[2] Where a debt owed by a spouse to a third party during marriage becomes subject to liquidation at the time of divorce

[3] The method of taking into account the time of division of property in a case where a part of the debt subject to division of property is discharged between the time when a divorce agreement is scheduled and a divorce agreement is reported

[4] The method of determining the illegality of the act of disposal where the debtor has committed a continuous act of disposal of several properties

[5] Whether Article 66 subparag. 4 of the former Inheritance Tax and Gift Tax Act and Article 63 subparag. 6 of the Enforcement Decree of the same Act, which provide special provisions on the appraisal of inherited or donated property, apply to the assessment of the net asset value of the corporation in order to calculate the value per share of unlisted stocks (negative)

[2] The current marital property system is based on the separation between husband and wife system, and in principle, the obligations of each husband and wife are borne by each other. Thus, in cases where a husband and wife are divorced, in addition to ordinary family affairs, the obligations borne by one spouse to a third party during marriage are not subject to liquidation as an individual's obligations, in principle, in addition to ordinary family affairs, but when the obligations are borne by the third party during marriage, it is subject to liquidation when it is an obligation accompanied by the formation and maintenance of common property, and even if the specific assets acquired by the obligation remain, if it is deemed that the bearing obligation is for common interests of both husband and wife, it shall be deemed that it is accompanied by

[3] In a case where an agreement is scheduled for divorce and a prior agreement on division of property is reached, the property subject to division and the amount of the property subject to division shall be determined on the basis of the date the agreement is reached (the date of report of divorce). Therefore, in a case where a part of the obligation subject to division is repaid during the period until the agreement is reached after the agreement on division of property is reached, in principle, the amount repaid shall be deducted from the amount of the obligation. However, in a case where the debtor pays the said obligation with the donation from a third party, the amount of the property subject to division shall be considered in calculating the degree of contribution of the evidence, although the amount of the property subject to division increases in appearance as the whole reduced amount of the obligation, and there is no change in the amount of the property subject to division in any case.

[4] In principle, in a case where a debtor has engaged in a series of property disposal acts, it shall be determined according to whether each act causes insolvency. However, when there are special circumstances to regard the series of such acts as a single act, it shall be determined as a whole as a whole. In determining whether there are special circumstances, it shall be specific criteria such as whether the other party to the disposition is identical, whether the disposition is close to time, whether the other party and the debtor are specially related, and whether the motive or opportunity of the disposition are identical.

[5] Article 66 subparag. 4 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5582 of Dec. 28, 1998) and Article 63 subparag. 6 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 15971 of Dec. 31, 1998), which are special provisions for the appraisal of inherited or donated property, apply to the case where a lease contract, etc. is actually concluded, and where other properties such as lease, etc. are established based on the calculation of the value of the appraised property, it shall be applied to the case where the lease contract, etc. is established, and it is not necessary to assess the value of the pertinent property because it is difficult to identify the market price of unlisted stocks, which are appraised property, and thus, it shall not be assessed by applying it to the case where the net asset value of the relevant corporation is assessed in order to calculate the value per share in accordance with the supplementary assessment method under Article

1. Regarding ground of appeal No. 1

Article 406(2) of the former National Tax Collection Act (amended by Act No. 6053 of Dec. 28, 1999) is a kind of lawsuit for revocation of fraudulent act under Article 406(1) of the Civil Act. Thus, barring any special provision on the exercise thereof, a lawsuit must be filed within the period for filing a lawsuit under Article 406(2) of the Civil Act (see, e.g., Supreme Court Decision 2003Da30616, Dec. 12, 2003). However, “the date when the creditor becomes aware of the cause for revocation” under Article 406(2) of the Civil Act refers to the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act knowing that he would prejudice the creditor, namely, the date when the debtor would merely know the fact that he disposed of the property, it is insufficient to say that the debtor had already secured claims due to an obligor’s act of disposal or lack of joint security, and thus, it cannot be inferred that the creditor would have been 1685.

In light of the records and records of the instant tax investigation as indicated in the judgment below and the non-party 1’s complicated property ownership type, etc., the court below is just in holding that it was difficult to view that the Plaintiff had known that all of the non-party 1’s active and passive property was a fraudulent act detrimental to the Plaintiff at the time of the tax investigation, and that the gift contract in this case was not erroneous in the misapprehension of legal principles as to the period for filing a lawsuit for revocation of a fraudulent act, incomplete deliberation, or misconception of facts and omission of judgment due to the violation of the rules of evidence. The Supreme Court Decision 96Da2606, 2613 Decided May 9, 197 cited by the appellant was known by the creditor that the obligee sold the only real estate, barring any special circumstance, the obligor’s intention

Therefore, the first ground for appeal is without merit.

