채무자의 배우자인 피고에 대하여 한 이 사건 금원지급은 증여이며 사해행위에 해당함[국승]
Incheon District Court 201 Gohap19252 (Law No. 11, 2012)
payment of the instant money to the defendant who is the spouse of the debtor is a donation and constitutes a fraudulent act.
The monetary payment of this case against the defendant, who is the spouse of the debtor, was a gift act, and the debtor was in excess of his/her obligation at the time of paying the monetary payment, and the above monetary payment aggravated the status of excess of his/her obligation, so the debtor was aware that such an act was prejudicial to other general creditors at the time, and it is presumed that the defendant's bad faith is presumed that the act of donation constitutes a fraudulent act.
2012Na75729 Revocation of Fraudulent Act
Korea
United StatesA
Incheon District Court Decision 2011Gahap19252 Decided September 11, 2012
May 10, 2013
July 5, 2013
1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
1. Purport of claim
The contract of donation of KRW 000,000,000 between the Defendant and AA on July 9, 2007 shall be revoked. The Defendant shall pay to the Plaintiff 140,000,000 and 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of full payment.
2. Purport of appeal
The judgment of the first instance is revoked. The plaintiff's claim is dismissed.
1. Quotation of judgment of the first instance;
The court's reasoning for this case is that "00 won of transfer income tax, 000 won of transfer income tax, 000 won of non-reported additional tax, 000 won in total, and 000 won of additional tax in good faith" in the second 17th of the judgment of the court of first instance, "3rd 1st 1st 1st 2007" shall be changed to " around July 10, 2007", "00 won of transfer income tax and additional tax" in the third 11th 3th 11th 2nd 2nd 11th 2nd 5th 11th 2nd 2nd 11th 2nd 3th 200, and it shall be cited as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.
2. Additional parts
The Defendant asserts to the effect that, around July 9, 2007, the additional tax liability of this case against the Plaintiff was not known, and thus, it should not be included in AA’s ordinary property retroactively. In determining whether the obligor’s insolvency, which is the requirement to exercise the obligee’s right of revocation, the subject small property, in principle, was generated prior to the occurrence of a fraudulent act. However, there is high probability that the legal relationship, which is the basis of the establishment of the obligation, has already been established at the time of the fraudulent act, and that the obligation should be established in the near future. In fact, where the obligation was established with its feasibility in the near future, the obligation should also be included in the obligor’s ordinary property (see, e.g., Supreme Court Decision 2010Da68084, Jan. 13, 201). Accordingly, the Defendant’s assertion that the additional tax liability of this case was established in the near future, and thus, it is not probable that the additional tax of this case was established after its establishment.
3. Conclusion
Therefore, the contract of donation of KRW 000,00, which was concluded on July 9, 2007 between the defendant and AA, is revoked, and the defendant is obligated to pay the plaintiff with 5% interest per annum from the day following the day when the judgment of this case became final and conclusive to the day of complete payment. Thus, the plaintiff's claim of this case is justified, and this conclusion is just, and the defendant's appeal is dismissed as it is so decided as per Disposition.