채권자취소권에 의하여 보호될 수 있는 채권인지 여부[국승]
Whether it is a claim that can be protected by the obligee's right of revocation
There is a high probability that there has already been any legal relations which form the basis of the establishment of the claim at the time of the fraudulent act, and that the claim is to be established in the near future, and in the near future, where the probability is realized and the claim has been created in the near future, the claim may also become the preserved claim of the obligee's right of revocation
Article 30 of the National Tax Collection Act
1. The sales contract entered into on October 18, 2006 between the defendant and Park Il-tae shall be revoked.
2. The defendant shall implement the procedure for registration of cancellation of ownership transfer registration completed on October 25, 2006 as the receipt No. 43370 with respect to the real estate stated in the attached list to the plaintiff.
3. The costs of lawsuit shall be borne by the defendant.
The same shall apply to the order.
1. Basic facts
The following facts do not conflict between the parties, or can be acknowledged in full view of the purport of the entire pleadings in the statements in Gap evidence 1-1, 2, 2-2, 3-1, 2, 5-9, and 1-5.
A. From February 23, 2004 to June 30, 2006, Park Dong-dong from Busan ○○○○-dong to June 30, 2006, an adult amusement room was operated with the trade name "○○○-dong from 242-O○-dong". The director of the Busan District Tax Office, who conducted a tax investigation on the above amusement room from January 12, 2007 to February 2, 2007, issued a notice of correction and notification of value-added tax as follows.
B. On October 18, 2006, Park Jong-tae entered into a sales contract with the Defendant on the real estate listed in the separate sheet (hereinafter “the instant sales contract”) and completed on October 25, 2006 the registration of ownership transfer in the name of the Defendant (hereinafter “the instant registration of ownership transfer”) with the Jeju District Court No. 43370 on October 25, 2006.
C. On the other hand, Park Dong-dong, Busan, ○○○○○-dong, 1450, 1451, 214, 314, 210, 314, 314, and the instant real estate (a total of KRW 10,556,09) did not have any particular property; on the other hand, it exceeded the obligation due to the Plaintiff’s tax liability as a small property.
2. Determination
(a)the existence of preserved claims;
First, as above, the plaintiff has a taxation right against Park Il-sung.
Meanwhile, even though it is required that a claim that can be protected by the obligee's right of revocation was created prior to the act that can be viewed as a fraudulent act in principle, it is highly probable that at the time of the fraudulent act had a legal relationship that is the basis of the establishment of the claim, and that the claim should be established in the near future. In the near future, it is highly probable that the claim should be established in the near future, and where the claim has been established as a result of realizing the possibility of the claim in the near future, the claim can also be the preserved claim. As can be seen in the above basic facts, although there was no claim against the Plaintiff's Park Jong-ok at the time of the sales contract of this case, it was highly probable that the liability for value-added tax, which serves as the basis of the establishment of the above claim, was already established, and that the above claim should be established in the near future, and since there was no few months thereafter, the above claim can be the preserved claim for revocation in relation to the obligee.
(b) The establishment of fraudulent acts and intent to injure them;
As seen earlier, the instant sales contract further reduces the joint collateral against the creditors by selling the instant real estate, barring any special circumstance, it constitutes an act detrimental to the Plaintiff, a creditor. Furthermore, in light of the circumstances at the time of the instant sales contract, etc., it is assumed that Park Il-dae was aware that it would thereby prejudice the general creditor, and that the Defendant’s bad faith, a beneficiary, is presumed.
C. Defendant’s assertion and judgment
The Defendant, at the time of the instant sales contract, only paid the purchase price to Park Il-hwan and purchased the land immediately because Park Il-tae had a financial situation omitted, and did not know the existence of the Plaintiff’s above tax claim against Park Il-sik at the time, and accordingly, the Defendant asserted that he is a bona fide beneficiary.
Comprehensively taking account of the overall purport of the entries and arguments in the evidence Nos. 1 and 2, and No. 6, the defendant's mother (the mother at Park Jong-dong) and the defendant-friendly relatives on April 3, 198, and purchased shares of 1902/1054 on August 4, 1990 among 10-2 square meters of 140 square meters of 10,04 square meters of 104 square meters of 104 square meters of 10,000, and completed the registration of ownership transfer on March 25, 200, the defendant purchased shares of 00 won of 200 won of 20,000 won of 20,000 won of 20,000 won of 20,000 won of 20,000 won of 30,000 won of 20,000 won of 2,000 won of 2,000.
However, in light of the fact that the defendant is the plaintiff's wife, etc., the above presumption alone is insufficient to reverse the above presumption. Therefore, the defendant's above defense is without merit.
(d) Cancellation and reinstatement;
Ultimately, the sales contract of this case should be revoked as a fraudulent act, and as a result, the defendant is obligated to implement the procedure for registration of cancellation of ownership transfer registration of this case to the plaintiff.
3. Conclusion
Therefore, the plaintiff's claim against the defendant is justified, and it is decided as per Disposition by admitting it.