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(영문) 서울남부지방법원 2019.10.18 2018가합114885
사해행위취소
Text

1. As to each real estate listed in the separate sheet Nos. 1 through 4, Defendant A and C Co., Ltd. on June 27, 2018.

Reasons

1. Basic facts

A. On July 22, 2011, the Plaintiff entered into a credit guarantee agreement with C Co., Ltd. (hereinafter “C”) and issued a credit guarantee agreement to C, and the representative director D of C jointly and severally guaranteed the liability for indemnity against the Plaintiff in accordance with the credit guarantee agreement.

C was granted a loan of KRW 1,500,000,000 from the E Bank as collateral for the credit guarantee certificate issued by the Plaintiff on the same day.

Since then, the above credit guarantee agreement and loan contract have been extended several times.

B. C was in arrears on July 13, 2018, the loan term of which expires without extension of the loan period.

On October 23, 2018, the Plaintiff repaid KRW 1,289,787,904 to E Bank in accordance with the credit guarantee agreement.

C. Meanwhile, on June 27, 2018, C entered into a mortgage agreement with Defendant A Co., Ltd. (hereinafter “A”) on each real estate listed in the attached list Nos. 1 through 4, which he/she owned (hereinafter “instant mortgage agreement”) and completed the registration of establishment of a neighboring mortgage as stated in the attached list No. 1.

On June 27, 2018, D, the representative director of C, sold the real estate listed in the attached Table No. 5 to Defendant B, and completed the registration of ownership transfer listed in the attached Table No. 2.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 11 (if there are additional numbers, including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Claim against the defendant A;

A. The Plaintiff asserted that the instant mortgage contract concluded between C and the Defendant constituted a fraudulent act, and accordingly, sought the revocation of the instant mortgage contract and the subsequent restoration of the original state to the original state.

B. In principle, it is required that the claim protected by the obligee’s right of revocation has arisen prior to the commission of an act that can be viewed as a fraudulent act. However, there is a legal relationship that has already been based on the establishment of the claim at the time of such fraudulent act.

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