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(영문) 대법원 2016.04.28 2015다207648
사해행위취소
Text

All appeals are dismissed.

The costs of appeal between the Plaintiff and Defendant G are assessed against the Plaintiff.

Reasons

The grounds of appeal are examined.

1. As to the Plaintiff’s grounds of appeal, the Plaintiff’s ground of appeal is ultimately purporting to dispute the fact-finding of the lower court regarding the amount of credit lent the instant 2 real estate to the National Bank as collateral at the time when the instant mortgage contract was concluded between the Plaintiff and the Defendant G.

However, the recognition of facts and the preparation and evaluation of evidence which form the basis thereof are within the discretionary power of the fact-finding court unless they exceed the limit of the free evaluation of evidence.

Even if examining records, it is difficult to view that the lower court exceeded the scope of reasonable free evaluation in violation of logical and empirical rules, without exhausting all necessary deliberations regarding the fact-finding of the lower court.

In addition, there is no error of misapprehending the legal principles on the duty of explanation in the judgment below.

2. (1) With respect to Defendant E’s grounds of appeal on the existence of the preserved claim, a claim that may be protected by the obligee’s right of revocation should, in principle, be arising before the 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 is the basis of the establishment of the claim, has already been established at the time of the juristic act, and that the claim would have been created based on the legal relationship in the near future, and in the near future, where a claim has been created due to the realization

(See Supreme Court Decision 2010Da64792 Decided January 12, 2012). The lower court did not actually generate the Plaintiff’s claim for reimbursement against B at the time Defendant E entered into a mortgage agreement with regard to the instant real estate.

Even if there has already been a legal relationship that forms the basis of the claim for indemnity, and it is highly probable that the plaintiff's claim for indemnity should be established in the near future.

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