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(영문) 부산지방법원 2006. 12. 19. 선고 2006가단153127 판결

사해해위라는 사실을 알았는지 여부와 사해의 의사가 있었는지 여부.[국승]

Title

Whether or not the person knew of the fact that it was a piracy, and whether the person had an intention to commit the harm.

Summary

An act of the Nonparty, who completed the registration of ownership transfer on the grounds of sale, shall be deemed to constitute an act of doing so by the Nonparty with the knowledge that it would prejudice the obligee in order to evade the Nonparty’s tax liability.

Related statutes

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

Text

1. As to real estate listed in the separate sheet:

A. The sales contract concluded between the defendant and ○○ was revoked on June 10, 2005.

B. The defendant will implement the procedure for registration of cancellation of ownership transfer registration, which was completed on June 30, 2005 by the ○○○ registry office of this court, and completed on June 30, 2005.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Indication of claims: It shall be as shown in attached Form; and

2. Judgment without holding any pleadings (Article 208 (3) 1 of the Civil Procedure Act);

Grounds of Claim

1. The relationship between Nonparty ○○ and the Defendant

Defendant ○○○○○○○○○○○○○○○○○○○○○○, and his spouse’s spouse is Nonparty ○○○○○○○○○○○ (hereinafter referred to as “non-party ○○”). Accordingly, the Defendant and the Nonparty have the honor of those who are in a deceptive relationship with the mother (see, e.g., evidence No. 4).

2. Formation of a taxation claim which is a preserved claim;

A. From March 25, 2005 to December 31, 2005, the Nonparty operated a new manufacturing business of the trade name called '○○ Industry' at ○○○○○-dong 647-5, ○○○-gu, ○○ City from March 25, 2005.

B. Although the business operator has faithfully filed a tax return in accordance with the relevant laws and regulations and voluntarily paid the relevant national tax, the non-party can only file a value-added tax return on 1. 2005 with respect to the operation of the above business and have not paid the tax amount.

C. The head of ○○○ Tax Office under the Plaintiff’s control of the Plaintiff did not pay the non-party for the non-party’s payment after filing a voluntary return of value-added tax on September 30, 2005, which was 6,145,370 as the due date for payment on September 30, 2005, but did not pay it voluntarily. The non-party’s national tax in arrears was not paid for KRW 3,150,250 as the due date for payment on October 25, 2005, and the non-party’s national tax in arrears was 10,763,90 won for two cases (see subparagraph 1 of this paragraph).

3. Fraudulent act;

A. With respect to the operation of the above business, the Nonparty is highly likely to notify the near future of the fact that the Non-Party voluntarily reported the value-added tax was not paid after January 2005.

B. On June 10, 2005, on the ground of the sales contract as of June 10, 2005 with respect to the real estate listed in the separate sheet, which is the only property owned by the non-party (hereinafter referred to as the "real estate of this case"), the non-party was insolvent by completing the registration of ownership transfer to the defendant under 0000 of the receipt number of the ○○ District Court ○○○ Registry No. 0000 (hereinafter referred to as the "certificate No. 3"), and thereby, the plaintiff was not able to obtain the satisfaction of the tax claim.

C. The high probability that the above national tax will be notified is realized in reality by notifying the national tax in this ○○○ Head of the above ○○○ Tax Office's "2." and "C," but the non-party has not paid the notified national tax until now.

D. The Nonparty’s act of transferring the ownership of the instant real estate to the Defendant, which is the only property of this case after the transfer of ownership, is not paid upon notification of national taxes to the Defendant, on the ground that it is highly probable that national taxes will be notified on the fact that the instant real estate was not paid after the voluntary declaration of the value-added tax was made after January 2005, and that the acquisitor of the said real estate was his mother, and that the domicile on the resident registration certificate was the instant real estate after the transfer of ownership, and thus, the Nonparty’s act of transferring the ownership of the instant real estate to the Defendant is not deemed as the

4. Intention and bad faith of the defendant;

At the time of transfer of the instant real estate, which is the only property owned by the Nonparty, due to sale to the Defendant under a high level of improvement in which national taxes will be notified in the near future, the Nonparty would have known that the Nonparty would have harmed the Plaintiff as the tax payer. The Defendant should be deemed to have known the Nonparty’s mother of the fact that the transfer was fraudulent act and the Nonparty’s intention of deception.

5. Whether the pertinent real estate is a well-grounded property

The head of ○○○ Tax Office, under the Plaintiff’s control, investigated the property of the Nonparty for the purpose of the disposition on default, as shown in the list of the materials on the attached property, etc. (Evidence A No. 3). The instant real estate is the only property of the Nonparty.

6. The date on which he becomes aware of a fraudulent act;

The plaintiff was issued on August 22, 2006 and became aware of the fraudulent act of this case in order to execute the disposition on default against the non-party that the real estate of this case was registered in the name of the defendant.

7. Conclusion

The Nonparty’s act of completing the registration of ownership transfer to the Defendant on the instant real estate on the grounds of sale is deemed to constitute a fraudulent act under Article 30 of the National Tax Collection Act, since it was committed with the knowledge that it would prejudice the Plaintiff, a creditor, in order to evade the Nonparty’s tax liability.

In accordance with Article 406 of the Civil Act and Article 30 of the National Tax Collection Act, the plaintiff has reached the claim as stated in the purport of the claim.