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(영문) 대법원 2017.11.29 2017다241819
사해행위취소
Text

The judgment below is reversed, and the case is remanded to the Daegu High Court.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on the scope of the preserved claim

A. In principle, it is required that a claim protected by the obligee’s right of revocation was created prior to the commission of an act that can be viewed as a fraudulent act. However, there is a high probability that at the time of the fraudulent act, there is a legal relationship which is the basis of the establishment of the claim, and that the claim is established in the near future in the near future, and in a case where a claim has been created by realizing the probability in the near future, the claim may also be the preserved claim of the obligee’s right

(Supreme Court Decision 2004Da40955 Decided November 12, 2004, and Supreme Court Decision 2015Da53841 Decided September 21, 2017, etc.) B.

The reasoning of the first instance judgment cited by the lower court and the record reveals the following: (a) from the time of establishment of the Plaintiff Company B (hereinafter “B”), the Plaintiff continuously traded the goods sold to B, and continuously traded them; (b) on November 3, 2014, the Plaintiff’s claim for the payment of the goods against B was KRW 161,697,046, which was at the time of the instant sales contract; (c) increased to KRW 162,627,28,00 on November 20, 2014; and (d) paid KRW 100 million on November 25, 2014, the claim for the payment of the goods was KRW 62,627,288; and (e) thereafter, the amount of the goods sold to the Plaintiff around February 12, 2015, which was KRW 134,361,618, and the amount of goods sold to the Plaintiff after November 25, 2014.

C. As to such factual relations, the lower court had already existed the legal relationship that forms the basis for the establishment of claims at the time of the instant sales contract, which was the fraudulent act, and thus, near future claims based thereon.

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