2. Regarding ground of appeal No. 2

Inasmuch as division of property according to divorce is not revoked as a fraudulent act unless there are special circumstances to recognize that division of property is excessive beyond a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act, it may be subject to revocation as a fraudulent act, barring special circumstances where division of property exceeds a considerable degree (see, e.g., Supreme Court Decisions 200Da14101, Jul. 28, 200; 200Da2569, Sept. 29, 200; 200Da25569, Sept. 29, 200). Whether division of property of an obligor is reasonable should be determined based on the principle of division of property between the obligee and the other spouse pursuant to Article 839-2(2) of the Civil Act (see, e.g., Supreme Court Decisions 200Da141097, Jul. 29, 200; 209Da2984969, Sept. 29, 2009).

In light of the circumstances leading up to the occurrence of the instant tax liability by Nonparty 1, the background leading up to the conclusion of the donation contract on each of the instant real property by Nonparty 1, the Defendant’s active property and the Defendant’s positive property, the negative property, and the remaining property and the debt amount by Nonparty 1 after the division of property, etc., Nonparty 1 was in excess of his liability at the time of the donation contract on each of the instant real property, and there is no remaining amount if he deducts the negative property from the positive property as it is more than the positive property subject to the division of property. However, the Defendant only has the positive property acquired through the division of property without the division of property, and even if the Defendant’s contribution to the formation and maintenance of the common property by the division of property is 10%, it is difficult for Nonparty 1 to divide the property to the Defendant. However, the donation contract and the mortgage contract on each of the instant real property were concluded as a division of property due to divorce, and there is no reasonable ground for appeal to revoke the judgment of the court below in light of the legal principles as to the grounds for appeal.

3. Regarding ground of appeal No. 3

In light of the purport of Article 839-2(2) of the Civil Act, it is reasonable to view that the division ratio of property refers to the ratio that can be divided from the other spouse regarding the whole property, not to refer to the degree of contribution to the individual property, but to the ratio that can be divided from the other spouse in consideration of the degree of contribution and all other circumstances. Therefore, the court shall, without any reasonable ground, separately determine the division ratio by distinguishing the active and passive property, or otherwise determine the division ratio by separately separating the properties to be divided, and by separately dividing the properties to be divided, it is not permissible to arbitrarily adjust the amount of active property to be divided (see Supreme Court Decision 2001Meu718, Sept. 4, 2002). If it is evident that one of the married couple’s claim for division of property cannot be accepted

The court below's distinction between the active property of Nonparty 1 and the passive property, and did not otherwise determine the division ratio of property between the defendant and Nonparty 1, is just in accordance with the above legal principles. There is no misapprehension of the legal principles as to the calculation of the division ratio of property or lack of reasoning as otherwise alleged.

Therefore, the third ground for appeal is without merit.

4. Regarding ground of appeal No. 4

A. The current marital property system is based on the separation between husband and wife system, and in principle, the obligations of each husband and wife are borne by each other. Thus, in cases where a husband and wife are divorced, in addition to ordinary family affairs, the obligations borne by one spouse to a third party during marriage are not subject to liquidation as an individual's obligations, in principle, in addition to ordinary family affairs, but when the obligations are borne by the third party during marriage, they are subject to liquidation. Even if the specific assets acquired by the debt are not in existence, if the bearing obligation is deemed to be for common interests of both husband and wife, it shall be deemed to be accompanied by the formation and maintenance of common property during marriage (see Supreme Court Order 202Do36, Aug. 28, 2002; 2003Meu16, 1173, Aug. 19, 2005, etc.).

According to the records, the non-party 1, the president of the Group (name omitted) transferred 369,00 shares of the non-party 2 corporation to the non-party 3 corporation and the non-party 4 corporation at a price higher than the market price in order to repay the advance payment to the non-party 2 corporation and the non-party 3 corporation as its major shareholder. The plaintiff imposed capital gains tax and gift tax on the transfer of shares and the receipt of payments. The non-party 1, as if it entered securities with the non-party 6 corporation, which is the same affiliate company, for the purpose of raising the funds for tax payment necessary for the operation of the Group (name omitted), and the non-party 1 voluntarily withdrawn the securities owned by the non-party 3 corporation to raise funds for purchase of shares, and the court below was just in holding that the non-party 1 was not subject to the non-party 1 corporation's debt division or the non-party 1 corporation's debt division's debt for 17 years after marriage with the non-party 1 corporation.

