2. The costs of appeal shall be borne by the Defendant.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

The following facts do not conflict between the parties, or may be acknowledged by comprehensively taking into account the whole purport of the pleadings as stated in Gap evidence 1-1, 2, 2-2, 5, 5, 1, 6-1, 2, 3, 7-1 through 4, 8-1, 2, 3, 9, 4-1, 4-5, 5, 5, 6-1, 7-2, 8-1, 8-2, 3, 9, 4-1 through 5:

A. On March 10, 2004, Kim Dong-dong ○○○○-1,652 square meters; on December 2, 2004, 804, Dong ○○-1, 134 square meters; ○○○-2, Dong ○○-3, Dong ○○-4 square meters; 44 square meters prior to Dong ○○○-4, Dong ○○-6, Dong ○○-7, Dong ○○-7, Dong ○○○-7, and Dong ○○○-1, 7, and two above ground gas stations were transferred to each other; on May 31, 2005, the building was not reported within the capital gains tax; on June 30, 2006, the head of Ansan District Tax Office imposed capital gains tax on the same ○○○-6, Dong ○-4, 207 square meters; on June 31, 2006.

B. On September 23, 2005, Kim ○-dong ○○○-1,262 square meters transferred to another person, and reported the transfer income tax on May 31, 2006, but did not pay it within the specified period. The head of Ansan Tax Office set the payment period on July 7, 2006 as the payment period on July 31, 2006 and imposed the transfer income tax of KRW 98,92,850 on Kim ○.

C. The Kim Jong-Un shall register the same court on the real estate in the previous part of his son Kim Jong-○, the defendant (the Gim-○ and the defendant divorcedd on September 16, 2004), and completed the registration of transfer on the real estate listed in the attached Table 1 (hereinafter referred to as the "real estate No. 1 of this case"), the registration of transfer on the ground of sale on April 27, 2006, No. 43812, which was received on March 28, 2006, and the registration of transfer on the real estate listed in the attached Table 2, which was recorded on March 28, 2006 (hereinafter referred to as the "second real estate of this case"), and the registration of transfer on the real estate of this case No. 1 of this case and the second real estate of this case, which was made on June 14, 2006, respectively, on the grounds of sale on May 20, 2006.

D. At the time the above transfer registration of ownership was completed, Kim ○ did not hold any other active property except each real estate in this case.

2. Determination

(a)the existence of preserved claims;

In light of the above, a claim that can be protected by the obligee’s right of revocation should, in principle, have arisen prior to the commission of an act that could be viewed as a fraudulent act. However, there is a high probability that at the time of the fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of a claim, and that the claim should be established in the near future in the near future, and the claim may also become a preserved claim of the obligee’s right of revocation only in cases where the claim has been established because the probability has been realized in the near future (see, e.g., Supreme Court Decision 2004Da53173, Aug. 19,

Pursuant to the above legal principles, the fact that the Health House and Kim ○ has already transferred the real estate owned by him to another person prior to the date of each sales contract of this case is as seen earlier. Accordingly, at the time of each sales contract of this case, the basic legal relationship of each of the transfer income tax of this case has already occurred. In the near future, there was a high probability that each of the transfer income tax of this case has been established due to the transfer of the above real estate in the near future, as well as the fact that each of the transfer income tax of this case has been realized in the near future, and each of the transfer income tax of this case has been established, each of the transfer income

B. Establishment of fraudulent act

According to the above facts of recognition, the act of Kim ○ concluded each of the instant sales contracts on each of the instant real estate, which is the only property between the Defendant and the Defendant, which resulted in the reduction of the common security of ordinary creditors against Kim ○, including the Plaintiff, thereby constituting a fraudulent act, barring any special circumstances. Kim ○ was known to the effect that each of the instant sales contracts would prejudice the Plaintiff, the obligee, and the Defendant, the beneficiary, also is presumed to have been malicious.

