채무초과 상태인 체납자가 부동산을 증여한 행위는 사해행위이며, 체납자의 악의는 추정됨[국승]
Real estate donated by a delinquent taxpayer in excess of debt is a fraudulent act and is presumed to be bad faith of the delinquent taxpayer.
Since the act of donation of real estate by a delinquent taxpayer in excess of debt is an act detrimental to the taxation right holder, and the above donation contract is presumed to be fraudulent as long as it constitutes a fraudulent act, and the defendants were aware of the excess of the debts of the delinquent taxpayer, the donation contract is illegal.
201Gaz. 367724 Revocation of Fraudulent Act
Korea
Republic of Korea, Japan and one other
January 15, 2012
January 19, 2012
1. The gift agreement concluded on July 17, 2009 between the Defendants and KimA shall be revoked.
2. The Defendants shall comply with the procedure for registration of cancellation of ownership transfer registration that was completed on July 21, 2009 by receipt No. 111470 on the real estate stated in paragraph (1) to the Suwon District Court, Suwon District Court, and Registry of the Republic of Korea.
3. The costs of lawsuit shall be borne by the Defendants.
The same shall apply to the order.
1. Judgment on the plaintiff's claim
Each fact in the attached form of claim is without dispute between the parties or recognized by the statement in Gap evidence No. 1 through No. 6 (including the number of documentary evidence with a serial number). In full view of the above facts, the act of KimA’s donation of real estate listed in the attached list to the Defendants is an act detrimental to the plaintiff, who is a tax claim, and as long as the above donation contract constitutes a fraudulent act, it is presumed that KimA’s bad faith is presumed as the debtor, and that the Defendants were aware of the excess of the obligations of KimA.
Therefore, since the donation contract entered into on July 17, 2009 with respect to the real estate stated in the separate sheet between KimA and the Defendants is fraudulent, it is revoked, and the Defendants are obliged to implement the procedure for cancellation registration of ownership transfer registration as stated in the separate sheet No. 2 of this case to the Plaintiff.
2. Judgment on the defendants' assertion
The Defendants asserted to the effect that the need for preservation is extinguished as the lawsuit of this case is scheduled to substitute for KRW 20,257,200, which is the lawsuit of this case. However, the Plaintiff’s claim amount against KimA is KRW 452,403,860, additional dues of KRW 57,33,580, total amount of KRW 509,737,440, and the Defendants’ claim is rejected.
3. Conclusion
Therefore, the plaintiff's claim is justified, and it is so decided as per Disposition.