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(영문) 서울고등법원 2017.10.18 2016나2085218
사해행위취소
Text

1. The plaintiff's primary claim against the defendant D and E, whose exchange was changed in this court, and the defendants.

Reasons

1. The reasoning for the court’s explanation on this part of the underlying facts is that the reasoning for the judgment of the first instance is as stated in the corresponding part of the reasoning of the judgment, except where the second and fifth “H” is used as “J”. Thus, this part of the reasoning for the judgment of the first instance is cited by the main text of Article 420 of the Civil Procedure Act.

2. Determination

A. 1) The Plaintiff’s primary claim is to revoke the instant transfer contract on the grounds that it is a fraudulent act, and seek restitution to Defendant D and E, the subsequent purchaser (as seen earlier, the Plaintiff’s assertion is determined as above.

(2) Since the Plaintiff’s primary claim by the Defendants was filed more than five years after the date of the Plaintiff’s legal act claiming that it was a fraudulent act, the exclusion period is excessive and unlawful.

3) According to the relevant legal principles Article 406(2) of the Civil Act, a lawsuit for revocation of a fraudulent act and restitution to original state shall be filed within one year from the date when the obligee becomes aware of the cause for revocation and five years from the date when the legal act occurred. Since the period for exercising the right of revocation is the period for filing a lawsuit, the court must ex officio investigate whether the said period is complied with and dismiss the lawsuit for revocation filed by the obligee after the lapse of such period. (4) Of the lawsuit in this case, the part of the main claim for revocation of a fraudulent act among the lawsuits in this case, which is subject to the judgment of the court, is unlawful as it is the fact that the plaintiff filed an application for alteration of the purport and cause of the claim as of December 1, 2002, which is the date when the contract for the transfer of the business in this case, which is the date when the plaintiff entered into the business in this case, and is apparent in the record. Accordingly, the part of the primary claim seeking revocation

The plaintiff should cancel the transfer contract of this case on the ground that it constitutes a fraudulent act at the time of filing the lawsuit of this case.

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