양도소득세를 내지 않을 것이라고 예상할 수 있었다고 볼 만한 사정이 없어 사행행위에 해당하지 않음[국패]
Busan District Court 2014Gahap52011
There is no reason to deem that the transfer income tax was likely to not paid or that it was not a speculative act.
In light of the above, there is no evidence to acknowledge that the act of delivery constitutes a fraudulent act due to the collusion of the principal and interest, and there is no evidence to acknowledge that the act of delivery constitutes a fraudulent act, in view of the fact that there is no circumstance to deem that it was possible to anticipate that the act of delivery would not pay capital gains tax.
Article 30 of the National Tax Collection Act Revocation
Busan High Court 2015Na52879
Korea
Park ○
Busan District Court Decision 2014Gahap52011 Decided May 20, 2015
November 11, 2015
December 16, 2015
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance court shall be revoked. On October 5, 201, 201, ParkA’s judgment of the court of first instance is revoked. The defendant shall pay to the plaintiff 5% interest per annum from the day following the day on which this judgment becomes final and conclusive to the day of complete payment (the plaintiff corrected its purport of claim in the trial) 】 (the plaintiff corrected its purport of claim in the trial) 】 one cashier’s check issued by the bank (the check number: △△△△△△△△△△△△△△△△△△△,00,000) and one cashier’s check issued by the bank (the check number).
1) The plaintiff asserts that the act of delivering the above check constitutes a gift or repayment. The plaintiff asserts that the creditor's act of paying the money constitutes a fraudulent act. However, the plaintiff's assertion that it is different in relation to the legal evaluation of the act of paying the money as a gift or repayment is a different claim about the method of attack with the right to revoke the fraudulent act, and it cannot be deemed that the subject matter of lawsuit or the claim itself is different (see, e.g., Supreme Court Decision 2004Da10985, 1092, Mar. 25, 2005). Thus, the plaintiff's assertion about the above donation or repayment is not distinguished from a separate claim.
2) The Plaintiff stated “00,000,010 won” in the written complaint, but appears to be a clerical error in the amount of KRW 000,000.
1. Quotation of judgment of the first instance;
The reasoning for this Court's explanation concerning this case is as follows, and this Court's reasoning is the same as the reasoning for the judgment of the first instance except for those used, deleted or added as follows, and it is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.
The second page 11 of the judgment of the first instance court was concluded, and the following (hereinafter referred to as the "transfer contract of this case") was added to the transfer income tax of this case, the third page 5 of the transfer income tax of this case, and hereinafter referred to as "the transfer income tax of this case", "YB of the second page 11 of the judgment of the first instance", "YCC", "Y0,000,000 won" of the 15th sentence is respectively 00,000,000 won," and "the judgment of the previous part of the judgment of the first instance court of this case of this case of this case of this case of this case of the third page 5 of the transfer income tax of this case of this case of this case."
O Part 1 to 4 of the judgment of the first instance court shall be written in accordance with the following subparagraphs:
In full view of the overall purport of the arguments in the statement Nos. 5 and 8, and on October 5, 201, which was at the time of the delivery of the instant case, the active property of Park Jong-A on October 5, 201 is as follows (It is deemed that the implementation of the instant transfer contract was completed at the time of the delivery of the instant case, and the value of each of the instant real property is not included in active property).
O Part 13 of the Decision of the first instance court is "victim caused" in Part 10 of the Decision of the first instance, and the following parts shall be added to the part "victim caused" in Articles 10 and 11.
『㉱ 이 사건 제1 내지 4 차용금에 있어 형식상 채무자가 피고로 되어 있기는 하나, 이는 위 각 차용금의 담보물이 피고 소유인 관계로 형식상 피고가 대출계약상의 채무자로 된 것으로 보일 뿐，실제 채무자는 피고의 동생인 박AA로 봄이 상당할 뿐만 아니라(앞서 본 바와 같이 위 각 차용금이 박AA에게 귀속되었고, 그 이자 역시 박AA가 부담하였다)，이 사건 각 차용금이 변제되는 과정에서 박AA가 변제할 돈을 현실적으로 피고에게 주어 피고가 금융기관에 그 대출금을 변제하는 외관을 갖추고 있기는 하나, 실질적으로는 박AA가 피고의 명의를 차용하여 금융기관으로부터 대출을 받고 그 대출금을 대출명의자인 피고를 통하여 금융기관에 변제한 것과 다름없는 점,
As above, in light of the fact that Park Jong is the lender of the first or fourth loan in this case and the above debt is repaid at his own expense, it is difficult to evaluate the repayment of the above loan as the act according to the defendant's intent.
O Attached Form attached to the judgment of the first instance court shall be deleted.
2. Conclusion
If so, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance with this conclusion is just, and the plaintiff's appeal is dismissed.