[2] In a case where the issue is whether the act of each gift, which the debtor Gap, remitted the proceeds of disposing of the real estate owned by him to the account under the name of husband Eul, constitutes a fraudulent act, the case holding that there are special circumstances to evaluate it as a single fraudulent act en bloc, including the fact that the other party to each gift was the same person as the other party to each gift, and that each gift is linked with the same real estate,

The establishment of a fraudulent act is determined as at the time of the fraudulent act. Thus, in principle, even in cases where several acts of disposal of assets have been conducted in several consecutive ways, it shall be determined depending on whether each act causes insolvency (see Supreme Court Decision 2000Da69026, Apr. 27, 2001). However, if there are special circumstances to regard the series of acts of disposal as a single act, it shall be determined as to whether each act of disposal in a single manner exists as a whole. Whether there is such special circumstance should be determined by considering whether each act of disposal is identical to the other party, time and close, whether the other party and the debtor are specially related, and the motive or opportunity for each disposition are the same (see Supreme Court Decision 2002Da23857, Sept. 24, 2002). However, even in cases where each act of disposal is conducted in connection with a series of legal processes to achieve the same purpose, it shall be evaluated as a single act as a whole, not a single act.

The court below held that the non-party, a debtor, remitted the proceeds from the disposal of real estate owned by him to the account under the name of the defendant as the husband, to the defendant, was a donation equivalent to the remittance amount, and rejected the claim for revocation of the fraudulent act on the ground that the non-party, as the debtor, separately separates the defendant from whether it has been in excess of his obligation as of the time of each remittance, and that the time of the remittance on December 30, 2008, was not in excess of his obligation.

The Plaintiff’s allegation in the grounds of appeal is the intermediate payment and remainder of KRW 100 million remitted as of December 30, 2008 and KRW 200 million remitted as of January 5, 2009, pursuant to the same disposal of real estate. Each gift act is a series of continuous disposal acts, and whether a series of acts is a single act. Thus, even if the above KRW 100 million was not yet in excess of the obligation, the part of the gift act should be included in the object of revocation of the fraudulent act.

However, according to the reasoning of the judgment below, since the Plaintiff’s preserved claim is mainly an obligation for payment of capital gains tax arising from the disposal of each of the above real estate, the disposal of each of the above real estate itself cannot be a fraudulent act. Since each act of donation by transferring the purchase price to the Defendant constitutes separate disposal act, whether it constitutes a fraudulent act is determined by comparing the tax liability as at the time of each gift act with the amount of active property remaining after the remainder. Although there are circumstances cited in the grounds of appeal, such as the other party to each gift act is identical and the same as the other party to each gift act, there are no special circumstances that comprehensively evaluate it as a single fraudulent act, such as that each gift act is related to each other. The reasoning of the court below’s rejection of the Plaintiff’s assertion in this part is appropriate, but its conclusion is

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Chang-suk (Presiding Justice)