B. Although a claim protected by the obligee’s right of revocation should, in principle, be arisen before a fraudulent act is deemed to be a fraudulent act, there has already been a legal relationship that serves as the basis for the establishment of a claim at the time of the fraudulent act, and there is high probability as to the establishment of a claim in the near future. In fact, where a claim has been created by realizing the possibility in the near future, the claim may also be a preserved claim of the obligee’s right of revocation. This also applies to cases where the agreed property division due to the divorce of the husband and wife becomes a subject of revocation of a fraudulent act (see Supreme Court Decision 2000Da63516, Feb. 9, 2001). Accordingly, it is highly probable that there is a legal relationship which already serves as the basis for the establishment of a claim at the time of the agreement on division of property, and the debt has already been established in the near future. When it is acknowledged that the debt is accompanied by the formation and maintenance of the common property of the husband and wife, it shall be determined not only by considering the debtor’s insolvent but also by the division of property division.

The court below determined whether the non-party 1 was insolvent at the time of the division of property in consideration of the non-party 1's obligation to pay abstract tax liability upon the expiration of the taxable period on December 31, 1997, and the non-party 1's obligation to pay capital gains tax of this case confirmed as specific tax liability upon the non-party 1's voluntary report on June 1, 1998, and the obligation to pay capital gains tax of this case on January 4, 1997, and the obligation to pay excessive capital gains tax of this case confirmed as specific tax liability upon the disposition of the head of the Gangnam District Tax Office on August 16, 199, and the obligation of this case, which was confirmed as specific tax liability upon the disposition of the non-party 1 by the Gangwon District Tax Office on August 16, 199

C. In a case where a major shareholder of a securities company conspireds with an executive officer of the company and withdraws the amount equivalent to the price, even if he did not receive the securities in collusion with the company, the amount of damages of the securities company resulting therefrom shall be deemed to be the amount equivalent to the withdrawn price. Thus, in order for the major shareholder to compensate for the damages, the amount equivalent to the price shall be paid to the securities company as it is or the securities equivalent to the amount shall be purchased and stored in the securities company, and unless otherwise, the

원심은 채택 증거에 의하여, 소외 1이 소외 6 주식회사에 국민주택채권 등 유가증권을 입고한 것처럼 꾸며 그 대금 명목으로 8,786,600,000원을 인출한 후 소외 5 주식회사로부터 인출한 다른 유가증권을 대금 7,388,080,000원에 매도하여 그 대금으로 소외 6 주식회사에 입고한 것처럼 꾸몄던 유가증권과 같은 유가증권을 매입하여 이를 소외 6 주식회사에 입고한 사실을 인정한 후, 소외 6 주식회사의 손해액인 8,786,600,000원 중 소외 1이 실제로 소외 6 주식회사에 입고한 유가증권의 매입금액인 7,388,080,000원 상당의 손해는 전보되었다고 할 것이나, 그 차액인 1,398,520,000원의 손해는 전보되지 않았다고 판단하였는바, 원심의 판단은 위 법리에 따른 것으로서 정당하고 거기에 상고이유에서 주장하는 바와 같은 손해배상액 산정에 관한 법리오해의 위법은 없다.

D. (1) The property subject to division of property in the division of property following the divorce shall be determined on the basis of the date on which the divorce comes into existence (see Supreme Court Decision 2002Meu230, Mar. 14, 2003). Therefore, even in cases where one spouse bears a new obligation after the divorce comes into existence, or one spouse bears a new obligation after the divorce comes into existence, the changed property should not be considered in determining the property subject to division of property.

On the other hand, it is not different as to the relevant base date even where the agreement is scheduled to divorce and a prior agreement on division of property has been reached. Therefore, in cases where part of the debt subject to division has been repaid during the period between the agreement on division of property and the date of divorce, as a matter of principle, the amount repaid shall be deducted from the amount of the debt. However, in cases where the debtor repaid the said debt with a donation from a third party, the amount of the property subject to division increases in appearance as the whole reduced amount of the debt, but should be taken into account in calculating the degree of contribution. Furthermore, in cases where the debtor pays the said debt with an active property or the debtor bears new debt to repay the said debt, the amount of the property subject to division is reduced as much as the extinguished amount of the debt or increases

(2) In light of the above legal principles, the judgment of the court below on the non-party 1’s fine obligation is not acceptable.

