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(영문) 인천지방법원 2016.07.08 2015가합50084
약정금
Text

1. Of the instant lawsuit, the part concerning the claim for the cancellation of the sales contract made on April 18, 2014 shall be dismissed.

2. Defendant A shall be the Plaintiff 160,000.

Reasons

1. In the case of the instant lawsuit, the part of the claim for revocation of the fraudulent act and restitution to the original state among the instant lawsuit filed after the lapse of one year from December 9, 2013, on which the Plaintiff was aware that the part of the claim for revocation of the fraudulent act and restitution to the original state was fraudulent, and thus unlawful, the defense prior to the merits to the effect that it is unlawful. Unless the legal act, which is the cause of provisional registration, and the legal act, which is the cause of the principal registration, are not clearly different, the initial date of the claim for the revocation of the fraudulent act, such as provisional registration and the revocation of the principal registration, is the time when the initial date of the claim becomes aware that the act of provisional registration was the cause of the fraudulent act.

(See Supreme Court Decision 2004Da24960 Decided December 21, 2006, etc.). Meanwhile, a creditor’s revocation lawsuit shall be filed within one year from the date on which the creditor becomes aware of the cause of revocation (Article 406(2) of the Civil Act). In order to recognize the cause of revocation as being known, the mere fact that there was a debtor’s juristic act was not sufficient to recognize that the juristic act was prejudicial to the creditor, and that the juristic act was prejudicial to the creditor. In other words, it should be known that the juristic act would not be able to fully satisfy the claim due to the shortage of joint security of the claim or the lack of joint security already in the short condition.

(See Supreme Court Decision 9Da53704 Decided February 25, 200, etc.). According to the purport of the evidence Nos. 2 and 5 (including paper numbers), and witness B’s testimony and pleading as a whole, ① a pre-sale agreement (hereinafter “instant pre-sale agreement”) was concluded between Defendant A and Defendant C on November 7, 2013 with respect to each real estate listed in the separate sheet (hereinafter “each real estate of this case”) on the same day, and the provisional registration of the right to claim transfer of ownership was made in the name of Defendant Songsan Construction on the same day, ② the Plaintiff on November 2013.

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