(영문) 인천지방법원 2018.10.17 2018나57240

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(영문) 인천지방법원 2018.10.17 2018나57240

사해행위취소

Text

1. The part against the defendant in the judgment of the first instance is revoked.

2. The plaintiff's claim against the defendant is dismissed.

3...

Reasons

1. Basic facts B, on November 13, 2006, concluded the instant donation contract, which donates the instant real estate to the Defendant on March 4, 2015, while making a divorce agreement while making a marital life after completing a report of marriage with the Defendant on November 13, 2006, and that month following that:

5. The registration of ownership transfer was completed under the name of the defendant for the reason of the instant donation contract.

[Ground of recognition] Facts without dispute, Gap evidence 6, Eul evidence 4 and 9, and the purport of the whole pleadings

2. The parties' assertion

A. The gift contract of this case, which is the only property of the Plaintiff B, donated to the Defendant shall be revoked as a fraudulent act against the general creditors in B including the Plaintiff.

However, since the right to collateral security established on the real estate of this case was cancelled after the donation contract of this case, the part revocation of the donation contract of this case and the joint collateral value of the real estate of this case seek compensation equivalent to the amount of the plaintiff's claim

B. The Defendant’s donation contract of this case was received by division of property upon agreement with B, and this constitutes a proper division of property, and thus does not constitute a fraudulent act.

3. Determination

A. In light of the fact that the division of property following a divorce is a liquidation of common property formed through mutual cooperation between the parties during marriage, and the support nature to the other party is not shown in the system, the division of property following a divorce shall not be revoked as a fraudulent act, barring any special circumstance to deem that the division of property exceeds a reasonable level pursuant to the purport of Article 839-2(2) of the Civil Act, even if there is a result of the debtor’s transfer of a certain property to his/her spouse as a division of property, thereby reducing joint security against the general creditor.

However, it is not a legitimate division of property in excess of a considerable degree.

참조조문

-민법 제839조의2 제2항

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