C. Defendant’s assertion

(1) First of all, the defendant demanded consolation money and division of property according to divorce as the agreement was reached on September 16, 2004 with Kim Il-dong and the defendant demanded consolation money and division of property according to divorce. Accordingly, the defendant transferred consolation money and division of property to the defendant, which was transferred to Kim Jong-k, which was the father of each of the real estate of this case, and thus, each of the sales contracts of this case does not constitute fraudulent act. However, there is no evidence to support that Kim Il-k's donation of each of the real estate was made from Kim Jong-k, which was the father of each of the real estate of this case, to Kim Jong-k, and each of the real estate of this case shall be deemed to be the property owned by Kim ○-k, which is not the ownership of Kim Il-k, and therefore the real estate of this case shall not

(2) In other words, the defendant asserts that the defendant is a bona fide beneficiary because he had known the fact that Kim ○ was in arrears with the above capital gains tax, but there is no other evidence to acknowledge the testimony of the witness Kim ○, who seems consistent with this, and therefore, the defendant's above assertion is without merit.

(3) In other words, the defendant asserts that he did not receive the benefits for more than 10 years at the gas station operated by Kim ○, and that Kim ○ did not complete the registration of ownership transfer with respect to each of the instant real estate in return for it. However, it is not sufficient to recognize only the items of evidence No. 1, No. 2-1, No. 2, and No. 3, and there is no other evidence to acknowledge it. Thus, the defendant's assertion is without merit.

(4) The defendant lasts, each of the instant real estate is the property trusted the title to Kim ○, which is put by Kim ○, the Kim ○, and the title trust is null and void in violation of the Act on the Registration of Real Estate under Actual Titleholder's Name. Since Kim ○ transferred each of the instant real estate to the defendant as a consolation money and a division of property, the registration of transfer of ownership in the name of the defendant as to each of the instant real estate is a valid registration consistent with the substantive relationship. However, although Kim ○, which seems to be consistent with the fact that Kim ○, which was put by Kim ○, held that the testimony among the witness Kim ○, was trusted the instant real estate, and there is no other evidence to recognize it differently, the defendant's above assertion

D. Sub-determination

Therefore, each of the instant sales contracts concluded between the Defendant and Kim ○ shall be revoked as a fraudulent act, and the Defendant, as a restoration to its original state, shall be obliged to implement the registration procedure for cancellation of each transfer of ownership recorded on the basis of the facts stated on the ground of the foregoing 1.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance with the same conclusion is just, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

[Yansan-Support2006 Ghana62317 (O. 31, 2008)]

2. 피고는 〇〇〇에게 별지 1.기재 부동산에 관하여 〇〇지방법원 〇〇지원 2006.4.27. 접수 제43812호로 마친 소유권이전등기 및 별지 2. 기재 부동산에 관하여 같은 법원 2006.6.14. 접수 제61157호로 마친 소유권이전등기의 각 말소등기절차를 이행하라.

3. The costs of lawsuit shall be borne by the defendant.

가. 〇〇〇은 2004.3.10. 〇〇〇 〇〇〇 212 답 1,652㎡를, 2004.12.2. 〇〇〇 〇〇〇 000-1 주유소용지 804㎡, 같은 동 000-2 답 134㎡, 같은 동 000-3 전 87㎡, 같은 동 000-4 전 44㎡, 같은 동 000-6 답 107㎡, 같은 동 000-7 주유소용지 94㎡ 및 〇〇〇 〇〇〇 000-1, 7 지상 주유소 건물을 타인에게 양도하고 2005.5.31. 양도소득세 신고를 하였으나, 이를 기한 내에 납부하지 아니하였고, 이에 〇〇세무서장은 2006.9.6. 〇〇〇에 대하여 납부기한을 2006.9.30.로 정하여 178,007,460원의 양도소득세를 부과하였다.

나. 〇〇〇은 또한 2005.9.23. 〇〇〇 〇〇〇 000-1 전 1,262㎡를 타인에게 양도하고 2006.5.31. 양도소득세 신고를 하였으나, 이를 기한 내에 납부하지 아니하였고, 이에 〇〇세무서장은 2006.7.7. 〇〇〇에 대하여 납부기한을 2006.7.31.로 정하여 98,992,850원의 양도소득세를 부과하였다.

