Whether a lawsuit seeking revocation of speculative acts against non-existent objects is legitimate

At the time of filing a lawsuit, the prohibition of disposal of the object of a fraudulent act was imposed, but some of them were disposed of by the State in accordance with the National Tax Collection Act, and as the lawsuit on the above provisional disposition was revoked in the appellate court and its execution became final and conclusive, the object is ultimately deemed not to exist in the lawsuit, and the lawsuit on the revocation of a fraudulent act against it should be dismissed in an unlawful manner.

Article 406 of the Civil Act

Busan Heavy Industries Corporation

Dong-registered Steel Co., Ltd

Busan District Court (72 Gohap434)

The original judgment shall be revoked.

The plaintiff's lawsuit is dismissed.

All the costs of lawsuit shall be borne by the plaintiff through the first and second trials.

On July 10, 1971 between the defendant and the non-party Kim Hong, the sales contract for the movables in the attached list shall be revoked.

The defendant delivered the above movables to the Kim Jong-soo.

The judgment that the costs of lawsuit shall be borne by the defendant and the declaration of provisional execution were sought.

The plaintiff, among the judgment of the court of first instance, has revoked the part of the judgment against the plaintiff and sought a judgment identical to the entries in the purport of the claim, and the defendant shall revoke the part against the defendant.

The plaintiff's claim is dismissed.

The court costs are assessed against the plaintiff in both the first and second instances.

First, in this case, since there is no dispute over whether the goods listed in the annexed Table 1, which the plaintiff claimed as the object of fraudulent act, are still existing in a health stand, and there is no dispute over the establishment of Gap evidence Nos. 1, 8,9,11, Eul evidence Nos. 10-2, the authenticity of which is presumed to have been established, and all the materials recorded in the records of this case are recorded in the testimony of the party concerned with the testimony of the party concerned, the court below's Busan District Court Decision No. 72Ka1721, as well as the court below's Busan District Court Decision No. 72Ka1721, which decided on the object of fraudulent act, was subject to provisional disposition of prohibition of disposal, but the foreign country seized the goods listed in the annexed Table No. 2 by the execution of tax credit against the defendant under the National Tax Collection Act, and the remaining goods are disposed of in another part after the execution of provisional disposition became cancelled, and there is no evidence contrary to the above recognition.

Thus, the plaintiff cannot claim priority by a provisional disposition against the disposition of public auction conducted by the country, unless there are special circumstances, so the goods already sold are not existing, and as long as the goods secured by a provisional disposition in the court below are determined to be revoked by the appellate court and disposed of to the other party, the objects do not exist in the lawsuit.

Accordingly, it is reasonable to dismiss the plaintiff's claim of this case as an illegal claim against a non-existent article, which does not exist at present. The original judgment with different purport is unfair, and the defendant's appeal against this is reasonable, and therefore, the original judgment is revoked in accordance with Article 386 of the Civil Procedure Act, and it is so decided as per Disposition in accordance with Articles 89 and 96 of the same Act with respect to the bearing of litigation costs.

[Attachment List]

Judges Seo-sok (Presiding Judge) Hun-Gaon Park Jae-joon