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Reasons
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(영문) 부산고등법원 2016.03.30 2015나939
사해행위취소
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1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. The reasoning for this Court’s explanation concerning this part of the underlying facts is as stated in the reasoning of the judgment of the first instance, except where “this Court” is referred to as “court of the first instance” in Part 4, 19 of the judgment of the first instance. Therefore, this Court shall accept it in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. The parties' assertion

A. In Busan District Court case No. 2012Gau40561, the Plaintiff filed a claim for reimbursement with a clear statement that part of the claim was filed against B. The Plaintiff continued to pay the Plaintiff F medical expenses, etc. incurred from the instant traffic accident, and the Plaintiff sold the instant real estate, which is the only property owned by the Plaintiff, to the Defendant with knowledge that the claim for reimbursement still exists.

Since this is a fraudulent act, the sales contract of this case should be revoked within the scope of the plaintiff's preserved claim, and the defendant is obligated to pay KRW 109,844,496 to the plaintiff for restitution accordingly.

B. Defendant B did not control the operation of the instant Otoba at the time of the accident, and thus, Defendant B does not bear any liability for damages against F (Death on July 8, 2013) as the victim or his bereaved family members.

Therefore, the Plaintiff, the insurer, cannot claim against F et al. the insurance money paid to F et al. by acting in subrogation of the damage claim against F et al. for the damage claim against F et al.

3. Determination as to the existence of a preserved right

A. Article 3 of the Guarantee of Automobile Accident Compensation Act provides that "a person who operates an automobile for his own sake" refers to a person who can be deemed to be in the position of a responsible subject to the control of the operation of the automobile in question and the benefit of the operation. In this case, the control of the operation is not limited to the practical control, but to the indirect control or control.

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