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(영문) 창원지방법원 2015.08.12 2014가단23020
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 December 3, 2012, A borrowed KRW 60,000,00 to the Plaintiff on December 6, 2014 as the maturity date for repayment. On December 6, 2013, A drafted a notarial deed of a monetary loan agreement on security transfer for transfer (No. 506, No. 2013, No. 2013, No. 2013, Dec. 6, 2013) that the ownership of the instant machinery is transferred to the Plaintiff by means of an occupancy or amendment.

B. On July 9, 2013, prior to the preparation of the said notarial deed, A entered into a facility lease agreement with a non-Esp Capital Co., Ltd. (hereinafter “non-Esp Capital”) on the instant machinery, which is one’s own possession, with the acquisition cost of KRW 150,000,000, the lease period of KRW 36 months from the issuance date of the receipt of the leased object, the lease deposit amount of KRW 45,00,00, and the lease fee of KRW 3,476,401, monthly.

C. Meanwhile, on February 6, 2014, the Defendant concluded a sales contract of KRW 100 million for the instant machinery (hereinafter “instant sales contract”) with A.

[Ground of recognition] The non-contentious facts, Gap evidence Nos. 1 through 3, and the fact-finding results on the non-Es Capital of this court, the purport of the whole pleadings

2. Determination as to the cause of action

A. The Plaintiff’s assertion A bears the obligation of the above loan, etc. against the Plaintiff, and concluded the instant sales contract in collusion with the Defendant, notwithstanding the fact that the instant machinery was prepared on December 6, 2013 by means of a notarial deed for a loan for consumption and loan agreement with the transfer security.

Therefore, the sales contract of this case based on false conspiracy should be revoked as a fraudulent act.

B. At the time of the instant sales contract for the Defendant’s assertion, A was using the instant machinery from the non-Es Capital with the facility leasing, and the instant machinery was owned by the non-Es Capital, and thus, it does not constitute A’s responsible property.

Therefore, it does not constitute a fraudulent act.

(c) Determination 1 is known to the effect that the obligor would prejudice the obligee.

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