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(영문) 대전지방법원천안지원 2020.07.08 2019가단121779
사해행위취소
Text

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. On September 17, 2017, the Plaintiff loaned D a loan of KRW 60,80,000 to D at the interest rate of KRW 4.5% per annum. D, due to the delinquency in payment of interest on the loan, lost the benefit of time under a credit transaction agreement, and as of December 18, 2019, there remain obligations equivalent to the Plaintiff’s principal amounting to KRW 71,240,196, interest rate of KRW 973,613, compensation for delay, KRW 29,061.

B. On July 17, 2018, the Defendant, as D’s child, entered into a donation contract with D on the real estate indicated in the separate sheet (hereinafter “instant real estate”) (hereinafter “instant donation contract”) and completed the registration of ownership transfer on July 23, 2018.

[Ground of recognition] Facts without dispute, Gap 1-1, 2, Gap 3-1 to Gap 5, the purport of the whole pleadings

2. Determination on the cause of the claim

A. The gist of the plaintiff's assertion 1) since the plaintiff's assertion D donated the real estate of this case to the defendant who is a child under excess of his/her obligation, the contract of this case should be revoked as a fraudulent act detrimental to creditors of D including the plaintiff, and the defendant is obligated to implement the procedure for cancellation of ownership transfer registration due to the above donation to the original state. 2) Since the defendant's claim D's obligation to the plaintiff of this case is natural obligation due to bankruptcy procedure exemption, the cancellation of the plaintiff's fraudulent act based on the above obligation cannot be permitted

B. The obligee’s right of revocation is a system to preserve the obligor’s responsible property and should be premised on the fact that the obligor can exercise the obligee’s right of revocation against the obligor. Thus, when the obligor is granted a decision to grant immunity in the bankruptcy procedure, exercising the obligee’s right of revocation with the obligee’s bankruptcy claim as the preserved claim is not allowed unless the obligor’s claim does not constitute an exception under the proviso to Article 566 of the Debtor Rehabilitation Act (see Supreme Court Decision 2008Da25978, Jun. 26, 2008). In full view of each of the arguments set forth in Section B-1 through Section B-4, D is not permitted unless the obligor’s claim does not constitute a ground for exception under the proviso to Article

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