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(영문) 대법원 2018.11.29 2018다261568
사해행위취소
Text

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

Reasons

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

1. As to the ground of appeal No. 1, a claim protected by the obligee’s right of revocation should, in principle, be arising before an obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, there is a high probability that the legal relationship, which has already been based on which the claim was established at the time of the juristic act, has already been established, and that the claim would have been created in the near future, and where a claim was created due to the realization of the probability in the near future, the claim

(2) The lower court determined that the Plaintiff’s claim for indemnity against C can be a preserved claim for the obligee’s right of revocation, taking account of the following: (a) the Plaintiff’s claim for indemnity against C was not created at the time of the instant collateral security agreement; (b) the instant guarantee agreement was already concluded, which is the legal basis thereof, prior to the occurrence of the instant collateral security agreement; and (c) the Plaintiff’s claim for indemnity may have a high probability of incurring the Plaintiff’s claim for indemnity in the near future in light of the fact that the instant collateral security agreement was actually established after about four months after the occurrence of the instant collateral security agreement.

In light of the above legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles as to preserved claims.

2. The act of an obligor in excess of his/her obligation on the second ground of appeal providing real estate owned by him/her to any one of the creditors as a claim security is a fraudulent act in relation to other creditors, except in extenuating circumstances.

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