence 17-1, 2-2, Eul's evidence 17-2, the purport of the whole pleadings, the purport of the whole pleadings

(3) Whether the waiver of the right to claim a division of property by Defendant U.S. 00 is subject to the right to revoke the fraudulent act

(A) The purpose of the right to revoke a fraudulent act is to preserve the debtor's book property by revoking a fraudulent act between the debtor and the beneficiary. Therefore, in order to become the subject of the right to revoke a claim for division of property, the debtor should have the right to claim the division of property with the own property value, and it should be possible to enforce the law because it is included in the debtor's responsible property.

(B) The right to claim a division of property has a specific right, the content and scope of which have become final and conclusive, only in cases where a consultation between the parties or a division of property under the Family Litigation Act is changed into a specific monetary claim or a claim for payment. On the other hand, the right to claim a division of property without consultation or a trial remains in an abstract state, “a party to a divorce has the right to claim a division of property against the other party.” As such, the right to claim a division of property in a state of abstract right is the right to the right to the right to the parties’ free will.

C. As seen above, in order to enforce the right to claim a division of property, the right to claim an abstract pro rata property should be converted into a specific monetary claim or the right to claim a payment through consultation or adjudication. If so, in order to convert the debtor's abstract right to claim a division of property into a specific right to claim a division of property, the creditor's exercise of the right to claim a division of property by subrogation of the debtor (the right to claim a division of property under the Family Litigation Act) should be possible. It is reasonable that the right to claim a division of property is a right of good faith granted to one party to the

D. In the instant case, Defendant U.S. waives the right to claim division of property that has not been embodied. As such, the Plaintiff’s revocation lawsuit is accepted and the waiver agreement is revoked, and the right to claim division of property at the stage of adjudication or consultation is an abstract claim for division of property at the stage of not undergoing adjudication or consultation. As seen above, the above right does not in itself become final and conclusive, and it is impossible to enforce compulsory execution by itself, and the Plaintiff, a creditor, cannot be deemed as falling under Defendant U.S.’

(E) If so, the Plaintiff’s assertion on the premise that the right to claim a division of property abandoned by Defendant U20 belongs to Defendant U20’s responsible property is without merit.

(4) Whether the instant real estate is subject to division of property

(A) According to the above facts, the real estate listed in the attached list Nos. 3 through 5 of the defendant Kim 00 does not constitute the property division as the inherited property by the defendant Kim 00, and the real estate listed in the attached list Nos. 1 and 2 is the unique property acquired in the name of the defendant Kim 00, and there is no evidence to determine that the defendant Kim 00 has prevented the reduction of the property or has cooperated in the increase thereof, and therefore, it does not constitute the property division (Supreme Court Order 2002S36, Aug. 28, 2002).

(B) Therefore, even if Defendant Kim 00 did not harm the division of property of the instant real estate, which was not subject to division of property, in consultation with Defendant U.S. 00, it cannot be deemed as a fraudulent act.

B. Determination on the conjunctive claim

The plaintiff used the money acquired by the defendant U20 from the plaintiff as a cost of living and the cost of maintaining the chairperson of the school operation, so the defendant is an act of daily virtual agent and the defendant is not entitled to pay the above money to each plaintiff. However, there is no evidence to acknowledge the above assertion, and even if the above money was used as above, it cannot be viewed as an act of acquiring money by acquiring money by the defendant U20 as an agent for the defendant Kim 00, and therefore the above assertion by the plaintiff is not reasonable.

3. Conclusion

Therefore, all of the plaintiff's main and conjunctive claims against the defendant Kim 00 shall be dismissed. Since the judgment of the court of first instance is just in conclusion, the plaintiff's appeal against the defendant Kim 00 is dismissed as it is without merit, and the appeal against the defendant Kim 00 is dismissed as there is no benefit of the lawsuit, and it is so decided as per Disposition.

Full-time Officer (Presiding Judge)

Madics

b. Bac lines:

[List]

1. Daejeon Middle-gu;

reinforced concrete structure 120.66m and 53.2/930 of the ownership site right

2. The forests and fields outside the Cheongnam-gun District of Chungcheongnam-gun;

3. Mali-si, Mari-si, Chungcheongnam-nam;

4. Mali-si, Mari-si, Chungcheongnam-nam;

5. The end of the forest land in the Haak-gun of Chungcheongnam-nam.