(영문) 서울중앙지방법원 2021.03.11 2018가단5209228

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(영문) 서울중앙지방법원 2021.03.11 2018가단5209228

사해행위취소

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1. The plaintiff's claim is dismissed.

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

Reasons

1. Basic facts

A. On July 7, 2015, the Plaintiff lent KRW 600 million to D.

B. As to the real estate listed in the separate sheet (hereinafter “instant real estate”) owned by C, the ownership entered in the claim filed by the Defendant on August 16, 2018 was changed due to the purchase and sale of the real estate in the name of C.

[Ground for recognition] Unsatisfy, Gap evidence No. 1, the purport of the whole pleadings

2. The instant real estate, which is the cause of the claim, is owned by D in the name of B under the name trust agreement between B and B in the future, so the instant real estate is still owned by D, a truster, and is still liable for the joint collateral of its general creditors, depending on invalidity of the nominal trust agreement.

In this regard, D, in agreement with C, the trustee, in order to avoid the creditor's debt collection of the real estate of this case in excess of the debt, concluded a sales contract with C and sold the real estate to the defendant in the name of C, which constitutes an act of deception.

Accordingly, the plaintiff, as a creditor of D, sought the cancellation and restitution of such a fraudulent act against the defendant.

3. In the case of the so-called bilateral trust in which the owner of real estate transfers the title of registration to the trustee after the enforcement of the Act on the Registration under the name of the person having the actual right to the real estate sold, the registration of transfer of ownership in the name of the trustee, which was made under the name of the trust agreement, shall be cancelled in the form of the cause thereof, and real estate is still owned by the truster

Therefore, if a truster, who is a debtor, directly concludes a sales contract with a third party in his/her name or in the name of the trustee with respect to the trust property, which is a property held by the general creditors' joint collateral, becomes a substantial party to the trust, the truster's small property is caused by this act.

유사 판례

-대법원 2012. 10. 25. 선고 2011다107382 판결

-대법원 2012.10.25.선고 2011다107375 판결

-대법원 2013. 9. 12. 선고 2011다89903 판결

-창원지방법원 2020.04.23 2019나55962

-대법원 2016. 7. 29. 선고 2015다56086 판결