2014 Gohap 3733 (Counterclaim Damage)

2. Of the costs of lawsuit, the costs incurred by the Plaintiff (Counterclaim Defendant) and the costs incurred by the counterclaim shall be borne, respectively, by the Defendant (Counterclaim Plaintiff).

Cheong-gu Office

In this lawsuit: A sales contract concluded on January 4, 2010 between the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) and ParkB with respect to the real estate listed in the separate sheet No. 3 and the separate sheet No. 4 shall be revoked, and the Defendant will implement the procedure for the registration of ownership transfer for the restoration of real name. The sales contract concluded on August 18, 2008 between the Defendant and ParkB with respect to the real estate listed in the separate sheet No. 1 and the real estate listed in the separate sheet No. 2 shall be revoked within the limit of the OOOO, and the Defendant will pay the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) with 5% interest per annum from the day following the date the judgment of this case became final to the day of full payment.

Counterclaim: The defendant shall pay to the plaintiff 25% interest per annum from the day following the day when the judgment of this case becomes final to the day of complete payment.

A. Formation of a taxation claim

"1) Around December 1, 2009, the head of XX head of the tax office issued a prior notice of taxation as of January 31, 2008 on 2008 regarding 'OB' to ParkB on the 3rd day of December 1, 2009, 'OB' transferred OB 1278 CCC OO2, 1278 CCC OB2, and 'OB' did not report capital gains tax' as of 008, 'OOB', 2010, '200, 000, 000, 000, 000, 000, 100,000,0000,000,000,000,000,000,0000,000,000,000,000,000,000,000.

3) ParkB did not pay each of the instant capital gains tax by the payment deadline, and on June 30, 2014, the amount in arrears of ParkB as of June 30, 2014 is the total amount of OB including additional charges.

(b) An act of property disposal between the ParkB and the Defendant and the Defendant;

1) ParkB married with the Defendant on September 200, 200, and on June 2009, the agreement was shared.

2) On August 19, 2008, ParkB completed the registration of ownership transfer for the Defendant on the ground of the sale on August 18, 2008 (hereinafter referred to as "the first sale contract of this case") as to the real estate listed in the attached list 1 (hereinafter referred to as "the first sale contract of this case").

2) On December 29, 2009, ParkB completed on December 29, 2009 the registration of transfer of ownership on the real estate listed in the Schedule 2 (hereinafter referred to as the “second real estate”) to the Defendant based on the sale and purchase on December 6, 2009 (hereinafter referred to as the “second sale and purchase contract”).

3) On January 14, 2010 and the 15th of the same month, ParkB completed the registration of transfer of ownership on the ground of sale as of January 4, 2010 (hereinafter referred to as the "third sale contract of this case") on the real estate listed in the attached list 3 (hereinafter referred to as the "third real estate of this case") and the real estate listed in the attached list 4 (hereinafter referred to as the "fourth real estate of this case").

C. The plaintiff's real estate disposition prohibition and provisional disposition and provisional seizure of real estate

이 사건 제1 부동산에 관하여, 원고는 2013. 5. 6. 이 법원 2013카단XXXX호로 사해행위취소에 의한 원상회복청구권을 피보전권리로 하여 부동산처분금지가처분결정을 받았고, 같은 날 위 가처분결정에 따른 가입등기가 마쳐졌으며, 원고는 2014. 1. 13. 이 법원 2014카단XXX호로 사해행위취소에 의한 원상회복청구권을 피보전권리로 하여 부동산가압류결정을 받았고, 2014. 1. 14. 위 가압류결정에 따른 기입등기가 마쳐졌다.

[Reasons for Recognition] Facts without a partial dispute, Gap evidence Nos. 1 through 3, 13 (including each number), Eul evidence No. 7 and the purport of the whole pleadings

2. Determination as to the principal lawsuit

A. Determination on the main defense of this case

1) The defendant's assertion

The Defendant, at the latest around January 201, knew that ParkB sold each of the instant real estate to the Defendant, and accordingly, asserted that the instant principal lawsuit filed on May 3, 2013, which was later than one year thereafter, was unlawful on the ground that the exclusion period is excessive.

