Re-transmission Judgment

Seoul High Court Decision 2013Na21712 Decided July 24, 2013

Judgment of re-return

Supreme Court Decision 2014Gahap39602 Decided January 15, 2015

2. One-seven of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

3. In the decision of the court of first instance, the term "donation contract" in Paragraph 1 of the decision shall be corrected to "payment act".

The payment of KRW 330,00,000 between the defendant and the formerB on December 5, 2007 shall be revoked. The defendant shall pay to the plaintiff 30,000,000 with the interest of KRW 330,000 per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

A. Progress of the instant lawsuit

1) On December 5, 2007, the first instance court revoked the donation agreement of KRW 330,000,000 between the formerB and the formerB as the donation agreement and revoked within the limit of KRW 152,026,764, and the defendant paid 152,02,06,764 to the plaintiff at the rate of KRW 55% per annum from the day following the day when the judgment became final and conclusive to the day of full payment.

2) The defendant appealed against the whole part of the judgment against the defendant. The court prior to the remanding, accepted part of the defendant's appeal against the defendant, and this court rendered a judgment against the defendant who revoked the above contract in excess of 151,928,764 won as to the donation contract between the defendant and the formerB as of December 5, 2007 between the defendant and the formerB, and dismissed the plaintiff's claim corresponding to the revoked part. The plaintiff's claim against the defendant who ordered payment in excess of the amount ordered under the judgment against the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed. The defendant shall be dismissed. The defendant shall pay to the plaintiff 151,928,764 won and the amount calculated at a rate of 5% per annum from the day following the day of the final judgment to the day of the complete payment.

3) The Defendant appealed against the entire part against the Defendant, and the judgment of remanding the case is reasonable to regard the payment of the instant case as a division of property following the divorce, and the Defendant’s appeal is accepted, and the part against the Defendant in the judgment before remanding the case shall be reversed and remanded, on the ground that it is reasonable to regard it as a division of property following the divorce.

4) The court held that the instant payment act was within a reasonable extent as a division of property following the divorce, and thus revoked the part against the Defendant among the judgment of the court of first instance, and dismissed the Plaintiff’s claim corresponding to the revoked part. Accordingly, the Plaintiff appealed on the entire part against the Plaintiff. The judgment of the court of second instance accepted the Plaintiff’s appeal and reversed the entire judgment of the re-transmission and remanded to this court.

(b) Object of adjudication of this court after re-return;

Since the judgment of remand was reversed and remanded only to the part against the defendant in the judgment before remanding, the part against the plaintiff in the judgment before remanding (the part in excess of 151,928,764 won in the claim for cancellation of the contract of donation between the defendant and the formerB on December 5, 2007 and the part in excess of 151,928,764 won in the claim for restitution and 151,928,764 won in the claim for restitution, and the part in excess of 5% per annum from the day after the day when the judgment becomes final and conclusive to the day of complete repayment) are final and conclusive. Accordingly, the scope of the judgment before remanding is limited to the scope of the "cancellation and restitution" of the part in the judgment of the first instance on the payment of this case, which is revoked and the dismissal of the plaintiff's claim corresponding to the cancellation part in the judgment of the former court on December 5, 2007.

2. Basic facts and parties' arguments;

This part of the reasoning of this Court is identical to the corresponding part of the reasoning of the judgment of the court of first instance (1. basic facts and the allegations of the parties) except for any parts which are dismissed or added below, and therefore, it shall be quoted in accordance with the main sentence of Article 420 of the Civil Lawsuit Act.

【Supplementary or Additional Parts】

○ The lower part of the third page shall be as follows:

No.

Items of Taxation

Date of payment notice

The notified tax amount (cost)

Grounds for Imposition

guidance.

Principal Tax

Additional Tax on negligent tax returns

Additional Tax for Insincere Payment

1

Comprehensive Real Estate Tax

March 8, 2008

6,135,130

6,135,130

Since it is a taxpayer of comprehensive real estate holding tax as of June 2007, the imposition of comprehensive real estate holding tax on June 2007.

