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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. C is obligated to pay to the Plaintiff 151,00,000 won with 5% interest per annum from July 5, 2011 to January 12, 2015, and 20% interest per annum from the next day to the day of full payment.
However, on November 6, 2015, C sold real estate stated in the purport of the claim (hereinafter “instant real estate”) to the Defendant, a seller, and caused the lack of common creditors’ common security, including the Plaintiff, by selling real estate in excess of the debt amount, thereby resulting in the shortage of common creditors’ common security, and thus, the above sales contract constitutes a fraudulent act, and thus, seeks partial revocation and return of the value thereof.
2. The Defendant’s judgment on the defense of this case had limited the limitation period of one year from the date when the Plaintiff became aware of the cause for revocation, and asserted that the instant lawsuit was filed and unlawful. However, the burden of proof as to the limitation period lies in the other party to the obligee’s revocation lawsuit (see, e.g., Supreme Court Decisions 2007Da63102, Mar. 26, 2009; 2009Da47852, Oct. 29, 2009); and (b) the evidence submitted by the Defendant including the written evidence Nos. 4-1 and 4-2, and there is no other evidence to acknowledge it. Therefore, the aforementioned defense is without merit.
3. Determination on the merits
A. Where a right to collateral security has been established to secure a third party's obligation on the real estate transferred by the debtor, the amount of the secured debt actually borne by the general creditors within the limit of the maximum debt amount shall be the remaining portion of the real estate price.
Therefore, if the amount of secured debt and the maximum debt amount of the right to collateral security exceed the price of the real estate, the transfer of real estate does not constitute a fraudulent act, since there is no property that is the joint collateral of the general creditors (see, e.g., Supreme Court Decisions 97Da10864, Sept. 9, 1997; 2000Da42618, Oct. 9, 2001).
As such, the Plaintiff is a creditor against C, and C on November 6, 2015.