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(영문) 서울동부지방법원 2014.04.17 2013가합12431
사해행위취소
Text

1. All of the plaintiff's claims are dismissed.

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

Reasons

1. Basic facts

A. On June 19, 2009, the Plaintiff issued a promissory note of KRW 450,000 at par value from Nonparty C, D, and E (the due date of July 10, 2009) and was issued with a notarial deed as to the said note issued by Nonparty C, D, and E on the same day.

B. On February 4, 2010, C, which is in excess of its obligation, sold real estate listed in the separate sheet (hereinafter “instant apartment”) as the only real estate owned by it to the Defendant at KRW 295,000,000 (hereinafter “instant sales contract”) and completed the registration of ownership transfer to the Defendant on April 21, 2010 as Seoul East East District Court Gangwon-dong District Court’s Gangwon Branch Office received on April 21, 2010.

C. At the time of the instant sales contract, the instant apartment was established with the right to collateral security worth F, the debtor C, the maximum debt amount of KRW 25,00,000,000 on the instant apartment, which was revoked on February 10, 2010, which was subsequent to the instant sales contract.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 11, Eul evidence 3, the purport of the whole pleadings

2. Determination

A. According to the above facts, the Plaintiff’s right to revoke the fraudulent act was established (1). At the time of the conclusion of the instant sales contract, the Plaintiff had a claim against C for the above amount of the bill, which can be the preserved claim for the revocation of the fraudulent act.

(2) The debtor's act of selling real estate, which is the only property of the debtor, and changing it into money which is easily consumed, always constitutes a fraudulent act against the creditor, barring special circumstances. Thus, the debtor's intent of deception is presumed and the burden of proving that there was no purchaser in bad faith is presumed to exist in the beneficiary (see, e.g., Supreme Court Decision 97Da54420, Apr. 14, 1998). Thus, the sales contract of this case where C in excess of the debt sold the apartment of this case, which is one of its own real estate, to the defendant

B. As to the defendant's good faith defense, (1) recognized.

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