2

Transfer Income Tax (real estate 1)

January 1, 2009

23,961,050 (Terlime less than 10 won)

177,114,319

35,422,863

11,423,874

1. Imposition of transfer income tax and additional tax by failing to file a report on transfer income tax after selling real estate

3

Transfer Income Tax (Second Real Estate)

January 1, 2009

23,187,00

23,187,00

2. Imposition of transfer income tax by failing to report transfer income tax after selling real estate

4

Transfer Income Tax (Third Real Estate)

January 1, 2009

182,028,750

143,953,144

28,790,628

9,284,978

No. 3. Imposition of transfer income tax by failing to report transfer income tax after selling real estate

Total

435,311,930

○ 12th "A, Nos. 1, 2, and 1 to 22th of "A" shall be added to the following:

○ The term " December 5, 2010, which will be the 16th day of the fourth 16th ," is changed to " December 5, 2007".

3. Determination

A. Whether there is a preserved claim

1) Criteria for judgment

In principle, a claim that may be protected by the obligee’s right of revocation shall be accrued prior to a fraudulent act. However, at the time of a fraudulent act, there exists a legal relationship which already serves as the basis of the establishment of the claim, and there is a high probability that the claim will be established in the near future by such legal relationship, and in fact, where a claim has been created due to its realization, it may become a preserved claim (see, e.g., Supreme Court Decision 2006Da66753, Jun. 29,

2) Determination

Article 21 (1) 10-5 of the former Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007), Article 3 of the former Gross Real Estate Tax Act (amended by Act No. 8830 of Dec. 31, 2007), Article 190 of the former Local Tax Act (amended by Act No. 8540 of Jul. 20, 2007), and the time when a transfer income tax claim is established is the last day of the month in which the amount constituting the tax base occurs (Article 21 (2) 2 of the Framework Act on National Taxes).

Therefore, the time when the Plaintiff’s comprehensive real estate holding tax claim against the formerB is established is June 1, 2007, and the time when the first real estate holding tax claim for the transfer income tax (principal tax) of this case is established on October 31, 2007, and the second real estate holding tax claim of this case, and the third real estate holding tax claim of this case is December 31, 2007, respectively.

B) Whether the Plaintiff’s taxation claim can be the preserved claim

(1) Since both the above claim of comprehensive real estate holding tax and the claim of transfer income tax on the first real estate of this case were established prior to the instant payment act claiming that the Plaintiff was a fraudulent act, it may become a preserved claim of the obligee’s right of revocation.

(2) Among the instant claim for transfer income tax on real estate No. 1, each additional tax portion, the instant claim for transfer income tax on real estate No. 2, and the instant claim for transfer income tax on real estate No. 3, all of which were asserted as fraudulent act by the Plaintiff after the instant payment act. However, in light of the following circumstances, each of the instant claims may also become a preserved claim against the obligee’s right of revocation (see Supreme Court Decision 2006Da66753, Jun. 29, 2007).

① Since the date of the instant payment, which was the date of December 5, 2007, had already been owned by BB prior to the sale of the instant real estate and the receipt of the remainder of the sale of the instant real estate Nos. 1, 2, and 3, at the time of the instant payment, the Plaintiff’s claim for capital gains tax on BB as well as the claim for bad faith in reporting, and additional tax for bad faith in payment was established.

② The formerB failed to comply with the final return and the final return procedure for voluntary payment as well as the preliminary return on the tax base of capital gains on each of the above real estate. Accordingly, there was a high probability that transfer income tax and each of the above additional taxes will be made in the near future. In addition, in fact, transfer income tax claims on the instant 2 real estate and the instant 3 real estate transfer income tax claim on December 31, 2007 were established on December 31, 2007, and each of the above additional taxes

B. Whether the fraudulent act was established

1) Legal nature of the instant payment act

Comprehensively taking account of the overall purport of the arguments in Gap evidence 10, Eul evidence 2-1, Eul evidence 2-2, Eul evidence 4-1, and Eul evidence 4-2, the defendant completed the marriage report with the previous BB on December 6, 1974 and maintained a marriage relationship for a period of 34 years. The defendant is away from the former BB on January 2008, and the defendant was living separately from the former BB on May 30, 2008.

