체납자가 채무초과상태에서 자신의 부동산을 피고에게 증여한 것은 사해행위에 해당하고 피고의 악의는 추정됨.[국승]
It is presumed that a delinquent taxpayer's donation of his/her real estate to the defendant in excess of his/her obligation constitutes a fraudulent act.
In excess of debt, it is not sufficient to recognize that a delinquent taxpayer’s donation of his or her own daily real estate to the defendant constitutes fraudulent act and the evidence submitted by the defendant alone constitutes a bona fide act, and there is no other evidence to acknowledge
Article 406 of the Civil Act § 306. Revocation of fraudulent act and restitution to its original state
Gwangju District Court's Netcheon-2017-Ban-78893 ( October 30, 2018)
Korea
- - Other
8.04.18
2018.05.30
1. As to real estate listed in Schedule 1:
A. Revocation of a gift contract concluded on October 18, 2015 between the Defendant and the leap 00, and
B. As to the real estate stated in Attachment 2: (a) the Defendant fulfilled the procedure for registration of cancellation of ownership transfer registration that was completed by the 00 district court 00 branch 00 branch 00 registry office on April 01, 2015 as the receipt No. 3756 on the part of 00 branch 0
A. Revocation of the termination agreement concluded on October 18, 2015 between the Defendant and 00, and
B. On December 24, 2001, the Defendant followed the procedure for registration of recovery of ownership transfer registration No. 15231 of the same registry office, which was registered for cancellation as of December 24, 2001, with 00 district court 00 branch court 00 branch court 00 registry office 4040 of receipt on December 18, 201, the Defendant shall bear the Defendant’s expenses.
The same shall apply to the order of the Gu office.
1. Facts of recognition;
A. On December 11, 2014, Ma-10,00,00 Dong 180-1 (hereinafter “instant land”) was not transferred to 4 billion won, and the head of 00 tax office under the Plaintiff did not report transfer income tax. The head of 00 tax office, on December 1, 2016, notified the Defendant of the transfer income tax of KRW 822,395,290 as the due date for payment on December 31, 2016. However, Mari did not pay the said transfer income tax. At the time of the instant lawsuit, Mari did not enter into an agreement with the Defendant on December 31, 2017, the registration of ownership transfer was entered in the separate list 10,000,000,000,000 won and returned the ownership of the real estate to the Defendant on March 18, 2015, and the registration of ownership transfer was received on May 10, 2015.
[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 8 (including branch numbers, if any) and the purport of the whole pleadings
2. Determination
(a)the existence of preserved claims;
Although it is required that a claim that can be protected by obligee’s right of revocation was created prior to the commission of an act that can be viewed as a fraudulent act in principle, it is highly probable that a claim has already been established at the time of a fraudulent act, and that a claim should be established based on its existing legal relationship in the near future. In fact, where a claim has been established as a result of its realization in the near future, such claim may also become a preserved claim of obligee’s right of revocation (see, e.g., Supreme Court Decision 201Da76426, Feb. 23, 2012). If a tax liability satisfies the taxation requirements prescribed by the Act, the special act by the tax authority or the taxpayer is not necessary to establish the tax liability, and the tax obligor is naturally established without the need to recognize the fulfillment of taxation requirements (see, e.g., Supreme Court Decision 2008Da8458, May 14, 2009). In light of the legal principles as seen above, the point at which the transfer income tax claim was established shall be included in the last day of 20 days after the date of pleading.
(b) The intention to commit fraudulent acts and to injure himself;
According to the above facts of recognition, the real estate listed in the attached Table 1 is donated to the defendant in excess of his/her obligation, and the conclusion of a contract for rescission of agreement with the defendant on the real estate listed in the attached Table 2 constitutes a fraudulent act detrimental to the creditor, and the beneficiary's will of death is presumed.
Although the defendant asserts that real estate listed in the attached list was trusted in title to △△, and the actual owner is the defendant, the actual owner is not a fraudulent act, there is no evidence to acknowledge it, the defendant's assertion is without merit.
C. Sub-committee
Therefore, the Defendant and the Defendant regarding the real estate stated in the attached Table 1, and the agreement rescission agreement between the Defendant and the Mari-gu with regard to the real estate stated in the attached Table 2, should be revoked as a fraudulent act, and the Defendant accordingly has the obligation to cancel the registration of ownership transfer concerning the real estate listed in the attached Table 1, or to recover the registration of ownership transfer as to the real estate listed in the attached Table
3. Conclusion
Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.