According to the records, the facts constituting the crime of the non-party 1's occurrence of fine, "the non-party 1 was sold together with the representative director of the non-party 2, and the non-party 7's share price fell on December 2, 1997, and the non-party 1 and his father sold the non-party 7's shares on July 2, 1997, which were owned by the non-party 2, the non-party 9's share price of the non-party 1 and the non-party 9's share price of the non-party 1 and the non-party 2's share price of the non-party 1 and the non-party 9's share price of the non-party 1 and the non-party 2's share price of the non-party 1 and the non-party 9's share price of the above non-party 1 and the non-party 2's share price of the non-party 1 and the non-party 2's share price of 97.

Nevertheless, the court below determined whether Nonparty 1’s above fine liability was included in the non-party 1’s small property as of December 19, 1997 and determined whether it exceeded the debt, and further included the non-party 1’s small property subject to division of property. The ground of appeal pointing this out contrary to the legal principles as seen earlier is with merit.

(3) However, the lower court, on the other hand, erred by underassessment of the debt amount of Nonparty 1’s non-party 3 corporation, and by excessively evaluating the market price of non-party 1’s unlisted stocks owned by Nonparty 1, and by excessively evaluating the entire amount of the property of Nonparty 1.

(A) In principle, when a debtor has engaged in a series of property disposal acts, it shall be determined based on whether each act causes insolvency. However, when there are special circumstances to regard the series of such acts as a single act, it shall be determined as a whole. In determining whether there are such special circumstances, it shall be specific criteria such as whether the other party to the disposition is the same, whether the disposition is close to time, whether the other party to the disposition has special relations with the debtor, and whether the other party has the motive or opportunity for the disposition (see Supreme Court Decision 2005Da7795 delivered on July 22, 2005, etc.).

According to the records, the non-party 1 embezzled securities from the non-party 3 corporation. After borrowing money from the non-party 2 corporation and the non-party 10 corporation on January 18, 1997, the non-party 1,584,662,00 won, gold 1,357,960,000 won on April 30, 1997, 150,000 won on December 3, 1997, and 300,000,000,000 won on December 22, 197, 197, 493,493,497,690 won on December 26, 197, and 300,000 won on the non-party 1,000,000 won on the non-party 3 corporation as of December 13, 198; the court below determined the remaining amount after deducting the amount of debt from the non-party 1 corporation as of this case.

First of all, the judgment of the court below on the non-party 1's insolvency (excess of debt) as of December 19, 197, taking into account the above legal principles and records, the parties to the donation contract and mortgage contract of each of the instant real estate are identical to the defendant and the non-party 1, and two persons are married, and they concluded a mortgage contract within 80,000 after the conclusion of the donation contract. The object of the mortgage contract of this case is all part of the object of the donation contract of this case, and the mortgage contract of this case was established to secure the implementation of the donation contract of this case. Thus, there are special circumstances that the donation contract of this case and mortgage contract of this case are deemed to be a single fraudulent act. Accordingly, the issue of non-party 1's insolvency as to each of the instant real estate of this case should be determined as of December 19, 197, which is the donation contract of this case, and the amount repaid thereafter shall not be deducted from the amount of debt to the

Furthermore, the judgment of the court below on the reasonableness of division of property of this case is the principle that the amount repaid between December 24, 1997, which was the date of the divorce of the defendant couple after the date of the agreement on division of property of this case (the date of donation contract) shall be deducted from the debt amount of the non-party 1. However, as seen earlier, since the non-party 1 repaid the debt to the non-party 3 with the funds borrowed from the non-party 2 corporation and the non-party 10 corporation, the amount of the debt to the non-party 2 corporation and the non-party 10 corporation increased as much as the amount decreased among the debt amount to the non-party 3 corporation, there is no change in the total amount of the debt amount to the non-party 1, and therefore, in determining the reasonableness of division of property of this case, the amount repaid between December 19, 197 and December 24, 197, which was the date of divorce, it shall not be deducted from the debt amount of the non-party 1's debt amount to the non-party 1.

