사해행위 해당 여부[국승]
Whether it constitutes a fraudulent act
The creditor's right of revocation against a fraudulent act does not require that the beneficiary is in collusion with the intention to evade his/her obligation, and it constitutes a fraudulent act because the beneficiary is responsible for proving the good faith to the beneficiary, but is not able to prove it.
§ 406. Revocation of Civil Code
2014 Gohap 56993 Revocation of Fraudulent Act
On March 31, 2012, as the transferred real estate was knocked on March 27, 2012, the duty to pay capital gains tax becomes liable.
It was abstractly established, and thereafter AA made a final return on May 28, 2013, specifically by filing the final return on May 28, 2013
Since it was confirmed that the probability has been realized, it shall be deemed that the claim has occurred.
Tax claims of this case are preserved claims for revocation of fraudulent act.
(b) The intent to commit fraudulent and fraudulent acts of AA;
1) AA has transferred on March 15, 2013 each real estate listed in paragraphs 1 through 3 in the separate sheet.
A contract under which the amount shall be KRW 1,139,00,000,000 is to be transferred to the defendant of the Kaman and March 2013.
18. The defendant completed the registration of ownership transfer with the Seoul Central District Court OO.
2) In addition, AA shall provide for each real estate listed in paragraphs 4 through 6 in the separate sheet on March 15, 2013.
The transfer value shall be KRW 110,200,000, which shall be transferred to the Defendant; and the registration of ownership transfer shall be made on April 15, 2013 by the Seoul Central District Court No. 90978.
Each contract described in paragraphs (1) and (2) is referred to as "the sales contract of this case".
3) Attached Form 1,249,200,000 won for active property owned by AA at the time of the instant sales contract
In addition to each real estate recorded in the record, the indication of the real estate equivalent to KRW 350,00,000 shall be within the column of Paragraph 7.
(1) In addition to the sum of the real estate in paragraph (28) of this section, the sum of the real estate in paragraph (1),59,200,000 shall not be exceeded by the plaintiff.
In addition to the tax liability of KRW 899,657,890, the collateral security obligations against the Gohap Agricultural Cooperatives
Total amount of KRW 2,690,661,303, and total amount of KRW 100,000,000,000,
In 3,690,319,193, it had already been in excess of the obligation.
4) AA transfers each real estate listed in the separate sheet to the Defendant in excess of its obligation.
It is well that it would result in a situation in which it is not possible to dispose of the small property, such as taxes in arrears.
Although the above real estate was known to the defendant, the above real estate was transferred to the defendant, thereby.
It is reasonable to conclude that there was an intention to cause harm to creditors including the Plaintiff.
J. Since the defendant's bad faith is presumed to be also presumed, the defendant's restitution following the revocation of the fraudulent act
have an obligation.
(c) Value compensation;
(1) AA prior to a fraudulent act shall be: (1) the indication column of real estate in the table No. 1, 2, 3, 12, 13;
2,690,661, the mortgagee of the right to collateral security with the security of each real property described in paragraph 2,69
2. Table 1, 2, 12, and 13 in the column of indication of real estate; < Amended by Act No. 1050, Mar. 10, 2011>
Maximum debt amount with respect to DDR Co., Ltd. with respect to secured real property
3. Table 1, 2, and 12 in the column for indication of real estate; < Amended by Act No. 1050, Mar. 10, 2011>
Maximum debt amount with respect to DDR Co., Ltd. with respect to secured real property
(4) Paragraph (1) shall apply to the indication column of real estate in an amount equivalent to 585,00,000 won. < Amended by Presidential Decree No. 2329, Nov. 23, 2011>
collateral security holders, Inc., DD with the collateral security of the real estate mentioned in paragraphs (16) through (16)
the maximum debt amount of KRW 1,950,000,000, the debt with the right to collateral security, and ⑤ April 12, 1997, the debtor EE;
title 14 through 1, the indication column of real estate in which the mortgagee of the right to collateral security is F Bank
(6) The maximum maximum debt amount of 60,000,000 won for the immovable property described in paragraph (6), and 6. < Amended by Act No. 535, Apr. 12, 1997>
Real estate indication column 2 of the table 2 with the person without interest as GG and with the mortgagee as FF bank
(7) A secured debt of the maximum debt amount of KRW 36,00,000 on the immovables specified in paragraphs (14) through (16), 199
4. Table 2: The debtor as KimO-O and the mortgagee as FF bank; and
Real estate display column 24,00,000 won for real estate set forth in section 14 to paragraph (16)
A total of KRW 6,525,319,193 was responsible for the debt.
