(영문) 서울중앙지방법원 2016.04.27 2014가단5251931

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(영문) 서울중앙지방법원 2016.04.27 2014가단5251931

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 May 10, 2006, the Plaintiff offered credit loans of KRW 140,00,000 to B. Since October 11, 2013, B began to delay the payment of interest on loans from October 11, 2013, and on loss of the benefit of time, the Plaintiff was liable for the principal of the loan of KRW 75,273,387 as of August 25, 2014 as of August 25, 2014.

B. B on September 13, 2013, the real estate listed in the separate sheet (hereinafter “instant apartment”) was sold to the Defendant, and completed the registration of ownership transfer on the same day.

C. On February 26, 2009, the instant apartment was completed the registration of creation of a neighboring mortgage with the debtor B, the maximum debt amount of KRW 120,000,000 (amended to KRW 28,800,000 on May 20, 2013) and the mortgagee’s bank. However, on December 13, 2013, the registration was cancelled on December 13, 2013.

[Ground of recognition] Unsatisfy, Gap evidence 1-5, Gap evidence 2, the purport of whole pleadings

2. The Plaintiff’s assertion B bears the Plaintiff’s obligation to the instant loan, and sells the instant apartment complex, the only property of which is one of the Defendant in excess of the obligation, constitutes a fraudulent act.

On the other hand, since the Defendant cancelled the registration of collateral security established on the apartment of this case after concluding a sales contract with the Plaintiff on the apartment of this case, the cancellation of the sales contract should be made within the limit of 104,457,860 won of the Plaintiff’s preserved bond amount, and the Defendant is obliged to pay the Plaintiff the above KRW 104,457,860 and the damages for delay.

3. If a security right has been established on the subject matter transferred by the debtor, only the remaining part of the subject matter which remains after deducting the amount of the secured claim from the amount of the subject matter, and if the amount of the secured claim exceeds the price of the subject matter, the transfer of such subject matter shall not be deemed a fraudulent act;

Supreme Court Decision 97Da10864 Delivered on September 9, 1997

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