2) Determination

In the exercise of the right of revocation, the "date when the creditor becomes aware of the ground for revocation" means the date when the creditor becomes aware of the requirements for the right of revocation, that is, the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act with the knowledge that he would prejudice the creditor. Thus, it is not sufficient that the debtor merely knows that he/she conducted a disposal act of the property, and that such a juristic act constitutes an act detrimental to the creditor. In other words, it is necessary to know that the juristic act was thereby not sufficient to satisfy the claims completely due to the lack of joint security of the claim or the lack of joint security already in the short condition, and that the debtor had the intent to harm the creditor (see, e.g., Supreme Court Decision 200Da11239, Nov. 26, 2002). Meanwhile, the burden of proof regarding the limit of the limitation period lies in the party to the creditor revocation lawsuit (see, e.g., Supreme Court Decision 2007Da63102, Mar. 26, 2009)

“In light of the foregoing legal principles, there is no evidence to acknowledge that the Plaintiff was aware of the transfer of each of the instant real estate by ParkB on January 28, 201, and that the Plaintiff was aware of the property status of ParkB on February 28, 2011. Rather, comprehensively taking account of the overall purport of the entries and arguments in the evidence Nos. 1, 3, and 5 (including the paper numbers), the Plaintiff confirmed that the Plaintiff was issued a marriage certificate of ParkBB on February 28, 2013, confirmed the copy of the register of each of the instant real estate on April 2, 2013, and confirmed on April 5, 2013 by printing out a summary protocol of ParkBB’s each taxpayer on April 28, 2013, and therefore, it can be recognized that the Plaintiff started an investigation into the property status of ParkB on February 28, 2013, and therefore, the Plaintiff did not have any reason to determine that each of the instant real estate transfer constituted safety act.”

1) Whether there is a preserved claim

A) In principle, a claim that can be protected by the obligee’s right of revocation may be, in principle, established prior to the commission of an act that is deemed a fraudulent act, but there is a high probability that at the time of the fraudulent act, there is a legal relationship that has already been based on which the claim was established, and that the claim should be established in the near future by realizing the possibility in the near future, the claim may also become a preserved claim of the obligee’s right of revocation in the near future. Such legal principle applies to a tax claim (see, e.g., Supreme Court Decision 2006Da66753, Jun. 29, 2007). Meanwhile, the income tax on the gains from transfer of assets is a tax paid by preliminary return and the obligation to pay is abstract as of the last day of the month (see, e.g., Supreme Court Decision 88Nu2519, Oct. 13, 1989).

B) As seen earlier, the establishment date of the obligation to pay each of the transfer income tax of this case was on May 31, 2007, the last day of the month to which the transfer date belongs, and on January 31, 2008, the abstract tax liability had already been established prior to the transfer of each of the instant real estate, and at the time of the transfer of each of the instant real estate, there was a legal relationship that serves as the basis for establishing the obligation to pay transfer income tax of this case. (ii) It is sufficiently anticipated that the additional tax would be notified if the circumstances were revealed that the transfer income tax was not reported or the acquisition value and tax rate were erroneously applied, and thus, there is a high probability that the additional tax would have been paid. (iii) Since the Plaintiff was actually determined specifically by notifying ParkB of each of the instant transfer income tax of this case, the total claims of each of the instant transfer income tax of this case against ParkB by the Plaintiff becomes the obligee's obligee's obligee's obligee's creditor's creditor's creditor's creditor's creditor's claim

C) As to this, the Defendant asserts that the disposition of imposition of each transfer income tax of this case is unlawful since the Plaintiff’s disposal of each of the instant transfer income tax without making an on-site investigation and on-site investigation properly is inappropriate.

