채무초과상태의 채무자가 적극재산을 채권자 중 일부에게 양도하는 행위는 다른 채권자들에 대한 관계에서 사해행위임[국승]
The act of transferring active property to some of the creditors by the debtor in excess of the debt shall be a fraudulent act in relation to other creditors.
Unlike the case where a debtor pays his active property to some of the creditors in excess of his/her obligation, a fraudulent act is established in relation to other creditors in principle, unlike the case where a debtor pays his/her active property to a certain creditor according to the principal place of obligation.
Article 30 of the National Tax Collection Act
2013 Ghana 5176 Revocation of Fraudulent Act
Korea
NewA
September 4, 2013
September 25, 2013
1. With respect to real estate listed in the separate sheet, and
A. The sales contract concluded on April 29, 2009 between the defendant and the non-party B and the non-party B is revoked, and
B. The Defendant shall comply with the procedure for registration of cancellation of ownership transfer registration, which was completed by the Daejeon District Court of Daejeon District on April 29, 2009 as the receipt of No. 17132, the registration of ownership transfer to Nonparty B.
2. The costs of the lawsuit are assessed against the defendant.
Cheong-gu Office
The same shall apply to the order.
1. Determination as to the cause of claim
(a) The intention to commit fraudulent acts and to injure himself;
(1) ① On Nov. 30, 2008, the Plaintiff acquired the OOOOO transfer income tax claim against Nonparty B (hereinafter “instant tax claim”) on Nov. 30, 2008, and ② The BB purchased and sold real estate listed in the separate sheet (hereinafter “instant real estate”) on Apr. 29, 2009, and completed the registration of ownership transfer on Apr. 29, 2009 with the Daejeon District Court J. 17132, receipt on Apr. 29, 2009, the Plaintiff may recognize that there is no dispute between the parties, and that the entire purport of the theory changes in the evidence No. 1 through No. 3, and on the other hand, it is presumed that this act constitutes fraudulent act, barring any special circumstances, while the B bears the Plaintiff’s obligation against the Plaintiff, and that the BB’s intent to commit suicide is presumed.
(2) On this point, the defendant asserts that ① this case's real estate was transferred to the defendant by payment in lieu of payment to CC, which is the defendant's wife and his father, and this case's real estate is not considered a fraudulent act, and the defendant is a bona fide beneficiary, and ② the real estate in this case's present real estate is already established and provisionally seized, and its disposal does not constitute a fraudulent act, and thus, the plaintiff's assertion should be rejected.
(1) ① Even if this BB bears the obligation to thisCC as alleged by the Defendant, and unlike the case where the obligor, in excess of the obligation, transfers the active property to some creditors as payment in kind, into payment in kind, to other obligees, in principle, unlike the case where the obligor performs the obligation to a specific obligee (see Supreme Court Decision 2007Da2718, Sept. 30, 2010), there is no evidence to prove the fact that the BB bears the obligation to thisCC, and the beneficiary is presumed to be bad faith in a fraudulent act revocation suit, so the beneficiary is liable to prove his good faith (see Supreme Court Decision 2007Da74621, Jul. 10, 2008; 207Da74611, May 10, 2008; 2000Du499999, May 19, 209).
(b) Methods of reinstatement;
Therefore, on April 29, 2009 between the defendant and the BB on the real estate listed in the attached list, the sales contract on April 29, 2009 should be revoked as a fraudulent act, and the defendant is obligated to implement the procedure for cancellation registration of ownership transfer on the real estate listed in the attached list to the original state
3. Conclusion
Then, the plaintiff's claim of this case is justified and accepted.