2013 Ghana 35521 Revocation, etc. of Fraudulent Act

A person shall be appointed.

Defendant B

December 20, 2013

January 20, 2014

1. The instant lawsuit shall be dismissed.

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

As to the real estate listed in the separate sheet (hereinafter referred to as "real estate of this case") between the defendant and C

Cancellation of the sales contract concluded on August 6, 2013, and the defendant has revoked the sales contract,* the district court** branch court, etc.*

Receipt No. 13 of January 13, 2003** Cancellation, etc. of the provisional registration of the right to claim transfer of ownership by trade reservation completed under**

Procedures and receipt of August 21, 2013 by the same registry office**** Cancellation, etc. of transfer of ownership completed under *

each such procedure shall be implemented.

1. Basic facts

A. On May 17, 1994, the plaintiff is a joint issuer of D's representative director E, E, and C with a face value of KRW 60 million, the due date of payment, June 30, 1994, and a notary public with respect to one promissory note as Seoul Special Metropolitan City * Law Firm**********.

B. C on January 8, 2003, as to the real estate listed in the separate sheet (hereinafter referred to as the "real estate of this case") between the Defendant and the Defendant, due to trade reservation *** district court** on January 13, 2003, such as the branch court*** on January 13, 2003 ** on the right to claim ownership transfer registration.

C. Accordingly, on May 16, 2003, the plaintiff applied for provisional registration prohibition provisional disposition to the Seoul Western District Court on May 24, 2003, and received the above court***** *Kadan*********** on June 17, 2003, the plaintiff applied for the revocation of provisional registration ****** * * * * * * * * * * * the provisional registration of prohibition of provisional disposition * on June 23, 2003.

D. C received on August 21, 2013 by the same registry office to the Defendant***** A registration of ownership transfer based on a sales contract on August 6, 2013.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 5, and the purport of the whole pleadings

2. Judgment on the lawfulness of the lawsuit

The plaintiff asserts that C entered into a pre-sale and sales contract with the defendant and completed the registration of ownership transfer to the defendant with respect to the real estate of this case, which is the only property in excess of debt, constitutes a fraudulent act, and is seeking cancellation of the above pre-sale and sales contract and reinstatement.

According to Article 406 (2) of the Civil Code, a lawsuit for revocation of a fraudulent act is filed within one year from the date when the creditor becomes aware of the cause of revocation, and within five years from the date when the creditor becomes aware of the cause of revocation, "the date when the creditor becomes aware of the cause of revocation" means the date when the debtor becomes aware of the fact that the debtor had committed a fraudulent act while being aware that it would prejudice the creditor.

In addition, in case where a provisional registration has been completed for preserving a claim for transfer of ownership in the name of the beneficiary with respect to real estate owned by the debtor himself/herself, and the principal registration of transfer of ownership based on such provisional registration has been completed, unless the juristic act which is the cause for the provisional registration and the juristic act which is the cause for the principal registration is clearly different, the legal act which is the cause for the principal registration shall be held as the cause for the provisional registration, and the legal act which is the cause for the principal registration shall not be deemed as the object of revocation. Thus, regardless of when the date when the principal registration was completed, the limitation period for the revocation of the fraudulent act shall not be deemed to have run separately from the date when the principal registration was completed (see, e.g., Supreme Court Decisions 92Da11008, Jan. 26, 1993; 2004Da7079, Mar

In light of the above legal principles, in the case of this case, the Minister of Health and Welfare, C on January 13, 2003, when the right to claim ownership transfer on the real estate of this case was registered to the defendant on May 16, 2003, the plaintiff received a decision to prohibit provisional registration from taking a provisional disposition on May 16, 200, and the plaintiff again made a decision on June 6,

17. As seen earlier, the fact that the registration of provisional disposition was cancelled by filing an application for the cancellation of the provisional disposition against the prohibition of disposition is as seen earlier. In the event of this circumstance, it is reasonable to view that the Plaintiff, at the latest, knew that the reservation to trade between C and the Defendant constitutes a fraudulent act when the application date for the prohibition of disposition or the decision of provisional disposition against the prohibition of disposition was rendered. However, it is apparent in the record that the Plaintiff filed a lawsuit against the Defendant claiming the cancellation, etc. of the sales contract, which is the grounds for registration of the principal registration, which was based on provisional registration, and thus, the revocation of the provisional disposition against the Defendant, which was filed on September 5, 2013. Thus, the Plaintiff’s lawsuit against the revocation of the fraudulent act in

3. Conclusion

Therefore, the plaintiff's lawsuit of this case is unlawful and thus it is decided as per Disposition.

Judges Kim Jae-sung