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(영문) 창원지방법원 2018. 12. 13. 선고 2017가합52996 판결

사해행위취소소송에서 수익자의 악의는 추정됨[국승]

Title

In a lawsuit for revocation of fraudulent act, the beneficiary's bad faith is presumed.

Summary

The beneficiary's bad faith means that the legal act between the debtor and the beneficiary harms the creditor, that is, the awareness that the legal act satisfies the objective requirements of the fraudulent act, and where the legal act of the debtor against the third party constitutes a fraudulent act objectively, the beneficiary's bad faith is presumed, so the beneficiary is responsible for proving that the beneficiary himself/herself has acted in good faith.

Related statutes

§ 406. Revocation of Civil Code

Cases

Revocation of Fraudulent Act

Plaintiff

AA

Defendant

aa and two others

Imposition of Judgment

December 13, 2018

Text

1. As to the shares of 2/9 of the shares in each real estate listed in paragraph 1 of the separate sheet and the shares of 4/72 of the shares in each real estate listed in paragraph 4 of the separate sheet between Defendant AA and DD, with respect to the shares of 2/9 of the shares in each real estate listed in paragraph 2 of the separate sheet between Defendant BB and DD, the agreement on the division of inherited property concluded on August 3, 2016 between Defendant CC and DD with respect to the shares of 2/9 of the shares in each real estate listed in paragraph 3 of the separate sheet shall be revoked.

2. Ddd. In relation to shares of 2/9 shares of each real estate listed in Schedule 1, and of 4/72 shares of each real estate listed in Schedule 4, Defendant bB shall implement the procedures for ownership transfer registration for each real estate listed in Schedule 2, with respect to shares of 2/9 shares of each real estate listed in Schedule 2, and Defendant cc shall implement the procedures for ownership transfer registration for each real estate listed in Schedule 3, with respect to shares of 2/9 due to the revocation of each fraudulent act.

3. The costs of lawsuit shall be borne by the Defendants.

The same shall apply to the order of the Gu office.

Reasons

1. Facts and circumstances of recognition;

A. DD operated a “fff in the development of mobile content” from around 2002, and discontinued its business due to a shortage in funds around 2010. From 2006 to 2010, DD notified 11 national taxes, such as capital gains tax, (hereinafter “the instant national taxes”) to DD from 2006 to 2010, and DD’s unpaid national taxes (including additional dues, etc.) as of June 23, 2017, as of the filing date of the instant lawsuit, are xx members.

B. The deceased on April 4, 2016 and Defendant Cc(3/9) died on the deceased’s death. The deceased’s spouse, Defendant Aaa, bbb, and Nonparty D D (2/9 of each share of inheritance) are the children of the deceased e. The deceased e. The deceased e owns 2/8 shares of each real estate listed in the separate sheet Nos. 1, 2, and 3 as of the time of the death, and of each real estate listed in the separate sheet Nos. 4 as of January 1, 2016, the land or individual housing, the maximum debt amount of the right to collateral security (the date of death of the deceased e. through the date of the closing of the argument in this case) and each amount of D e/D shares is listed in the following table. DD did not have active property of the deceased e, except for real estate inherited from the deceased e.

D. The amount remitted to the account in the name of the deceased E or the Defendants from 2003 to 2014 is KRW 700,000,000,000 to KRW 50,000,000,000,000,000,000 to D or D or D from e or D from 200 to 2000,000,000,000,000,000,000,000,0000,000,000,000,000,000

E. On August 3, 2016, the Defendants, the heir of the deceased e, and DD agreed on the division of inherited property with the purport to vest the shares of each real estate listed in the separate sheet or the shares of the deceased e among them as follows. The Defendants completed the registration of ownership transfer based on the agreement on the division of inherited property on August 3, 2016 or August 4, 2016.

