2. BB

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

【State Claim】

1. The agreement on donation between Defendant AA and CCC 1 and the agreement on donation between Defendant BB and CCC 2 shall be revoked respectively.

2. The Plaintiff shall pay to Defendant AA 225,00,000 won, Defendant BB 31,000,000 won, and each of the above amounts with 5% interest per annum from the day following the day this decision became final and conclusive to the day of full payment.

【Preliminary Claim】

1. The repayment of the money listed in attached Table 1 between Defendant AA and CCC and the repayment of the money listed in attached Table 2 among Defendant CCC shall be revoked, respectively.

2. The Plaintiff shall pay to Defendant AA 225,00,000 won, Defendant BB 31,000,000 won, and 5% interest per annum from the day following the day this decision became final and conclusive to the day of full payment.

A. Defendant AA is the father of CCC and Defendant BB is the wife of CCC.

B. 1) On November 28, 2016, CCC entered into a sales contract with the head of ○○○○ and △△△△△△△△ (hereinafter “○○, etc.”) on the condition that the sales contract was to pay KRW 500,000 for KRW 4,972,000,000 for the purchase price and KRW 300,000 for the same miscellaneous land (hereinafter “instant real estate”) and the intermediate payment was to pay KRW 4,172,00,000 for the remainder until December 9, 2016 (hereinafter “instant sales contract”), and the sales contract was entered into with the head of ○, etc. from February 24, 2017 to KRW 30,000 for the sales price and KRW 300,000 for the intermediate payment, KRW 4,172,00,000 for the remaining payment until December 24, 2017 (hereinafter “instant sales contract”).

The separate payment date, amount and payment method account

Down payment of KRW 500,000,000 Check Payment Bank on November 30, 2016

An intermediate payment of KRW 300,000,000 for account transfer on December 09, 2016

Any balance 2017.02.24 2,165,634,976 Gyeongnam Bank

Busan Bank by account transfer of KRW 1,834,365,024 on December 24, 2017

Konam Bank of 150,000,000 account transfer of 150,000 won

Konam Bank of 20,191,316 on April 24, 2017

Total 4,970,191,316

2) On February 24, 2017, CCC completed the registration of ownership transfer based on the instant sales contract, each of 1/2 shares of the instant real estate to ○○○, etc.

C. From November 30, 2016 to April 27, 2017, CCC paid KRW 225,000,000 each to Defendant AA as shown in the attached Table 1, and Defendant BB as listed in the attached Table 2 (hereinafter “instant monetary payment act”).

D. On April 30, 2017, the CCC made a preliminary return of capital gains tax for the year 2017 by taking the transfer value of the instant real estate as KRW 4,972,00,000. The Plaintiff determined that CCC paid capital gains tax of KRW 475,760,576 on June 9, 2017 and notified CCC to pay capital gains tax of KRW 475,760,574 on August 31, 2017 by setting the due date for payment on June 30, 2017. As of March 29, 2018, C7CC’s arrears are KRW 1,047,358,800.

E. At the time of the instant monetary payment, CCC had been in excess of its liabilities.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 5 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) At the time of the act of paying the instant monetary amount, the CCC (CCC) donated the sum of KRW 256,000,000 to Defendant AA and Defendant BB, his father, who is his spouse, while predicting that the said amount would have been determined and notified as at the time of the act of paying the instant monetary amount. As such, the said donation agreement constitutes a fraudulent act detrimental to the general creditors of CCC by reducing joint collateral, and thus, the said agreement should be revoked. Accordingly, Defendant AA shall be obligated to recover the said amount to the Plaintiff to pay the Plaintiff KRW 225,00,000,00 and delay damages.

2) Preliminaryly, even if the instant monetary act constitutes an act of reimbursing the Defendants’ existing loans, the Defendants, in collusion with CCC, received the said monetary act with the intent to prejudice other creditors, and thus, the said act should be revoked as it constitutes a fraudulent act.

B. The defendants' assertion

The Defendants did not receive the money from the CCC, but received the repayment of the borrowed money accrued prior to the instant monetary act. Since the Defendants did not know of the excess of the CCC’s debt at the time and did not receive the repayment with the intent to prejudice other creditors of CCC, there is no fraudulent act between CCC and the Defendants.

3. Determination

A. The plaintiff's preserved claim

1) In principle, a claim that can be protected by the obligee’s right of revocation needs to be, in principle, arisen prior to the commission of an act that can be deemed a fraudulent act. However, at the time of a fraudulent act, there is a high probability that there exists a legal relationship which is the basis of the establishment of a claim, and that the claim is established in the near future in the near future, and where a claim has been created by realizing the probability in the near future, such claim may also become a preserved claim (see, e.g., Supreme Court Decision 2011Da76426, Feb. 23, 2012).

2) As to the instant case, the fact that the instant real estate transfer income tax claim against CCC, the Plaintiff’s preserved claim, occurred after the payment of the instant monetary amount. However, at the time of the conclusion of the instant sales contract, there was a high probability that the said transfer income tax claim would be established in the near future since the abstract tax liability for the transfer income tax was already established at the time of the conclusion of the instant sales contract, or the taxable period was commenced, and thereafter, the Plaintiff actually incurred capital gains tax claim by determining and notifying CCC of the transfer income tax following the transfer of the instant real estate. Thus, the said transfer income tax claim constitutes the preserved claim of

B. Whether the instant monetary payment constitutes a fraudulent act

1) Legal nature of the instant monetary payment act

If a debtor donated his/her own property to another person in excess of his/her obligation, such act would constitute a fraudulent act, barring special circumstances. However, in cases where the debtor's joint security of other creditors is reduced by repaying his/her obligation to a specific creditor under excess of obligation, the repayment does not constitute, in principle, a fraudulent act unless the debtor, in collusion with some creditors, made performance with the intent to impair other creditors, in principle. However, in cases where the creditor seeking revocation of fraudulent act claims that the debtor's monetary payment to the beneficiary was a donation of the debtor's existing obligation, the beneficiary is not a denial of the creditor's assertion, and as seen in the above legal principle, there is a significant difference between the debtor's monetary payment and the creditor's assertion and proof depending on whether the debtor's monetary payment was a donation or repayment. Accordingly, it should be proved that the above monetary payment constitutes a donation to be recognized as a fraudulent act, or that it constitutes a creditor's intent to harm the creditor, etc. (see, e.g., Supreme Court Decision 2005Da286867, May 27, 20007).

