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(영문) 서울고등법원 2017.02.24 2016나8017
사해행위취소
Text

1. The plaintiff, among the parts concerning the principal lawsuit of the first instance judgment, falls under the following amount ordered to be paid.

Reasons

1. The following facts in the summary of the case are found either to be in dispute between the parties or to be acknowledged by comprehensively considering the overall purport of the arguments in Gap evidence Nos. 5, 6, 10, 15 (including, if any, the number is included), Eul evidence Nos. 1, 15, and 16:

A. Defendant B is the representative of “D” as an industrial facility construction business entity, such as an incineration boiler, and Defendant C is the husband of Defendant B and the actual operator of the said business.

B. On September 1, 2009, between the Plaintiff and the Plaintiff, the Defendants entered into a contract for construction (hereinafter “instant contract”) of manufacturing and installing RPF (RF) incineration boiler (using waste vinyl as fuel; hereinafter “instant incineration boiler”) within the Plaintiff’s factory on November 30, 2009, and 440,000,000 won (including value-added tax) (hereinafter “instant contract”).

C. From September 1, 2009 to January 22, 2010, the Plaintiff paid to Defendant B a total of KRW 325,000,000 as the construction price under the instant contract.

The Plaintiff applied for permission to install the instant incineration boiler in Gyeonggi-do around March 2010, but received notification of no permission to install the instant incineration boiler around April 16, 2010.

E. Accordingly, the Plaintiff filed an administrative litigation (Seoul District Court 2010Guhap6732) against the Governor of the Gyeonggi-do to revoke the revocation of the permission for installation of air discharge facilities, but lost on October 13, 2010, and the said judgment was finalized through an appeal (Seoul High Court 2010Nu38990 decided July 15, 201) and an appeal (Supreme Court 201Du20253 Decided December 8, 201).

2. Summary of the cause of the claim;

A. Although the Defendants were liable for the installation of the instant incineration boiler under the instant contract, they failed to comply therewith, the Plaintiff rescinded the instant contract and sought the return of KRW 325,000,000 for the said payment to its original state.

B. As the counterclaim Defendant B fulfilled all of the instant contract, the remainder under the instant contract to the Plaintiff.

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