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(영문) 대전지방법원 천안지원 2008. 06. 20. 선고 2007가합4670 판결

국세체납자가 매매예약을 원인으로 하여 피고에게 이전등기를 한 행위가 사해행위에 해당하는지 여부[국승]

Title

Whether the act of a delinquent taxpayer to transfer registration to the defendant on the ground of a pre-sale agreement constitutes a fraudulent act

Summary

A provisional registration and each registration of transfer based on a pre-sale agreement made by a delinquent taxpayer falls under a pre-sale agreement and invalid, so the defendant is liable to implement the procedures for ownership transfer registration based on the restoration of real name with respect to the real estate in this case

Related statutes

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

Text

1. The defendant shall implement the procedure for the registration of ownership transfer for the restoration of real estate stated in the attached list to the non-party Jeon Soo-○○○ (***16-10******: ○○○-gu ○○○○○-dong, 18 Simnatel A Dong 751) with respect to the real estate listed in the attached list.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

In electively, an order of Paragraph (1) and Paragraph (1) or between Nonparty 1 and Nonparty 1 and Nonparty 2, on August 8, 2006, the purchase and sale reservation entered into on August 8, 2006, shall be revoked within the limit of KRW 346,025,530, and the Defendant shall pay to the Plaintiff 346,025,530 and interest calculated at the rate of KRW 5% per annum from the day following the day this decision became final and conclusive to

Reasons

1. Facts of recognition;

A. Status of the party concerned and existence of preserved claims

The defendant is the representative director of ○○ Construction Co., Ltd. (hereinafter referred to as ○○ Construction”) in charge of the construction of ○○○○○○○○○○○ 720, 720, and the defendant's living ○○○ ○○ is a person who operates ○○○ ○○ ○○ ○○ ○○ ○○ in charge of the above ○○○○ ○○○ ○○ ○○ ○○ ○○ ○ ○○ ○○, who is in arrears with national taxes of KRW 346

(b) A provisional registration made in the name of ○○○ and the details thereof;

(1) On August 8, 2006, ○○ concluded a pre-sale promise to sell the real estate listed in the separate sheet on its ownership (hereinafter “instant real estate”) to Park○○○ (hereinafter “instant pre-sale promise”) and completed the provisional registration of the co-owners’ right to claim the transfer of all co-owners’ share on August 8, 2006, which was received on August 8, 2006 at Park○○○○○, based on the pre-sale promise.

(2) The provisional registration of the above ○○○○’s name was completed by demanding ○○○ to temporarily complete the provisional registration of the name of ○○○, which had been well known prior to ten years, in order to avoid compulsory execution, such as provisional seizure from creditors, such as construction business operators of ○○ Development’s subcontracting, and ○○○ was completed by allowing ○○○ to do so.

(c) Registration of transfer under this title and the name of the defendant, and the reason therefor;

(1) The transfer registration of the right to claim transfer of ownership (No. 80697) was completed on August 29, 2006 for the instant real estate on the ground of transfer on August 29, 2006. Moreover, on the ground of transfer on December 26, 2006, the transfer registration of the right to claim transfer of ownership (No. 128147), which was received on December 28, 2006, was completed on December 26, 2006, and the transfer registration of the right to claim transfer of ownership (No. 128148), which was received by the Defendant, was completed on December 26, 2006.

(2) As creditors such as ○○ Construction Business Operator’s subcontract for ○○ Development continued to demand the payment of construction cost, the above registration of the transfer of the real estate of this case was accepted by the former ○○○○○ in excess of ○○○○ who was designated by the former ○○ Construction Business Operator (the Defendant for the representative director), and the right to the real estate of this case was completed upon the agreement to transfer it again to the Defendant, and the Defendant (○○ Construction) bears all the expenses, such as the cost of establishing the right

(d) Establishment of a third party's right to collateral security;

Meanwhile, the Defendant offered the instant real property to Han○○○ as collateral after acquiring the instant real property as above, and rendered the instant real property to the Han○○○○ on February 9, 2007 by setting up a collateral of KRW 53 million as the maximum debt amount, No. 15451, supra.

Facts that there is no dispute with recognition, Gap 1 through 8 (including each number), the purport of the whole pleadings.

2. Determination

A. According to the above facts, in order to avoid compulsory execution, such as provisional seizure from creditors including construction business operators, etc. of ○○○ who had been well aware of prior to ten years prior to the pre-sale, the pre-sale agreement of this case was null and void as it was made by means of false indication in prior agreement with ○○ and ○○○○○○○. Furthermore, in light of the above relations between ○○○○ and the defendant and the circumstances leading up to the completion of each registration, etc., it is reasonable to deem that the Defendant was aware that the pre-sale agreement was concluded on the pre-sale agreement between ○○○ and ○○○○○○○○, a representative director of ○○○○○○ Construction, a contractor of ○○○○○○○○ Construction, which was operating and implementing the pre-sale development, and completed each of the above registration under the name of ○○○○○ and ○○○○○. Therefore, the Defendant also constitutes a pre-sale agreement with the Defendant and thus, the pre-sale agreement with the Defendant is null and void.

B. Therefore, the provisional registration under the name of ○○○ and each registration of transfer under the name of the Defendant should be cancelled as a registration invalidation. However, inasmuch as the right to collateral security under the name of ○○○ and each registration under the name of the Defendant is established after the false representation of the above conspiracy, the Plaintiff is seeking the implementation of the procedure for the registration of transfer of ownership instead of seeking the cancellation of each of the above registrations on behalf of ○○○, the title holder, who is the title holder, and is merely the Defendant, who is the title holder, of the above registration, in lieu of seeking the cancellation of each of the above registrations, on behalf of ○○, who is the title holder. Therefore, the Defendant is obligated to perform the procedure for the registration of transfer of ownership based on the restoration of the title holder’s true title (the Plaintiff is claiming the above and selective fraudulent act, but as long as the claim for the registration of transfer of ownership based on the restoration of one of

3. Conclusion

Plaintiff

cite a claim

Table 3

○○○○○ 720 ○○○○

(Indication of Section for Exclusive Use)

Level 6 601

Structural reinforced concrete structure

Area 405.04 square meters

(Indication of Site Right)

○○○○-dong 720 square meters of land 715.1 square meters of land

Ownership of the kinds of site ownership

The ratio of a site ownership shall be 90.78/10 of the end of 90.78.