이 사건에 관하여 보건대, 원고가 제출한 증거들만으로는 CCC의 이 사건 금원지급행위가 증여라고 보기 부족하고, 달리 이를 인정할 증거가 없다. 오히려 앞서 든 증거들과 을 제1 내지 5, 7, 8호증의 각 기재 및 변론 전체의 취지에 의하면, ① 피고AAA은 2012. 3. 22. 자신 소유의 ▣▣시 ◈◈면 리 답 1,964㎡ 및 같은 리 전 638㎡에 관하여 채권최고액 143,000,000원, 채무자 피고 AAA, 근저당권자 축산업협동조합으로 된 근저당권을 설정하고 같은 날 위 각 부동산을 담보로 110,000,000원을 대출받아(이하 '이 사건 제1 대출'이라 한다) 2012. 3. 23. CCC에게 110,000,000원을 송금한 사실, ② 피고 AAA은 2012. 5. 3. 자신 소유의 부산 구 ○동 대 171.6㎡ 및 그 지상 주택에 관하여 채권최고액 143,000,000원, 채무자 피고 AAA, 근저당권자 축산업협동조합으로 된 근저당권을 설정하고 2012. 5. 4. 위 각 부동산을 담보로 110,000,000원을 대출받아(이하 '이 사건 제2 대출'이라 한다) 2012. 5. 7. CCC에게 110,000,000원을 송금한 사실, ③ 피고 AAA은 2015. 12.8. 자신 소유의 ▣▣시 ◈◈면 리 답 1,964㎡ 및 같은 리 전 638㎡에 관하여 채권최고액 240,000,000원, 채무자 피고 AAA, 근저당권자 농업협동조합으로 된 근저당권을 설정하고 같은 날 위 각 부동산을 담보로 200,000,000원을 대출받아(이하 '이 사건 제3 대출'이라 한다) 그 중 110,223,254원으로 이 사건 제1 대출원리금을 상환하여 그 근저당권설정등기를 말소한 후, 2015. 12. 9. 89,000,000원을 CCC이 대표자인 사내이사로 있는 주식회사 명의의 계좌로 송금한 사실, ④ 피고 BBB은 2012. 3. 21. 축산농협으로부터 30,000,000원을 대출받아(이하 '이 사건 제4 대출'이라 한다) 2012. 3. 22. CCC에게 29,000,000원을 송금한 사실, ⑤ CCC은 이 사건 제1 내지 4 대출금에 대한 이자를 계속 납입하여 오다가 별지 표 기재와 같이 피고들에게 합계 256,000,000원을 지급하였는데, 피고 AAA은 CCC으로부터 마지막으로 금원을 송금받은 날인 2017. 4. 27. 이 사건 제2 대출원리금 110,711,171원 및 이 사건 제3 대출원리금 201,073,095원을 각 상환하고, 피고 BBB은 CCC으로 부터 31,000,000원을 송금받은 다음날인 2017. 3. 9. 이 사건 제4 대출원리금 30,372,331원을 상환한 사실이 인정된다. 위 인정사실에 더하여 축산업협동조합, 농업협동조합, 축산농협과 피고들, CCC 사이의 총 거래금액에 비추어 위 금융기관들이 피고들에게 대여한 각 금원과 피고들이 CCC에게 송금한 각 금원 사이에 액수 차이가 크지 않은 점, CCC이 피고들로부터 수령한 각 금원과 이후 별지 표 기재와 같이 피고들에게 지급한 각 금원 사이의 액수 차이 역시 크지 않은 점 등에 비추어 보면, CCC은 피고들로부터 이 사건 제1 내지 4 대출금 상당의 금원을 차용하고, 그 차용금채무를 변제하기 위하여 피고들에게 별지 표 기재와 같이 금원을 교부하였다고 봄이 상당하다.

(ii)the intent to commit fraudulent acts and to commit fraud;

The above facts and evidence are as follows. ① CCC was 120,000,000 won in connection with the loan contract and oil supply contract around January 2016, and the Defendants were 30,000,000 won in total and 500,000 won in total and 500,000 won in real estate loan and 30,000 won in real estate loan and 40,000 won in 20,000 won in each of the above loan and 30,000 won in 20,000 won in real estate loan and 17,000,000 won in each of the above loan and 30,000 won in 20,000 won in 30,000 won in 20,000 won in 20,000 won in 30,000 won in 20,000 won in each of the above loan and 30,017.

4. Conclusion

Therefore, all of the plaintiff's main claim and ancillary claim are dismissed as they are without merit. It is so decided as per Disposition.

Limit of compensation for the equivalent amount on the date of payment

1 Defendant AA

on November 30, 2016 KRW 2,500,000

1,047,358,800 won

on December 30, 2016 KRW 2,500,000.

Won 100,000,000 on April 13, 2017

Won 100,000,000 on April 27, 2017

Won 10,000,000 on April 27, 2017

Won 10,000,000 on April 27, 2017

Gohap25,000,000

2 Defendant BBBB KRW 31,000,000 on March 8, 2017

United States 31,000,000