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(영문) 대법원 2019.10.31 2019다224757
배당이의
Text

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

Reasons

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

For the reasons indicated in its holding, the lower court determined that the instant mortgage agreement ought to be revoked as a fraudulent act and that the instant distribution schedule should be revised as its original status, on the grounds that: (a) deeming the claim succeeded in accordance with the purport of the judgment in the Daegu District Court Decision 2015Gahap537 Claim for Subrogation, which the Plaintiff filed against C, as the preserved claim of the instant obligee; and (b) setting up and establishing a collateral on the instant real estate to the Defendant under excess of the obligation by C constitutes a fraudulent act as it causes the shortage of common security against other general creditors; and (c) there is no evidence to recognize the Defendant’s good faith as a beneficiary; and (d) the instant mortgage agreement ought to

Examining the reasoning of the lower judgment in light of the relevant legal principles and the records, the lower court’s conclusion, which accepted the Plaintiff’s claim seeking revocation of the entire collateral agreement of this case and the rectification of the distribution schedule pursuant thereto in this case, which exceeds the amount of the Plaintiff’s claim for provisional attachment as well as the amount of the secured debt of this case, is acceptable. In so doing, it did not err by failing to exhaust all necessary deliberations, exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, as otherwise alleged in the grounds of appeal.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

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