According to the above facts of recognition, it is reasonable to view that the defendant terminated the marriage relationship by a divorce between BB and B, and each of the descriptions as Gap evidence Nos. 7 through 9, Gap evidence Nos. 13 through 19, and No. 20-1 and No. 2 is insufficient to reverse it.

However, as seen below 2-C, it is reasonable to view that the instant payment act was made as a division of property between the Defendant and B, in light of the following: (a) the instant payment act was made from the end of January 2008 to the end of May 30, 208; and (b) the agreement was completed on May 30, 2008, in view of the fact that the instant payment was made as a division of property pursuant to divorce between the Defendant and B and B; (c) the Defendant acquired the instant payment under the name of B; (d) the Defendant cooperateed with the maintenance and value increase; and (e) the payment was part of the instant payment that was made by disposing of the instant third real estate; and (e) the payment was made on December 1, 2007; and (e) there was insufficient evidence No. 6, No. 1, No. 3, No. 6-1, No. 6-2, No. 10-1, No. 12, No. 1, 1, and 1, respectively, an agricultural cooperative.

Therefore, the plaintiff's primary claim for the gift contract and the defendant's claim for repayment of the amount of indemnity cannot be accepted on different premises.

2) Whether a fraudulent act was established

A) The current status of the property of BB before the debtor as of the date of the instant payment ( December 5, 2007) (the date of December 5, 2007)

[Reasons for Recognition] In the absence of dispute, Gap evidence 2-1 through 5, Gap evidence 3-1 through 4, Gap evidence 6, Gap evidence 18, 21, Eul evidence 1, 3, Eul evidence 6-1, 2, Eul evidence 7, 8, Eul evidence 10-1, 2, Eul evidence 11, 12, Eul evidence 11, and 12, the result of an order to submit each financial transaction information to the W Life Insurance Co., Ltd. in the first instance court, and the director of an agricultural cooperative at the same time, the purport of the whole pleadings as a result of an order to submit each financial transaction information to the director of an agricultural cooperative at the same time

(i)affirmative property;

No.

Types

Value (cost)

1

OO-dong O-dong O-dong No. O-O-dong (hereinafter referred to as "O-dong No. 4 of this case")

547,500,000

2

Y bank deposit claims (OO-7O-5OOOO)

103,746

Sub-committees

15,785,166 won

3

Y bank deposit claims (OO-0O-5OOOO)

1,337,801

4

Y Bank deposit claims (OO-9O-7OOOO)

2,147

5

Y Bank deposit claims (1002-831-56805)

10,451,548

6

QQ은행 예금채권 (1OOOOOOOO)

75,587

7

Z Bank deposit claims (1OOOO)

5

8

Suwon Deposit Claim (2O-O-0OOO)

3,814,332

9

Automobiles (Seoul 2OOOO)

38,000

10

Payment of this case

30,000,000

11

The remaining amount of the purchase price of the real estate No. 1 to No. 3 of this case (as to No. 12)

28,000,000

Total

921,623,166

(2) Petty property

No.

Types

Value (cost)

1

Tax liability against the plaintiff

435,311,930

2

PPPP fisheries cooperatives of this case on the fourth real estate of this case

280,000,000

3

Liability for Administrative Fines in Violation of Parking and Standing Regulations (Seoul 2OOO Motor Vehicles)

240,000

4

Liability for indemnity against the Defendant

169,000,000

Total

84,551,930

(3) Judgment on the defendant's assertion

(A) The Defendant asserted that the amount of KRW 50,000,000 shall be added to the 6O-O's active property of B prior to the time of the instant payment, but there is no evidence to acknowledge the claim for the return of the above 6O-O's deposit.

