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(영문) 대전지방법원 천안지원 2014. 01. 10. 선고 2013가합100289 판결

이 사건 각 증여계약은 사해행위에 해당하므로 전부 취소되어야 함[국승]

Title

Each contract of this case constitutes a fraudulent act and must be revoked in its entirety.

Summary

As long as the delinquent taxpayer had already been in a state of excess of his/her liability on the date of the resolution of the instant case, and it is clear that each gift contract of the instant case has deepened its debt, it constitutes a fraudulent act in relation to the plaintiff, who is a tax claimant, and as a result, the defendant's bad faith is presumed as the beneficiary. Therefore, each gift contract of this case

Related statutes

Article 30 of the National Tax Collection Act

Cases

2013 Gohap100289

Plaintiff

Korea

Defendant

AA

Conclusion of Pleadings

December 18, 2013

Imposition of Judgment

on October 10, 2014

Text

1. A. The defendant and the non-party shall revoke all of each gift contract entered into as shown in the separate sheet. However, the defendant shall pay to the plaintiff 153,700,000 won and 5% interest per annum from the day following the day this decision became final and conclusive to the day of complete payment.

2. The costs of the lawsuit are assessed against the defendant.

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

Reasons

1. Basic facts

A. On May 18, 2010, the Defendant’s mother, ○○○○○○○○○○○○○○○○○○○○○ 2,00 KRW 27/37 shares of KRW 580,00,000, KRW 27/137,000 each of the above real estate was completed on March 29, 201. Meanwhile, on August 26, 201, ○○○○○○○ 2,000 KRW 14-27,00,000, KRW 14-27,000,000 KRW 8,00,000, KRW 27,000,000, KRW 27,000,000, KRW 14-27,000,000,000, KRW 88,000,00,00,000.

2. Determination

(a) Occurrence of the right to revoke the fraudulent act;

1) Formation of preserved claims

Although it is essential that a claim that can be protected by the obligee’s right of revocation has arisen before the act was conducted, in principle, prior to the occurrence of a fraudulent act. However, it is highly probable at the time of the fraudulent act to the effect that a claim is established in the near future, and where a claim has been realized in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 98Da5690, Apr. 27, 1999). In addition, the date on which the obligation to pay the instant tax claim was established becomes final and conclusive on May 31, 2010 (the date on which the obligation to pay the tax belonged to October 31, 201) and August 31, 2011 (the portion on which the instant tax claim reverts to October 18, 2011). Accordingly, each of the instant tax claims is determined and specific to have accrued in the near future by the Plaintiff’s right of revocation.

A) Sales claim amounting to KRW 169,600,000, which would have been paid pursuant to the instant sales contract with active property of ○○○○ on October 18, 2011 when the instant remittance was committed (in accordance with each of the instant gift contracts, each of the instant donations contracts)

In full view of the facts that ○○○○○○’s passive property had no dispute between the parties, and comprehensively taking account of the entries in the evidence No. 1 (including the serial number) and the purport of the entire pleadings, it can be acknowledged that 330,365,875 won (based on the notified tax amount once there is no evidence for calculating additional tax) was the aggregate of KRW 87,436,610, and KRW 242,929,265, and KRW 330,365, and KRW 875 (based on the notified tax amount) of the capital gains tax to be paid according to the above sales contract. According to the above findings, ○○○ was already in a state of excess of liability on October 18, 201, and it is clear that the excess of liability deepens due to each of the instant donations contracts, this constitutes a fraudulent act in relation to the Plaintiff, which is the general creditor of ○○○○○○○○○○, the Plaintiff’s respective underlying assets that had been transferred from 1010.

In regard to this, the defendant's each of the instant gift contracts was concluded for the repayment of the money for the money for the purchase of laundry to be received from ○○○○○. Thus, there was no evidence to prove that it was a fraudulent act at the time of the conclusion of each of the instant gift contracts, but there is no reason to establish it.

Therefore, each gift contract of this case between the defendant and the ○○○○ constitutes a fraudulent act, so it should be revoked in its entirety.

(b) Methods of reinstatement;

Meanwhile, as in the instant case, since it is impossible to return originals if cash donation was made and it was consumed, it is reasonable to order compensation for value. The Defendant, a beneficiary, is obliged to pay to the Plaintiff, a creditor of ○○○○○○, the amount of compensation for value at the statutory rate of 153,70,000 won equivalent to the above amount of donation, and damages for delay at the rate of 5% per annum as stipulated in the Civil Act from the day following the day this judgment

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.