[Ground of recognition] Facts without dispute, Gap 1 to 5 evidence, Eul 1 to 7 evidence (including paper numbers), the purport of the whole pleadings

2. The assertion and judgment

A. Determination on the cause of the claim

1) Since the occurrence of the preservation claim of this case was notified prior to the date of consultation on division of inherited property, the preservation claim becomes the preserved claim. As of June 23, 2017, which was before the date of the closing of argument in this case, the total sum of thex won including additional dues, etc., is the amount of the claim (see Supreme Court Decision 2006Da66753, Jun. 29, 2007).

2) Fraudulent act

As of April 4, 2016, 2016, the date of the deceased e's death, or the date of the agreement on the division of inherited property, dd's active property as of August 3, 2016, d'1. (c)' is the entire share of each immovable property. D's passive property is the amount including additional dues up to that time out of the national tax of this case, d's inheritance of d' among the secured debt of the right to collateral security established on each of the above real property, d's loan obligations against the Defendants of d'.

D. As of June 23, 2017, the land price or individual housing price publicly announced to D is KRW 359,36,838,000, the total amount of national tax bonds of this case as of June 23, 2017, which was the date of the filing of the lawsuit in this case, is below x won. There is no data to identify specific secured amount of D's mortgage equivalent to D's share, but there is no maximum debt amount 26,44,444, and D's claim against D's Defendants about the obligations to D's Defendants is above KRW 1,00,00,000 and the remittance details are confirmed, which is approximately KRW 70,00,000, or KRW 30,000,000 (which is more than 300,000,0000,0000,0000,0000,0000,000).

3) The intention of the diversity

In light of the aforementioned circumstances, d's intent of d' is also recognized (see Supreme Court Decision 97Da57320, May 12, 1998).

4) Sub-committee

Therefore, with respect to the share of 2/9 of the real estate listed in the separate sheet No. 1 and the share of 4/72 of the real estate listed in the separate sheet No. 4 of the real estate listed in the separate sheet No. 1, with respect to the share of 2/9 of the real estate listed in the separate sheet No. 2 of the real estate listed in the separate sheet No. 2 of the defendant BBB and DD, the agreement on the division of inherited property concluded on August 3, 2016 between the defendant CC and DD should be cancelled as a fraudulent act, and therefore, the agreement on the division of inherited property between the defendant CC and DD shall be cancelled as to the share of 2/9 of the real estate listed in the separate sheet No. 1, and the share of 4/72 of the real estate listed in the separate sheet No. 4 of the attached sheet No. 1, the defendant BB and D, with respect to the share of 2/9 of the real estate listed in the separate sheet No. 2 of the separate sheet No. 2940. 298. 294.2.

B. Determination as to the defendants' good faith defense

1) Summary of the defendants' defenses

Since ddd did not waive inheritance, the Defendants thought that DD did not have any obligation to pay unpaid national taxes, etc., and therefore, the Defendants did not know that DD would be a fraudulent act, or that Kim Jong-sung would be aware of the intention to commit a fraudulent act. Therefore, the Defendants are bona fide beneficiaries.

2) Determination

of the beneficiary's bad faith, that the legal act between the debtor and the beneficiary would prejudice the obligee;

In other words, awareness that the Defendants met objective requirements of fraudulent act (see Supreme Court Decision 2014Da237192, Jun. 11, 2015). In a lawsuit seeking revocation of fraudulent act, if a legal act against a third party constitutes a fraudulent act, the beneficiary is presumed to be malicious. Therefore, the beneficiary is liable for proving that the Defendants had acted in good faith at the time of such legal act (see Supreme Court Decision 2015Da4472, Nov. 26, 2015). The aforementioned facts and circumstances, Gap6, 7, 8 (including branch numbers), and 2,3 through 6, and the overall purport of arguments, and the Defendants were unable to receive funds from ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Family Association’s disposal of inherited property, and, in other words, DD’s disposal of inherited property was not sufficient to acknowledge the Defendants’ repayment amount to d and its assets.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is justified, and all of them are accepted, and it is so decided as per Disposition.