(B) At the time of the instant payment, the Defendant asserts that KRW 1,039,500,000 should be added to the 346,50,000 in the purchase price of the instant real estate, KRW 98,000 in the purchase price of the instant second real estate, and KRW 595,00,000 in the purchase price of the instant third real estate, and KRW 1,039,50,000 in the aggregate of KRW 1,00 in the purchase price

In light of the above, a debtor's insolvency as a requirement for revocation of a fraudulent act means that the debtor's ability to repay is nonexistent. In particular, in a case where it is impossible to expect a voluntary repayment, repayment through compulsory execution should be taken into account. As such, whether it is a small property, active property, or property that can conform to the above purpose should be an important factor to determine whether it is sufficient to perform. Therefore, in calculating the debtor's active property, it may be subject to compulsory execution, barring any other special circumstances, and thus, it shall be excluded from property that cannot serve as a joint security for claims (see, e.g., Supreme Court Decision 2004Da2564, Feb. 10, 2006).

In full view of the purport of the argument as to Gap evidence 2-1, 2, and Eul evidence Nos. 7, 8, 12, and 20, and the whole purport of the argument as to the order to submit financial transaction information to ZZ Bank Co., Ltd. before the act of payment of this case, Eul received KRW 346,50,000 with the purchase price of the first real estate of this case (=98,000,000 with the sale price of the second real estate of this case) - KRW 50,000 with the amount of the lease deposit which was disposed of against the intermediate payment at the time of the sale contract - KRW 50,000 with the sale price of the third real estate of this case, KRW 30,00 with the sale price of the third real estate of this case, KRW 40,31,635,00 with the sale price of the third real estate of this case, and KRW 30,000 with the sale price of the third real estate of this case.

On the other hand, the Defendant alleged that B had repaid the above debt with the real estate purchase price of KRW 9,80,000 with respect to the couple with the secured debt of KRW 20,00,000, which was set forth in the instant real estate. However, in light of the circumstances acknowledged by BB as comprehensively taking account of the entries in Category 2-2 and the overall purport of the pleadings as to the submission order of financial transaction information to the TRB Co., Ltd., the Plaintiff had existed before BB acquired the above real estate, and the obligor cannot be aware of the relationship with BB or the Defendant; and in light of the fact that the principal amount of the secured debt at the time of the sale of the said real estate was relatively small amount of KRW 3,775,20, the sale of the real estate was not treated at the time, and it is difficult to recognize that BB had sold the instant real estate price of KRW 2,00,000,000, which was more than two years ago.

In addition, in addition to the portion of the actual receipt of the purchase price of each of the real estate Nos. 1, 2, and 3 of this case, the Defendant alleged that the real estate lease deposit of this case was returned to KRW 95,00,000,000, the shortage of the lease deposit for the place of residence 90,000, monthly rent of KRW 43,200,000, Defendant’s medical expenses of KRW 75,920,00, Defendant’s medical expenses of KRW 70,370,000, brokerage fees, formerBB and children’s business expenses and loans. However, there is no evidence to acknowledge this differently.

Ultimately, in the actual receipt portion of the purchase price of each of the instant real estate 1, 2, and 3, the remainder of 415,801,680 won [1,500 won + KRW 46,500,000 + KRW 48,000 of the purchase price of the instant real estate 2 real estate 3 + KRW 595,000 out of the purchase price of the instant real estate 3 real estate - KRW 215,698,320 (=40,31,653 + KRW 175,36,67] - The payment amount of the instant real estate 30,000,000 - the remainder of the purchase price of the instant real estate 2,000,000] - The said details of the use cannot be determined at the time of the instant transaction cannot be determined.

Therefore, in determining whether the former BB’s insolvency at the time of the instant payment act, the said KRW 415,801,680 cannot be included in the formerB’s active property, which is not possible to ascertain the existence and existence of the third party.

(C) Therefore, the defendant's above arguments are without merit.

B) Whether the instant payment act resulted in the insolvency of the BB

In full view of the above circumstances, although active property of BB at the time of the instant payment act exceeds 37,071,236 won (=921,623,165 won - 884,51,930 won) as active property of B was reduced by 330,000,000 won due to the instant payment act, there is a lack of joint security of claims against BB arising from the instant payment act (=30,000,000 - 37,071,236). Accordingly, there is room for the instant payment act to constitute a fraudulent act.

