사해행위에 해당하는 지 여부[국승]
Whether it constitutes a fraudulent act
If a debtor has completed the registration of ownership transfer by providing real estate, which is the only property of the debtor, to a certain creditor as payment in kind, such disposal constitutes a fraudulent act.
Article 30 of the National Tax Collection Act Revocation of Fraudulent Act
1. The purchase and sale reservation made between the defendant and the ○○○ on June 24, 2004 and the purchase and sale contract made on November 30, 2004, respectively, shall be revoked.
2. On June 28, 2004, ○○ District Court ○○○○ registry office with respect to the above real estate, the Defendant shall perform the provisional registration of the right to claim the transfer of ownership completed by ○○○○○○○○○○○○ on June 28, 200, and each procedure for the cancellation of the ownership transfer registration completed by ○○○○ on November 30,
3. The costs of lawsuit shall be borne by the defendant.
The same shall apply to the order.
1. Basic facts
The following facts are not disputed between the parties, or can be recognized in full view of the overall purport of the pleadings in each entry in Gap evidence 1-1-2, Gap evidence 2, 4, 6, 7, and 8, Gap evidence 1-2, Gap evidence 3-9-1, and Eul evidence 2.
A. From January 1, 2002 to August 31, 2004, ○○○○○○○○○○○○○○○○○ ○○○ ○○ ○○ ○○ ○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ”in the ○○ ○○ ○ ○ ○ ○ ○ ○ ○ 2,00. On the ground that the local confirmation was conducted between June 14, 2004 and June 30, 204, ○○ 205, 206, 30, 205, 30, 204, 205, 205, 30, 204, 205, 306, 201, 204, 306, 204, 306, 205, 2006, 2036, 2016.
B. Meanwhile, on June 28, 2004, on the other hand, the head of ○○ Tax Office completed the registration of the right to claim ownership transfer by ○○ District Court’s receipt of ○○ registry office on the ground of the pre-sale agreement on June 24, 2004, ○○○○○ as the title holder with respect to the real estate listed in the separate sheet (the real estate of this case), which is the only property of the head of ○○ Tax Office, under the on-site verification process. On November 30, 2004, the registration of the right to claim ownership transfer was omitted by completing the ownership transfer registration (the principal registration) on the same day under the receipt of the same registry office on the same date on November 30, 204.
2. Judgment on the plaintiff's claim
According to the above facts, at the time of entering into the contract for the purchase and sale of this case, the plaintiff had a tax claim of KRW 83,962,440 against ○○○ at the time of entering into the contract for the purchase and sale of this case. The disposal of this case's real estate to the defendant in excess of the debt constitutes a fraudulent act detrimental to the plaintiff, which is the creditor, as the sole act of disposing the creditor's joint collateral, and barring any special circumstances, it is presumed that the defendant was aware that the contract for the purchase and sale of this case's promise and the sale of this case's real estate would lead to the creditor's
Therefore, the pre-sale agreement between the defendant and ○○○ on June 24, 2004 and the pre-sale agreement on November 30, 2004, which was concluded between the defendant and the pre-sale agreement on the real estate listed in the separate sheet, should be revoked as a fraudulent act. The restoration of the original state to ○○○○ is obliged to perform the procedure for the provisional registration of the right to claim ownership transfer transfer registration completed on June 28, 2004 by the ○○ District Court ○○○ Registry on June 28, 2004, and each procedure for the cancellation of ownership transfer registration completed on November 30, 2004.
3. Judgment on the defendant's assertion
On the other hand, the defendant was making an investment of KRW 120 million in the same trade name as ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on January 9, 199, and upon closing the business, the defendant agreed to have the right to operate the instant real estate transferred to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on November 13, 196. After completing the provisional registration on the instant real estate at its request, the defendant’s and claimed that the instant real estate was paid KRW 15 billion.
On the other hand, even if the Defendant’s claim against ○○○ was incurred prior to the establishment of the Plaintiff’s instant tax claim as claimed by the Defendant, if the obligor provided real estate to a certain obligee, which is the only property of the obligor, as payment in substitutes, and completed the registration of ownership transfer, if the obligor provided the real estate to a certain obligee, which is the only property of the obligee, as payment in substitutes, the obligee obtains satisfaction of the claim prior to other creditors, while the joint collateral has decreased within the scope of the joint collateral, and thus, the obligee is placed in a more unfavorable position than the previous obligee’s interest. Thus, if the ○○○○, the obligor, was in excess of the insolvency or liability by disposing of the only real estate as payment in substitutes to the Defendant, such disposal act is deemed a
3. Conclusion
Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.