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(영문) 창원지방법원마산지원 2013.06.05 2012가단15254
사해행위취소
Text

1. The plaintiff's claim is dismissed.

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

Reasons

1. The gist of the Plaintiff’s assertion was between C and the legally married couple who completed the marriage report on January 17, 1983, and C had completed the registration of ownership transfer with respect to the real estate listed in the separate sheet prepared by the Plaintiff during the marriage period (hereinafter the instant real estate). However, C concluded a sales contract with the Defendant on December 11, 2012, immediately after the judgment on divorce with the Plaintiff was rendered, and completed the registration of ownership transfer with respect to the instant real estate under the name of the Defendant as stated in the purport of the claim. Such legal act by C aims to prevent the Plaintiff from executing the right to claim property division against the Defendant, and constitutes a fraudulent act (Article 406 of the Civil Act).

Therefore, the Plaintiff seeks to cancel the registration of transfer of ownership in the name of the Defendant with respect to the instant real estate as the revocation of the said fraudulent act and its restitution.

2. We examine the judgment, and Article 406(1) of the Civil Act provides that "if an obligor has knowingly performed a juristic act for the purpose of property right, with the knowledge that it would prejudice the obligee, the obligee may claim the cancellation and restitution to the original state to the court." Thus, in order for the Plaintiff to claim the revocation of fraudulent act against the Defendant, the Plaintiff should be presumed to have the preserved right, such as consolation money or the claim for division of property, against C. However, there is no evidence to acknowledge that the Plaintiff has such preserved right.

Therefore, the plaintiff's claim of this case is without merit to examine the remainder.

3. The plaintiff's claim is dismissed. It is so decided as per Disposition.

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