In light of the above, even if there is an unlawful ground for revocation of a taxation disposition, unless the taxation disposition is deemed to be null and void as a matter of course, the administrative disposition is valid until it is lawfully revoked by the fairness and executory power of the administrative act (see, e.g., Supreme Court Decision 9Da20179, Aug. 20, 199). Thus, the validity of the taxation disposition in civil procedure cannot be denied (see, e.g., Supreme Court Decision 9Da20179, Aug. 20, 199). For the purpose of invalidation of the administrative disposition as a matter of course, it is important and apparent that the disposition is unlawful, as well as the defect is important and apparent, and the obvious defect is clearly apparent (see, e.g., Supreme Court Decision 91Da26690, Oct. 22, 191).

2) Whether to recognize a fraudulent act

A) Comprehensively taking account of the following facts: Gap evidence Nos. 3-1 through 4, Gap evidence Nos. 4, 5, Eul evidence No. 15-1, Eul evidence No. 28-1, and the whole purport of each of the statements and arguments as to the above basic facts: ① The real estate No. 1, OB equivalent to the above real estate No. 2, OO's equivalent to the above real estate No. 3, OO's equivalent to the above real estate No. 3, OO's debt No. 4, etc., and the total amount of the above real estate No. 3, O's debt No. 4, EE, and the total amount of the above real estate No. 3, O's debt No. 2, O's debt No. 2, O, and O's debt No. 2, O2, etc., at the time of the conclusion of the contract for the first sale and purchase of the real estate, and the total amount of the above O's property No. 2, etc.

In addition, the defendant asserts that ParkB had a loan claim of OB against thisG, but there is no evidence to regard the above loan claim as a property value and as a joint collateral. Thus, this part of the defendant's assertion is without merit.

Therefore, since ParkB transferred each of the instant real estate to the Defendant in excess of the debt, each of the said transfers constitutes a fraudulent act in relation to the general creditor including the Plaintiff, unless there are special circumstances.

B) On June 8, 2009, the Defendant transferred each of the instant real property to the Defendant under the pretext of division of property and consolation money. The Defendant asserts that the transfer of each of the instant real property does not exceed a reasonable degree as division of property, and thus does not constitute fraudulent act.

In light of the above, the division of property following a divorce is a system with the economic difficulty of supporting the other party in terms of the liquidation of the common property achieved through mutual cooperation between the other party during the marriage. Even if the debtor who has already been in excess of his/her obligation and transferred a certain property to his/her spouse as a payment to compensate for consolation money according to divorce, the division of property does not become the object of revocation by the creditor as a fraudulent act, unless there are special circumstances where it is deemed that such division of property is excessive beyond the considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act. However, it is not the object of revocation by the creditor as it cannot be deemed a legitimate division of property beyond the considerable degree. However, the burden of proving that it is excessive division of property beyond the considerable degree is the subject of revocation by the creditor (see, e.g., Supreme Court Decisions 200Da27084, Oct. 10, 200; 209Da3584, Mar. 25, 2006).

First of all, as to whether the transfer of each real estate of this case has the nature of division of property pursuant to the divorce, it is reasonable to conclude a donation contract with the Defendant on August 18, 2008 on the first real estate of this case, and to view that the Defendant transferred the real estate of this case to the Defendant on June 2009, the fact that the agreement was reached on June 2, 2009, and that: (a) comprehensively taking account of the respective entries and arguments in the evidence Nos. 10, 15, 18, and 27; and (b) ParkBB invested O in the business of the O pre-sale type without the Defendant around 2008, but the above investment was failed; (c) it was reasonable to deem that the Defendant transferred the real estate of this case to the Defendant on August 18, 2008, and that the agreement was made on the transfer of the real estate of this case to the Defendant on June 28, 2009, and that the agreement was made between the Defendant and the Defendant on the transfer of property division of this case.

