The nature of the exercise period of creditor's right of revocation under Article 406(2) of the Civil Code

The exercise period of the creditor's right of revocation under Article 406 (2) of the Civil Code is an exclusion period in which the court should recognize ex officio the extinguishment of the right due to the expiration of the period.

Kim head of the Gu, Kim Jong-soo, Counsel for defendant-appellant

No. 50

Daegu High Court Decision 73Na710 delivered on September 18, 1974

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

Judgment on the ground of appeal No. 1 by the Plaintiff’s Attorney

According to Article 406 (Right of Revocation) of the Civil Act, when an obligor has done a juristic act for the purpose of property right with knowledge that it would prejudice the obligee, the obligee may exercise the right by filing a lawsuit with the court within one year (five years from the date of the legal act) after becoming aware of the cause of revocation of the claim for revocation. The period mentioned above shall be interpreted as the so-called limitation period that it is reasonable for the court to recognize ex officio the extinction of the right upon the lapse of such period, and it shall be reasonable to regard the above legal provision as the legislative background (in particular, whether the phrase "extinctive prescription" has been partially

Therefore, even though the defendant did not assert that he would benefit from the extinguishment of right due to the expiration of the period, the court below's decision was justified in examining and determining whether or not the exercise period of the creditor's right to revoke ex officio. Therefore, there is no reason to discuss this issue, and since the fraudulent act which is the object of revocation in the creditor's right to revoke is an act of claim or an act of real right, the court below's decision that the fraudulent act was committed at the time when the promise to sell and purchase was made between the non-party Park Jong-won and the defendant and the provisional registration was made for preserving the right to claim the transfer of right was just and there is no misapprehension of legal principles. Furthermore, the final judgment cannot be denied the validity of the registration even if it was made by a judgment of winning the wrong service, such as the theory of lawsuit, unless there are any special circumstances.

Determination on the same second ground;

According to the reasoning of the judgment by the court below, in order to secure the repayment of the amount borrowed from the defendant several times at the time, the court below recognized the fact that the non-party and the defendant have passed through the principal registration of transfer of ownership due to the circumstances such as the original time when the defendant did not repay the principal and interest of the loan, and determined that the transaction between the non-party and the defendant has no evidence to conclude that the transaction between the non-party and the defendant is a false declaration of conspiracy. In light of the records, the court below did not find any errors in the rules of evidence in light of the court below's fact-finding in light of the records, and there is no error of law against the rules of evidence selection and value determination. The arguments are merely to criticize the fact-finding based on

Therefore, this appeal is dismissed and the costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Young-young (Presiding Justice)