C) Whether the instant payment constitutes a fraudulent act as division of property beyond considerable degree

(1) Determination criteria

The division of property at the time of divorce is so excessive that it cannot be deemed reasonable contrary to the purport of Article 839-2(2) of the Civil Act, and the division of property is not subject to the obligee’s right of revocation as a fraudulent act, barring any special circumstance that it is recognized that the division of property was actually conducted, barring such special circumstance, the scope of revocation is limited to the portion exceeding the considerable portion (see, e.g., Supreme Court Decisions 2000Da14101, Jul. 28, 2000; 2004Da58963, Jan. 28, 2005).

(2) Whether division of property is reasonable

(A) Reasons for the formation of property

① The Defendant and the BB completed the marriage report on December 6, 1974, and on May 30, 2008, maintained a marriage relationship for about 34 years until the agreement is married.

② The formerB served as an OO official from time of marriage to 1998, and was engaged in the real estate brokerage business after retirement, and the Defendant provided up B B with child rearing, housework, etc.

③ Since around 1982, JeonB purchased a house or apartment under its own name for residential or investment purpose. The real estate of this case was acquired from around 1987 to around 1997, and the Defendant acquired and leased the OOO No. 7O, OO-dong, Seoul OO-dong (hereinafter “Defendant-owned commercial building”).

④ On December 29, 2007, the formerB sold the instant 4 real estate to TT for KRW 547,500,000, and completed the registration of ownership transfer on February 25, 2008. Around that time, the formerB repaid KRW 280,00,000 to the secured debt of the PPPP fisheries cooperative on the said real estate.

⑤ On June 26, 2007, the Defendant obtained a loan of KRW 240,000,000 from an agricultural cooperative at the same time as a loan of KRW 169,000,000 among those loans, and used KRW 169,00,000 to repay its loan obligations to the WW Life Insurance Co., Ltd.

[Reasons for Recognition] 2-2, Gap evidence 3-2, Eul evidence 3-2, Eul evidence 6, 13-5, Eul evidence 4-1, 2, Eul evidence 5-5, Eul evidence 6-1, 2, Eul evidence 6-2, Eul evidence 10-2, Eul evidence 11, 14, 15, Eul evidence 16-1, 2-2, Eul evidence 17-1, 19, 20, Eul evidence 17-2, Written evidence 19, 20 of the court of first instance, W life insurance company of the court of first instance, and the purport of whole pleadings, as a result of each order to submit financial transactions to the head of an agricultural cooperative in the City of Commerce;

(B) Property subject to division

In full view of the circumstances leading up to the formation of marriage and property, and the status of property possession by the former BB prior to the above, where it is recognized that the other party has prevented the reduction of the property through cooperation in the maintenance of the property or has cooperated in increasing the property, the property may be subject to division of property, and where it is a debt accompanied by the formation and maintenance of the common property, the property subject to division based on the agreement between the defendant and the former B as of May 30, 2008 is the same as the following table.

Among them, in light of the fact that the formerB had the real estate No. 4 of this case, unlike the real estate No. 1 through 3 of this case, and that the formerB had the real estate No. 4 of this case, and that the payment of this case was conducted as division of property under the premise that the formerB had the real estate No. 4 of this case, and that the agreement was sold near the time of the divorce, it is reasonable to deem that the formerB had the ownership of the former B at the time of divorce. Meanwhile, the portion of KRW 415,801,680 in the balance after the disbursement of the real estate No. 1 through 3 of this case cannot be deemed that the former B had the ownership of the said money at the time of the payment of this case, and there is no evidence to support that the payment of this case was made under the premise that the former B had the said money, and that

Classification

BB

Value (cost)

Types

Value (cost)

Active Property

The balance of the fourth real estate sales price of this case

267,500,000 (=547,500,000-280,000,000)

450,000,000

Total deposit claims

15,785,166

claim for indemnity against BB

169,000,000

Automobiles

38,000

Right to Claim for Refund of Lease Deposit for OO-O in Seoul OO-dong 5O-O

28,000,000

Payment of this case

30,000,000

Sub-committees

311,623,166

Sub-committees

949,000,000

Petty Property

Plaintiff’s Tax Claim

435,311,930

240,000,000

Administrative Fines

240,000

Liability for indemnity against the Defendant

169,000,000

Sub-committees

604,551,930

Sub-committees

240,000,000

net property

(-)292,928,764 (=311,623,166-604,551,930)

709,000,000 = 949,000,000-240,000)

(C) Contents of division of property

If so, net property which deducts positive property subject to division of property is calculated as KRW 416,071,236 (=709,00,000 - KRW 292,928,764).