Then, as to whether the transfer of each real estate of this case exceeds a reasonable level as division of property, it is difficult to view the following circumstances, i.e., the acquisition of the real estate of this case and the above O-2 and 7 parcels of land during the marital life with the defendant. The defendant seems to have contributed to the formation of joint property. ② The transfer of the real estate of this case to OB and the defendant was caused to divorce. ③ The value of the real estate of this case to O-2 at the time of the transfer of the real estate of this case to O-3O-O's real estate of this case was transferred to O-O's real estate of this case + the actual amount of the real estate of this case to 2OO's real estate of this case to O-O's real estate of this case + the amount of the real estate of this case to 3OO's real estate of this case to be transferred to 200 or 200's real estate of this case to O-O's real estate of this case.

3) Conclusion

Therefore, the plaintiff's above assertion that the transfer of each real estate of this case is a fraudulent act is without merit.

3. Judgment on the counterclaim

A. The defendant's assertion

Although ParkB knew that the transfer of each of the instant real estate to the Defendant does not constitute a fraudulent act, the Plaintiff filed an application for injunction against disposal of real estate and provisional seizure on the instant real estate under the right to claim restitution due to the revocation of fraudulent act. The Plaintiff filed the instant lawsuit claiming revocation of fraudulent act and restitution of the original status of each of the instant real estate, and the Defendant was liable to pay interest on the obligations of loans to EE from May 6, 2013 to the cancellation of provisional disposition and provisional seizure. ② The Plaintiff spent OOOB to assist the Defendant in receiving attorney’s assistance; ③ the Defendant used OOB for transportation expenses ④ the Defendant incurred emotional distress in the course of requesting assistance from the former husband ParkB; ④ the Defendant used OOOOB as transportation expenses; ④ the Defendant incurred losses due to the failure to work at the restaurant operated by the Defendant; ② the amount of damages to the Defendant including OO and the damages to the Defendant, ③ the amount of damages to be paid to the Defendant from 2013 to 74.7.74.200.

B. Determination

1) The parties to a legal dispute seek a final settlement of the dispute to the court is an important issue related to the foundation of the rule of law, so the right to be tried shall be respected to the maximum extent possible. In determining whether the act of filing a lawsuit constitutes a tort, careful consideration should be given to the extent that it does not result in unreasonably restricting the use of the trial system. Therefore, the filing of a lawsuit in order to resolve a legal dispute is a legitimate act in principle, and it cannot be readily concluded that the lawsuit was a tort just because the lawsuit was finalized upon the judgment of the losing party. On the other hand, from the perspective of the person who has filed the lawsuit, there may be cases where it is illegal to bring a lawsuit that causes unfair burden to the responding party, such as forcing the responding party to file a lawsuit and paying attorney's fees, and thus, the filing of a lawsuit against the other party to the lawsuit becomes an unlawful act is not based on factual rights or legal relations alleged by the complaining party in the lawsuit in question, and if it is clearly recognized that the lawsuit was a tort, 1013 others.

In addition, where preservative measures such as provisional seizure or provisional disposition are executed intentionally or by negligence, the execution of preservative measures is deemed to constitute a tort. Since preservative measures such as provisional seizure or provisional disposition are entrusted to the principal lawsuit, and it is merely liable to creditors by vindication as to whether or not the right to be preserved exists, if the execution creditor has lost in the principal lawsuit after such execution, it shall not be presumed that the execution creditor had intention or negligence on the part of the debtor, but if there is special circumstance, the presumption of negligence may be reversed (see, e.g., Supreme Court Decision 2009Da82046, 82053, Feb. 11, 2010). In light of the above legal principles, it is difficult to view that the plaintiff's act of transfer of real estate was not yet determined in the principal lawsuit of this case as to the above case, and that the transfer of real estate was not determined differently from the plaintiff's transfer of each of the real estate in this case's possession of real estate at the time of the transfer of each of the real estate in this case.

Therefore, the defendant's above assertion, which is premised on the plaintiff's intentional negligence, is without merit.

4. Conclusion

Therefore, all of the plaintiff's principal claim and the defendant's counterclaim are dismissed as it is without merit. It is so decided as per Disposition.