다. 〇〇〇은 그의 아들인 〇〇〇의 전처인 피고(〇〇〇과 피고는 2004.9.16. 협의 이혼하였다)에게, 별지 1. 기재 부동산에 관하여 〇〇지방법원 〇〇지원 2006. 4. 27. 접수 제 00000호로 2006.3.28. 매매계약을 원인으로 한 소유권이전등기를, 별지 2. 기재 부동산에 관하여 같은 법원 2006.6.14. 접수 제00000호로 2006.5.20. 매매계약을 원인으로 한 소유권이전등기를 각 마쳐 주었는데, 위 각 부동산 처분 당시 〇〇〇은 위 각 부동산 외에 다른 적극재산을 보유하고 있지 않았다.

[Grounds for Recognition] Unsatisfy, Gap evidence 1 to 9, Eul evidence 4 (including each number), the purport of the whole pleadings

2. Determination

(a)the existence of preserved claims;

In principle, a claim that can be protected by the obligee’s right of revocation should have arisen before the obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, at the time of the juristic act, the legal relationship which has already been established as the basis of the claim, is highly probable to the effect that the claim would have been created in the near future in the near future, and the claim may also become the preserved claim of the obligee’s right of revocation in the near future in the event

이 사건에 관하여 보건대, 〇〇〇이 이 사건 각 매매계약일 이전에 이미 그 소유의 부동산들을 타인에게 양도한 사실은 앞서 본 바와 같고, 따라서 이 사건 각 양도소득세 채권은 이 사건 각 매매계약 체결 당시에 이미 그 발생의 기초적 법률관계가 발생하였다 할 것이고 가까운 장래에 위 각 부동산의 양도에 터잡아 이 사건 각 양도소득세 채권이 성립되리라는 점에 대한 고도의 개연성이 있었을 뿐만 아니라 실제로 가까운 장래에 그 개연성이 현실화되어 이 사건 각 양도소득세 채권이 성립하였으므로, 결국 이 사건 각 양도소득세 채권도 채권자취소권의 피보전채권이 된다.

B. Establishment of fraudulent act

위 인정사실에서 본 바와 같이, 〇〇〇이 피고와 사이에 자신의 유일한 재산인 별지 기재 각 부동산에 관하여 이 사건 각 매매계약을 체결한 행위는 원고를 비롯한 〇〇〇에 대한 채권자들의 공동담보를 감소시키는 결과를 초래하는 것으로서 다른 특별한 사정이 없는 한 사해행위가 되며, 김〇〇은 이 사건 각 매매계약으로 인하여 채권자인 원고를 해할 것임을 알았다고 할 것이고, 수익자인 피고의 악의는 추정된다.

C. Judgment on the defendant's assertion

이에 대하여 피고는, 〇〇〇과 2004.9.16. 협의이혼하게 되면서 이혼에 따른 위자료 및 재산분할을 요구하였고, 이에 〇〇〇이 별지 기재 각 부동산을 부친 〇〇〇로부터 장남 몫으로 받았다고 하면서 위자료 및 재산분할조로 이를 피고에게 양도한 것이므로 이 사건 각 매매계약은 사해행위에 해당하지 않는다고 주장하나, 피고가 제출한 증거들만으로는 이를 인정하기에 부족하고, 달리 이를 인정할 증거가 없을 뿐만 아니라, 별지 기재 각 부동산은 〇〇〇 소유가 아닌 〇〇〇 소유재산에 불과하여 이혼에 따른 재산분할 등의 대상이 될 수도 없으므로 피고의 주장은 이유 없다.

D. Sub-determination

따라서, 피고와 〇〇〇 사이에 체결된 이 사건 각 매매계약은 사해행위로서 취소되어야 하고, 그 원상회복으로서 피고는 〇〇〇에게 별지 기재 각 부동산에 관하여 마쳐진 각 소유권이전등기의 말소등기철차를 이행할 의무가 있다.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.