2) AA collateral security on real property mentioned in paragraphs 1 to 16 of the indication of real property by title 2.
권자인 주식회사 DDD는 AAA의 조카 QQQ, WWW 및 주식회사 RRR)가 전체
A special-purpose holding 20,000 shares of 50,000 shares issued; the National Tax Service shall
DD Co., Ltd., the actual amount of debt of the right to collateral security established on the above real estate
However, without just cause, the inquiry seems to be false because it did not cooperate with it.
3) Except as otherwise provided by the right to collateral security against DD Co., Ltd. which is false debt, private
It is confirmed whether the collateral security obligation existed at the time of the act was its substance.
OO Agricultural Cooperative’s collateral obligation (the amount of actual collateral obligation 2,690,661,303) and (2)
Amounting to KRW 120,000,000 for FF Bank Co., Ltd.
100,000,000 each subject matter of a joint mortgage on the basis of the amount of secured obligation of each immovable.
If calculation is made in proportion to the value of real estate, it shall be same as the description in Table 3.
4) Therefore, it is offered to general creditors as joint collateral through the above real property at the time of the fraudulent act.
Liability property is KRW 1,249,200,000,000 (i.e., the transfer value of real estate as stated in paragraph (1), (2), (3)
1,139,000,000원+⑭, ⑮, ��항 기재 부동산 양도가액 110,200,000원)에서 위 부동산을
Amount of secured debt of the right to collateral security established as collateral 1,034,735,733 (=700,648,203) +
5,919,458.8 + 228,168,075.5 + 49,460,000 + + 14,420,000 + 36,110,000)
The remaining part is 214,464,267 won.
D. Sub-determination
Therefore, the sales contract of this case shall be revoked as it constitutes a fraudulent act, and the defendant shall be the plaintiff.
As restitution, the above 214,464,267 won and damages for delay shall be paid.
2. Applicable provisions;
Judgment on deemed confession (Article 208 (3) 2 and Article 150 (3) of the Civil Procedure Act)
Korea
OO
September 17, 2015
October 8, 2015
1. The real estate transfer agreement concluded on March 15, 2013 between the defendant and AA on each real estate listed in the separate sheet shall be revoked.
2. The defendant shall pay to the plaintiff 214,464,267 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.
3. The costs of lawsuit shall be borne by the defendant.
The same shall apply to the order of the Gu office.
1. Indication of claim;
A. The Plaintiff’s taxation claim against AA
1) AAAA shall not file a final return on March 8, 2011 with respect to ① 7,711 square meters of OOO0-dong OO0-dong OO2, ② 1407.82 square meters in relation to automobile-related facilities with two floors above OO-dong O-dong O-dong O-dong O-dong-O2, ③ 65 square meters in Gyeongsan-si, ④ O-dong-dong O2, ⑤ 0 square meters in Gyeongsan-si, ⑤ OO-dong O-dong O20 square meters in Gyeongsan-si, ⑤ O-dong O-dong O20 square meters in Gyeongsan-si (hereinafter collectively referred to as “transfer real estate of this case”), but did not file a final return on the tax base of capital gains on March 27, 2012 after the voluntary decision on commencement of sale (Seoul District Court 2011 O-dong O200 square meters).
Accordingly, on October 4, 2013, the head of the O-O Tax Office under the Plaintiff notified AA of the payment deadline on October 31, 2013, the transfer income tax amount of KRW 843,956,758 for the year 2012, but AA failed to pay it and the amount of arrears for the year 2012 is KRW 89,657,890 for the transfer income tax of KRW 89,657,890 for the current tax claim(hereinafter referred to as "the tax claim of this case").
2) Prior to the date of the instant sales contract (C. 15, 2013) that deemed that the instant transferred real estate was a decision of voluntary commencement of auction on March 8, 2011, it was highly probable that the instant real estate would form the basis for the establishment of the instant tax claim, and that its claim would have been created in the future, and that this was highly probable.