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(영문) 대법원 2017.08.24 2016다277828
사해행위취소
Text

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

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, the "date when the creditor becomes aware of the ground for revocation" means the date when the creditor becomes aware of the requirements for the creditor's right of revocation, that is, the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act with the knowledge that he/she would prejudice the creditor. Thus, it is not sufficient that the debtor merely knew of the fact that he/she conducted a disposal act of the property, and it is necessary to inform the debtor of the fact that the legal act was not sufficient to fully satisfy the claims due to the deficiency in joint security of claims or lack of joint security in the situation where the creditor would harm the creditor, and further, it is necessary to inform the debtor of the fact that the debtor had known of the intention to harm the creditor, on the ground that he/she was aware of the objective fact of the fraudulent act, and the burden of proof as to the expiration of the exclusion period exists

(1) In light of the legal principles as seen earlier, the lower court’s rejection of the Defendant’s defense that the instant lawsuit seeking revocation of a fraudulent act was filed after the lapse of the limitation period of one year under Article 406(2) of the Civil Act, based on the reasons indicated in its reasoning, is justifiable. In so doing, it did not err by misapprehending the legal principles as to the starting point of the limitation period of a lawsuit seeking revocation of a fraudulent act without failing to exhaust all necessary deliberations, as otherwise alleged in the grounds of appeal.

2. As to the ground of appeal No. 2, the lower court, on the grounds indicated in its reasoning, held that the Plaintiff owned the instant promissory note claim against C (hereinafter “C”) upon receiving endorsement and transfer of the instant promissory note from E, and thus, the Plaintiff’s preserved claim.

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