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(영문) 서울고등법원 2020.07.16 2020나2004957
사해행위취소
Text

1. Of the judgment of the court of first instance, the part concerning Defendant C is modified as follows.

D and Defendant C on June 23, 2014.

Reasons

1. The reasoning of the judgment of the first instance is the same as the reasoning of the judgment, except in the following cases: (a) the underlying facts and the parties’ assertion in this case are based on the reasoning of the judgment of the court of first instance.

2. Determination

A. According to the facts acknowledged before the existence of the preserved claim, the Plaintiff holds a joint and several obligation amounting to KRW 3.9 billion against D, which is the preserved claim of this case.

B. If an obligor donated his/her own property to another person in excess of his/her obligation under the relevant legal principles, such an act constitutes a fraudulent act, barring any special circumstances. However, in such a case, where such an act cannot be deemed ultimately an act detrimental to general creditors in light of the general standard of judgment of piracy, the establishment of a fraudulent act may be denied (see, e.g., Supreme Court Decision 2014Da33086, Sept. 10, 2015). Where an obligor continuously engages in several disposal of property, in principle, depending on whether each act causes insolvency. However, if there are special circumstances to deem a series of acts as a single act, the determination of whether there is such special circumstance should be made by comprehensively taking into account whether the other party is the same as the other party, whether each disposition is adjacent to the other party, whether the other party and the obligor are specially related, and whether the obligor’s motive or opportunity for each disposition is the same as the obligor’s assertion that the act was made against the beneficiary (see, e.g., Supreme Court Decision 201204Da271474.

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