However, as seen earlier, the formerB performed the instant payment as a division of property, and both the Defendant-owned commercial buildings and the secured debt thereof, which have not been sold and disposed of, among the real property, are maintained in the name of the Defendant, and the formerB has no property paid to the Defendant in the division of property. In light of the fact that the formerB and the Defendant terminated the claim and obligation between the two parties out of the property subject to division of property, and then, it seems that the formerB and the Defendant agreed to vest all the remaining property in the original owner.

(D) The reasonableness of division of property

Whether the division of property of a debtor, which is the basis for determining a fraudulent act, is reasonable shall be determined in accordance with the general principle of division of property as prescribed by Article 839-2 of the Civil Act. However, in light of the purport of the above provision, it is reasonable to deem that the division of property is reasonable in the relationship between the divorced party’s interest and the creditor’s interest, and that the division of property is reasonable in terms of the relationship with the divided party’s creditor. In addition, in light of the purport of the above provision, it is reasonable to deem that the division of property refers to the ratio of division of property, not to refer to the degree of contribution to the individual property, but to the ratio that can be divided from the other party’s spouse with respect to the whole formed property

The net property subject to division of property in this case is KRW 416,071,236, and the Defendant’s net property divided is KRW 540,00,000 (= KRW 450,000,000, among the Defendant’s active property + KRW 330,000,000,000, among the Defendant’s active property - Defendant’s negative property 240,000,000). On the other hand, the net property divided by B is KRW 123,928,764 [Article 311,63,1666, [Article 31,62,06 of the previousB’s active property - KRW 604,551,930] of the previousB’s positive property - KRW 169,00,00].

Furthermore, in light of the background leading up to the formation of the property subject to division and the degree of contribution by the Defendant, it is reasonable to deem that the Defendant’s contribution does not exceed 50%, and the limit of the property value to be reverted to the Defendant according to the Defendant’s contribution to the division of property is calculated as KRW 208,035,618 (=416,071,236) (=50%) equivalent to 50% of the net property subject to division. However, as a result of the division of property between the Defendant and the formerB, the Defendant was divided into the property exceeding the net property subject to division, and the Defendant was divided into the property exceeding the net property subject to division of 331.964,382 (=540,000,000 - 208,035,618).

In light of the above circumstances, the scope of the court’s adjudication is limited to KRW 151,928,762 of the instant payment act within the scope of KRW 330,00,000, at least KRW 151,928,764 of the instant payment amount, which goes beyond the reasonable extent as a division of property (see, e.g., Supreme Court Decision 415,801,680, which was not included in the property subject to division among the real estate sales proceeds of the instant case 1 through 3 real estate sales proceeds of the instant case, it is difficult to view otherwise considering that the formerB spent part of the amount for personal use up to the property division).

(3) Sub-decisions

Therefore, within the scope of KRW 292,928,764, which caused the shortage of joint security to creditors of the formerB among the instant payment act, the portion of KRW 151,928,764, which exceeds the reasonable degree as a division of property, constitutes a fraudulent act.

(c) Scope of cancellation and reinstatement;

Therefore, the act of payment of this case shall be revoked within the scope of KRW 151,928,764, and the defendant shall be liable to pay to the plaintiff 151,928,764 with compensation for delay calculated by the rate of 5% per annum from the day after the day when the judgment became final and conclusive to the day of full payment.

4. Conclusion

Therefore, the part against the remaining defendant, except the part which became final and conclusive by the judgment of remand among the judgment of the court of first instance as to the plaintiff's loss, is justifiable in conclusion, and the defendant's appeal is dismissed. It is so decided as per Disposition.