채무초과의 상태에서 매매계약을 체결한 것은 사해행위에 해당함[국승]
Busan District Court 201 Gohap21252 (O4, 2012)
It constitutes a fraudulent act if the sales contract was entered into in excess of obligations.
It is reasonable to deem that the Defendant could have sufficiently predicted the circumstances that taxes may be imposed on CC at the time of the instant promise to sell and purchase the instant goods, and thus constitutes a fraudulent act.
2012Na5039 Revocation of Fraudulent Act
Korea
The AA
Busan District Court Decision 2011Gahap21252 Decided June 14, 2012
March 21, 2013
April 11, 2013
1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
○ Claim: The purchase and sale reservation and sales contract concluded on November 23, 2010 with respect to the real estate listed in the separate sheet between the Defendant and JungCC shall be revoked within the limit of KRW 000 per annum. The Defendant shall pay to the Plaintiff the amount calculated by the ratio of KRW 00 and 5% per annum from the day following the day this decision became final and conclusive to the day of the full payment.
○ purport of appeal: Revocation of judgment of the first instance court. The plaintiff's claim is dismissed.
1. Quotation of judgment of the first instance;
The reasoning for this Court's explanation is as follows, except for addition and modification of corresponding parts of the judgment of the first instance as well as addition and modification thereof, and they are cited in accordance with Article 420 of the Civil Procedure Act.
2. The addition;
The first instance court's decision No. 7 stated that "the first instance court's decision "the first instance court's decision was correct" (4) Busan Jin-si requested the defendant to submit transaction documents, etc. at that time to the defendant, who did not contact with the regularCC at that time. The defendant did not keep transaction documents, etc., but BB and gold-water development did not register as a telephone soliciting business for the sale and purchase of real estate and operated business by employing the telepater, and paid business allowances for the sale and purchase of real estate to the telepater."
3. The modified part.
The five to six parts of the judgment of the first instance court are as follows.
“Judgment on the Defendant’s argument”
(1) The Defendant: (a) had been solicited to invest in the instant real estate from CC; (b) had 0.0 won for each of the instant real estate purchased; (c) had 100 won for each of the instant real estate purchased; (d) had 0.0 won for each of the instant real estate purchased and sold on November 17, 209; and (e) had 00 won for each of the instant real estate purchased and sold on October 7, 2009, under the name of 10, for which 00 won was 10,000 won for each of the instant real estate purchased and sold to 20.0 won for each of the instant real estate; (b) had 0,000 won for each of the instant real estate purchased and sold to 10,000 won for 20,000 won for each of the instant real estate; and (e) had 10,000 won for each of the instant real estate purchased and sold on February 18, 2010.
(2) The defendant, as well as the tax disposition against Jeong-CC is contrary to the principle of substantial taxation as prescribed by the Framework Act on National Taxes, and is null and void due to its significant and obvious violation of laws and regulations, and the tax claim of this case was not established, and therefore, it is alleged that there is no preserved claim. Therefore, the above assertion by the defendant is without merit, since the tax disposition of this case cannot be deemed null and void as a matter of course, and there is no other evidence to acknowledge it.
(3) The Defendant asserts to the effect that, through a tax specialist, the Defendant had faithfully reported the tax, and that the instant reservation was made on November 23, 2010; the date of commencement of the tax investigation was made on December 1, 2010; and that the date of receipt of additional notice of tax payment was around February 201, the date of receipt of the instant notice of tax payment was not only presumed to have existed at the time of the instant reservation to purchase and sell, but it was not possible for the Defendant to predict the existence of the omitted tax amount at the time of the instant promise to purchase and sell, and that the Defendant did not know that the instant reservation to purchase and sell and the sales contract would constitute a fraudulent act detrimental to creditors including the Plaintiff. Therefore, the facts recognized as well as the entire purport of the pleadings, and that the Busan JV did not have any other evidence to support the Defendant’s submission of the global income tax investigation to the Defendant on September 28, 2010, and that it did not have any other reason to view that the Defendant had any other evidence related to the global income tax investigation to the Plaintiff’s sales and sales contract.
4. Conclusion
If so, the plaintiff's claim against the defendant is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.