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red_flag_2(영문) 수원지방법원 성남지원 2012. 05. 09. 선고 2011가합10996 판결

증여로 볼만한 별다른 증거가 없으므로 증여로 전제한 처분청의 청구는 이유없음[일부패소]

Title

There is no other evidence to regard it as a gift, and the claim of the agency based on the premise of the gift is without merit.

Summary

Even if it is a father-and-child relationship, the above large amount of money is provided without compensation, and there is no other evidence to recognize it as a donation, and the claim of the agency based on the premise that it constitutes a gift is without merit.

Cases

2011 Gohap 10996 Revocation of Fraudulent Act

Plaintiff

Korea

Defendant

KimA

Conclusion of Pleadings

April 18, 2012

Imposition of Judgment

May 9, 2012

Text

1. A. (a) The agreement between KimB and Defendant HeCC on the donation of KRW 000,000 entered into on June 16, 2010, and the agreement on the donation of KRW 000,000 entered into on June 18, 2010 shall be revoked, respectively.

B. Defendant LCC shall pay to the Plaintiff 00 won and 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

2. The plaintiff's claim against the defendant KimA is all dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and Defendant KimA shall be borne by the Plaintiff, and the part arising between the Plaintiff and Defendant HuCC shall be borne by Defendant HuCC.

Purport of claim

The contract for donation of KRW 000 between the order 1 and the defendant KimB and the defendant KimA on June 18, 2010 shall be revoked, and the defendant KimA shall pay to the plaintiff 00 won and the amount calculated by the rate of KRW 5% per annum from the day following the day this decision became final and conclusive to the day of complete payment.

Reasons

1. Basic facts

The following facts shall be deemed to have been acknowledged by comprehensively considering the overall purport of the pleadings in each entry in Gap evidence Nos. 1 through 10 (including each natural disaster), and the plaintiff's assertion made between the plaintiff and defendant JCC is deemed to have been led to confession because the defendant OrCC does not clearly dispute the plaintiff's assertion.

A. Tax claims against the plaintiff KimB

The plaintiff has three tax claims against KimB, each of which comes into existence on the date when each tax claim comes into existence, the due date for payment, and the amount of claims as of July 201 are as follows.

B. Money paid by KimB to the Defendants

1) On June 18, 2010, Defendant KimB, his father, concluded a sales contract to sell KRW 24,000 of the shares of GG alone Holdings to the company, the representative director of which was the company, for KRW 000,000, and on the same day, he received the purchase price from GG Holdings, and deposited KRW 00,000, out of which was deposited into the account of Defendant KimA.

2) Around June 16, 2010, KimB entered into a trade agreement with the Hah Chang-gun, Gangwon-gun, Gangwon-do, an OOOOOO No. 000 on the price of KRW 000 on the OOO No. 00 on the 16th of June 2010. KimB was deposited KRW 00 on June 16, 2010, with KRW 13,500,000 on the above purchase price, and deposited KRW 13,50,000 on the account of the Defendant HunCC, the spouse. Each of the said money was donated by KimB to Huk-gun.

C. The financial status of KimB

When KimB pays the above money to the Defendants, the financial status of KimB is as follows.

2. Determination as to the claim against Defendant HeCC

A. Formation of preserved claims

Article 1, and Article 3, the date of notification of the principal tax liability in the portion of the three tax claims is 0.6.6.6. The fact that the date of notification of the principal tax liability in the portion of the three tax claims is 1.6.6.6.6.66. The fact that the Plaintiff’s assertion is not clearly disputed, and each claim is considered to be preserved for the cancellation of each gift contract. In addition, even if it is required that the claim protected by the obligee would be, in principle, done before and after the fraudulent act, there is a high probability that the claim would be established in the near future, and that there is a high probability that the claim would be established in the near future, 20.6.6.6.1 Tax claims are 0.6.6.6.6.1 Tax claims are established in each of the above legal relations, and those are likely to be established in the near future, 201.6.3.6.6.1 Tax claims are established in each of these legal relations.

(b) The debtor's fraudulent act;

The fact that KimB donated money to Defendant HuCC as above was omitted in excess of the obligation is deemed to have been led to the confession by Defendant HuCC on the Plaintiff’s assertion, not clearly disputing the Plaintiff’s assertion. If the debtor donated his own property to another person under excess of the obligation, such act constitutes a fraudulent act, barring any special circumstances, and the donation of each of the above money to Defendant HuCC by KimB constitutes a fraudulent act.

(c) Presumption of the debtor's intent to commit harm and beneficiary's bad faith;

The fact that KimB was aware that the donation to Defendant HeCC would result in the reduction of ordinary creditors' joint security due to the grant of the donation to Defendant HeCC is deemed to have led to a confession by Defendant HeCC because it was not clearly disputed against the Plaintiff’s assertion. As long as the intention of the damage by KimB, the debtor, KimB, is recognized, the bad faith of Defendant HeCC, a beneficiary, is presumed.

(d) Revocation of fraudulent act and reinstatement;

Therefore, the contract of donation of KRW 000, which was concluded on June 16, 2010 between KimB and Defendant HeCC, and the contract of donation of KRW 000,000, which was concluded on June 16, 2010, constitutes a fraudulent act, and each revocation is revoked. The fact that each of the above money, which was deposited into the account of Defendant HeCC, was consumed, is deemed to have been led to confession because the Plaintiff’s assertion is not clearly disputed. Since it is impossible to recover from the original return method following the revocation of a fraudulent act with respect to each of the above money, it is impossible to recover from the original return method due to the fraudulent act, and as compensation, Defendant HeCC is obliged to pay the Plaintiff a delay compensation calculated at the rate of KRW 00 and 5% per annum as stipulated in the Civil Act from the day following the date of this judgment to the day

3. Determination as to the claim against Defendant KimA

A. The parties' assertion

The plaintiff, and KimB, on June 18, 2010, asserted that the act of payment of KRW 000 to the defendant KimA constitutes a fraudulent act as a gift act. In this regard, the defendant KimA, and the defendant KimB on August 22, 2008, lent KRW 100,000,000 to the KimB, and the above loan was not received, but the payment was received from the defendant KimB on June 18, 2010, and the payment was not constituted a fraudulent act.

B. Determination

If a debtor donated his own property to another person under excess of his obligation, such act would constitute a fraudulent act unless there are special circumstances. However, it is difficult for the creditor to claim that the above act would constitute a fraudulent act, and that the debtor would result in a decrease in the joint security of other creditors by paying out his debts to a specific creditor under excess of his obligation, and that the debtor would not constitute, in principle, a fraudulent act unless the debtor in collusion with some other creditors and made payment with intent to impair other creditors (see, e.g., Supreme Court Decision 2005Da62167, Jun. 15, 2006), and that the creditor seeking cancellation of the fraudulent act would have asserted that it was a gift to the beneficiary of the debtor, and that the beneficiary would have received it as a repayment of the existing obligation, and that it would be difficult for the creditor to claim that the above act would constitute a fraudulent act, and that it would constitute 00 or 800 evidence to prove that the above act constitutes a fraudulent act (see, e.g., Supreme Court Decision 2000Da160.).

4. Conclusion

Thus, the plaintiff's claim against the defendant HuCC is justified, and all of them are accepted, and the plaintiff's claim against the defendant HuA is without merit, and all of them are dismissed.