(영문) 서울중앙지방법원 2017.11.29 2016가합554759

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(영문) 서울중앙지방법원 2017.11.29 2016가합554759

사해행위취소

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1. The plaintiff's claim is dismissed.

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

Reasons

1. The Plaintiff’s assertion by the parties asserts that the delivery of KRW 400 million to the Defendant, who is the wife, under excess of the obligation of the obligor B, constitutes a fraudulent act against the Plaintiff, who is the obligee B, as a gift contract, and sought the revocation of the fraudulent act and its restitution.

In this regard, the defendant asserted that since the plaintiff's right to preferential payment against B has been secured, the delivery of the check against the defendant B does not constitute a fraudulent act.

2. Determination

A. If a creditor has a right to transfer a security for shares owned by the debtor in the future, and if the value of the shares has secured preferential payment right to the creditor against the total amount of the debt in excess of the amount of the debt concerned, the debtor's act of disposal of the property is not detrimental to the creditor,

B. In light of the above legal principles, the following facts are recognized in light of each of the statements in the Health Team, Nos. 6, 7 (including paper numbers).

① On September 15, 2017, the Plaintiff and B concluded a transfer security agreement with the effect that the Plaintiff’s claim amount against B was KRW 350 million and that was due on September 20, 2018, and that the Plaintiff and B transferred 41,684 shares of C Co., Ltd. (hereinafter “C shares”) owned by B and 6318 shares of D Issuance (hereinafter “D shares”) to the Plaintiff by means of possession revision for the purpose of securing the performance of the said obligation. In the event of failure to perform the said obligation, the Plaintiff and B drafted a notarial deed containing the purport of recognizing compulsory execution.

② As of December 31, 2016, the assessment value per share of C shares is 8,896 won, and the assessment value per share of D shares is 97,347. The security value of the shares acquired by the Plaintiff as security for transfer is 985,859,210 won (=41,684 shares x 8,896 won x 6,318 shares x 97 won).

C. If so, the plaintiff is provided with shares as security for transfer from B as above.

유사 판례

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