(영문) 창원지방법원 2016.06.30 2015가단25344

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(영문) 창원지방법원 2016.06.30 2015가단25344

사해행위취소

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1. The instant lawsuit shall be dismissed.

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

Reasons

1. The Plaintiff asserted that the Plaintiff lent KRW 170 million to Nonparty D from March 2, 2009 to November 19, 2009.

At the time of lease, the network D agreed to set up a collateral on the real estate stated in the purport of the claim in the name of Nonparty C (hereinafter “instant building”), one’s own wife, as collateral for the above loan.

However, prior to the registration of the establishment of the right to collateral security under the above agreement, C first set up the right to collateral security, such as the written claim.

Since this is a fraudulent act, the establishment registration of the neighboring mortgage between the defendant and C should be cancelled.

2. We examine ex officio the legality of the instant lawsuit on the determination of the legality of the instant lawsuit.

In exercising the creditor's right of revocation, the revocation of the fraudulent act and the restoration to its original state shall be claimed to the court, and in such cases, the revocation shall not be requested to the original state, and the revocation shall be filed

(see, e.g., Supreme Court Decisions 80Da795, Jul. 22, 1980; 204Da17535, Jun. 9, 2005). In addition, revocation of fraudulent act can only be claimed by means of filing a lawsuit with the court, and cannot be asserted by means of an attack and defense in a lawsuit.

(See Supreme Court Decision 95Da48599, 48605 delivered on March 13, 1998, etc.). The Plaintiff sought against the Defendant the cancellation of the registration of the establishment of a neighboring mortgage on the instant building on the ground of the revocation of the fraudulent act, and the revocation of the fraudulent act is apparent in the record that the Plaintiff sought only the return of the original state corresponding to the restoration to original state without filing a lawsuit against the Defendant, and thus, the Plaintiff’s claim for restitution based on the revocation of the

3. In conclusion, the lawsuit of this case is unlawful and dismissed, and it is so decided as per Disposition.

참조판례

-대법원 1980. 7. 22. 선고 80다795 판결

-대법원 1998. 3. 13. 선고 95다48599, 48605 판결

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