Therefore, in determining whether Nonparty 1’s insolvent as of December 19, 197, which was the date of the donation contract of this case, and whether the agreement on division of property between the Defendant and Nonparty 1 is reasonable, Nonparty 1’s small property should be added to KRW 793,457,690 ( KRW 300,000,000 repaid on December 22, 1997 + KRW 493,457,690 repaid on December 26, 1997).

(B) According to Article 66 subparag. 4 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5493 of Dec. 31, 1997) and Article 63 subparag. 6 of the Enforcement Decree of the same Act, which provide that the value of the pertinent property shall be the larger of the amount calculated by dividing the rent for one year by the rate prescribed by Ordinance of the Prime Minister, the total amount of lease deposit, and the appraised value under Article 60 of the same Act, which are the special provisions on the appraisal of inherited or donated property. The application of the above provisions is a case where a lease contract, etc. is entered into in itself, and where other property is established as a basis for calculating the value of the appraised property, the property shall be assessed by applying the above provisions to the case where the market price of the appraised property is difficult to identify, and thus, the value of the relevant property shall not be assessed by applying the supplementary method under Article 54(1) of the Enforcement Decree to the assessment of the net asset value per share (see, e.g., Supreme Court Decision 2004Du584.

Nevertheless, the court below calculated the value of the real estate owned by Nonparty 2 as the conversion price for rent pursuant to Articles 60(1) and (3), 61(1)1 and 61(2), Article 66 subparag. 4 of the former Inheritance Tax and Gift Tax Act, and Article 63 subparag. 6 of the Enforcement Decree of the same Act, based on the result that the value of the real estate held by Nonparty 2 was appraised as the conversion price for rent for the real estate held by Nonparty 2. In accordance with the above legal principles, the real estate owned by Nonparty 2 is assessed as the standard market price for the real estate owned by Nonparty 1, 78,527 won for the calculation of the price per share of the stocks of the above company. If the value of the real estate owned by Nonparty 1 is multiplied by 131,000 won for the total number of stocks owned by Nonparty 1, 287,037,00 won for the decrease of the value of the real estate owned by Nonparty 1, 2014,2005 won.

(4) In full view of this, the sum of Non-Party 1’s active property as of the date of the conclusion of the instant donation contract and the date of non-party 1’s agreement is KRW 21,252,496,760 (the aggregate of active property recognized by the first instance court - KRW 25,087,914,760) - The sum of the negative property is KRW 3,835,418,000 (the aggregate of the negative property recognized by the first instance court - KRW 25,735,54,032 - the debt amount of KRW 2,089,920 + KRW 70,000 as of the date of non-party 1’s agreement, and the amount of non-party 2’s active property division is more than that of the defendant’s active property division - the aggregate of the amount of the non-party 1’s active property division - the amount of 70,5708 won as of the property division of the other property.

Therefore, the judgment of the court below is justified in the conclusion that the non-party 1's small property as of the date of the donation contract of this case and the date of the conclusion that the agreement between the defendant and the defendant couple is more than the active property, and therefore, it is not erroneous in the judgment that affected the conclusion of the judgment. Ultimately,

3. Regarding ground of appeal No. 5

According to the records, the donation contract of this case was concluded by Non-party 1, the core company of the (title omitted) group's (name omitted), the non-party 6 corporation was insolvent, the non-party 7 corporation was ordered to suspend its business, and the non-party 1 was involved in the act of transferring stocks, embezzlement, etc. which caused the non-party 1's debt. After the donation contract of this case, the non-party 1's assets remain in two lots of forest land, health club membership, stocks, etc., and the non-party 6 corporation and non-party 7 corporation did not have a value of shares due to the non-party 1's default or business suspension order, and the non-party 1's existence was threatened in a mutual-capital relationship. In fact, some companies did not know that the non-party 1's intention at the time of division of property of this case was sufficiently recognized, and that the non-party 1 was not presumed to have actively engaged in the non-party 1's business in the non-party 1's family.

In the same purport, the court below rejected the defendant's defense that the non-party 1's intention of deception and the defendant did not know that he would prejudice the creditor. The judgment of the court below is just and it is not erroneous in the misapprehension of legal principles as to the recognition of the debtor and beneficiary's bad faith in revocation of fraudulent act and the burden of proof. Therefore, the ground of appeal

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Sung-tae (Presiding Justice)