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(영문) 수원지방법원 안산지원 2006. 11. 08. 선고 2005가단41481 판결

사해행위 취소 해당 여부[국패]

Title

Whether a fraudulent act constitutes revocation

Summary

Considering the total amount of the claim for consolation money, etc., it is difficult to see that the building is excessively donated due to property division, etc. according to divorce, so the donation contract cannot be subject to revocation of creditor as fraudulent act.

Related statutes

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

Text

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

Purport of claim

The agreement on the donation of September 23, 200 on the real estate stated in the separate sheet between the Defendant and the Gangwon Line shall be revoked within the scope of KRW 12,913,600. The Defendant shall pay to the Plaintiff the amount calculated by the rate of KRW 12,913,600 per annum from the day following the day when the judgment of this case became final and conclusive to the day of full payment.

Reasons

1. Basic facts

The following facts may be acknowledged by comprehensively considering the purport of the entire pleadings in the descriptions of evidence Nos. 1-1, 2, 2, 2, 3, 4, and 6 of the evidence No. 1-1, and there is no counter-proof.

A. The Defendant’s wife, while running an entertainment tavern under the trade name of “○○”, did not pay KRW 11,419,920 of the Special Consumption Tax for Do (the date on which the liability for tax payment was established: January 31, 2002; August 28, 2003); and KRW 1,493,680 of the business income tax for 2003 (the date on which the liability for tax payment was established: June 30, 2003; October 23, 2003).

B. On September 30, 2003, the Hanwon District Court rendered a registration of ownership transfer (hereinafter referred to as the “registration of transfer of this case”) under the receipt of No. 97191 on September 23, 2003 with respect to the building registered as the owner of Hanwon District Court (hereinafter referred to as the “the building of this case”) prior to the filing of the above report of divorce, on September 23, 2003, on the ground of the donation made by the defendant on September 23, 2003.

2. The assertion and judgment

A. The parties' assertion

(1) The plaintiff filed a transfer registration of ownership of the building of this case, which is the sole property of the plaintiff, with the knowledge that the building of this case would damage the plaintiff who is the creditor when the plaintiff was registered to transfer the building of this case under the condition that he was liable for tax liability of KRW 12,913,600 in total against the plaintiff. This is a fraudulent act against the plaintiff, and even if the ○○ line registered the transfer of this case as a division of property following a divorce with the defendant, the market price of the building of this case is KRW 12,00 million at the time of the fraudulent act, and the total amount of the secured debt of the building of this case is about KRW 45,00,000,000, considering that the donation to the defendant of the above ○○ line is excessive benefits. On the other hand, since the establishment registration of new bank, which was established on the building of this case after the above donation, was cancelled, it shall be revoked within the limit of the value of the object which was secured by the above mortgage and shall be restored to 130.

(2) As to this, the Defendant asserts that the instant building was actually acquired by the Defendant’s funds, but it was merely registered in the name of the Defendant, which was the wife, and there was economic difficulties due to the suspension of the business due to the Defendant’s health deterioration, and that the Gangwon Line’s operation of the Defendant’s entertainment business, which led to a confusion between the Defendant and the Gangwon Line. As such, the Gangwon Line demanded the Defendant to pay consolation money in KRW 10 million to the Defendant, and the Defendant borrowed KRW 50 million from the agricultural cooperative as security of the instant building from the agricultural cooperative to cancel the registration of the establishment of a neighboring establishment in the name of the Gangwon Line in the name of the Defendant, which was established on the instant building, and transferred the instant building in the name of the Defendant while paying the said KRW 10 million to the Gangwon Line. Accordingly, the Defendant and the Gangwon Line did not constitute a fraudulent act.

B. Determination

(1) In full view of the statements in Gap's evidence Nos. 2, 4, 5, 6, and 7, the market price appraisal result of the appraiser Lee, and the fact-finding result with respect to the director of the branch office of the new bank of this court, and the whole purport of the pleadings as to the building of this case as to the building of this case as of April 27, 2001, the building of this case was registered with the establishment registration of a neighboring mortgage as of June 14, 2002, and with the National Agricultural Cooperative Federation, National Agricultural Cooperative Federation of Korea, the debtor, the debtor, the maximum debt amount of 60 million won, and the maximum debt amount of 6 million won as of October 28, 2003, and the establishment registration of a new mortgage of this case was completed with a loan of 50 million won to the defendant, and with the loan of 48 million won as the only maximum debt amount of the National Agricultural Cooperative Federation, the debtor, the maximum debt amount of 60 million won as at the time of this case was completed.

(2) In light of the above facts, it is reasonable to view that the strong ○○ Line donated the instant building to the Defendant and completed the instant transfer registration as the division of property following the divorce. Although the division of property following the divorce is the liquidation of the joint property formed through mutual cooperation between the parties during the marriage, and the support for the other party having economic difficulties, it is not possible to divide the property, including the consolation money and child support expenses for the emotional distress incurred by the divorce due to the spouse’s negligence in the division of property. Even if the division of property according to the divorce is reduced by transferring any property through the division of property pursuant to the division of property pursuant to the divorceb, such division of property is not subject to revocation of fraudulent act unless there are special circumstances deemed reasonable in light of the purport of Article 839-2(2) of the Civil Act (see, e.g., Supreme Court Decision 200Da9868, Jul. 28, 200).

Therefore, in light of the purport of the argument as a whole, in light of the health zone, Eul evidence Nos. 2, Eul evidence Nos. 3, 4-1, 2, and 3 as a whole, the defendant agreed to divorce at the end of the pleadings due to the following problems: the defendant's operation of the river-line entertainment tavern at night. Accordingly, the defendant and the river-line agreed to divorce at the end of September 30, 2003. The defendant and the river-line agreed to divorce as of September 30, 200. The defendant and the river-line decided to donate the building of this case to the defendant and transfer the registration of this case. The defendant decided to raise two children, and it is difficult to recognize that the defendant married with the defendant and reported to the defendant on January 7, 2005, and that the defendant made a registration of the establishment of a mortgage on the building of this case with the maximum claim amount of 60 million won and the defendant's right to claim a property division at the maximum amount of 1 million won and 300 million won.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.