Seoul Central District Court 2011Kahap14614 ( October 21, 2011)

as of the date of the closing of argument, the security liability shall be revoked within the limit of the forest value less the secured obligation.

In the event that a registration of creation of mortgage was cancelled due to repayment after a fraudulent act, etc., the fraudulent act may be cancelled and claimed for compensation for the value thereof within the extent of the balance remaining after deducting the secured debt amount from the value of the real estate. Accordingly, the instant contract should be cancelled within the extent that the actual secured debt is deducted from the value of forest land as of

Article 30 of the National Tax Collection Act

2011Na101966 Revocation, etc. of Fraudulent Act

Korea

XX Stock Company

Seoul Central District Court Decision 2011Kahap14614 Decided October 21, 201

March 27, 2012

April 17, 2012

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The sales contract that was concluded on January 28, 2010 with respect to 77 m22, 200 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,00 m2,000 m2,000 m2,00 m2,00

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. Article XX Construction Co., Ltd. (hereinafter referred to as " XX Construction") was in arrears with the Plaintiff’s national tax of KRW 000 and its additional dues as follows.

B. On January 28, 2010, the XX Construction sold the instant forest to ○○○○○○○○○○ (○○○○○○○○○○○○ on September 29, 2006, in which the instant forest was transferred from Defendant on January 28, 2010, the remainder of the purchase price was transferred from Defendant 1 on January 28, 2010 and the ownership transfer registration was completed on September 28, 2010, by dividing the instant forest into 879-4 square meters, 3,875 square meters, such as registration conversion, land division, and land category change; hereinafter referred to as “the instant forest”). On September 29, 2006, the instant forest was transferred to the Defendant on September 28, 2010, and the ownership transfer registration was completed on October 29, 2010.

C. At the time of sale of the forest land of this case, construction is in insolvent in excess of positive property as follows.

(i)affirmative property;

The value of the forest of this case is KRW 60,802,940 on the claim against the ○○○○○, Oconstruction Co., Ltd. (hereinafter referred to as “Oconstruction”), KRW 60,802,940 on the claim against ○○○○ Construction, KRW 00 on the claim against ○○ Bank, KRW 00 on the deposit claim against c banks, KRW 00 on the deposit claim against d banks, KRW 500 on the deposit claim against c banks, and KRW 54-3 on the Incheon AAAAAdong-dong 54-3 site and KRW 00 on the building site [ XX construction was sold on February 2, 2010. However, it is difficult to verify the actual purchase price. The building site is 00 won by multiplying the relevant area by the officially assessed individual land price (5.2§00 on the current base price, KRW 703,00 on the shares of the Construction Mutual Aid Association, or KRW 7030 on the shares (600 on the above shares).30

(2) Petty property

The above amount of national taxes in arrears (in addition to the amount of additional dues), 000 won in actual collateral obligation of the right to collateral security established on the forest of this case, 00 won in deposit obligation of bB bank (the balance prior to the payment of the purchase price in this case) and 000 won in deposit obligation of AAB bank, at least a total of 00 won in deposit obligation of b.00 won in the following separate accounts: (a) construction was liable for the obligation of construction payment to the subcontractor for non-paid promissory notes in arrears on February 5, 2010. (b) On January 9, 2012, the Defendant asserted the obligation of 200 won in the preparatory brief on January 9, 2012, on the premise that the construction was 00 won in total.)

[Based on the recognition] Evidence No. 1-1, Evidence No. 2-1 through 4, Evidence No. 3-1, Evidence No. 2, Evidence No. 4, 5, Evidence No. 5, Evidence No. 7-1 through 10, Evidence No. 10, Evidence No. 15-1 through 36, the purport of the whole pleadings

2. The occurrence of the right to revoke the fraudulent act;

A. Fraudulent act of XX Construction and presumption of bad faith of the defendant

According to the facts acknowledged earlier, the forest land of this case was an asset that the Plaintiff was able to execute the disposition on default on the payment of the national tax claim against XX Construction based on the above national tax claim. However, since construction, in excess of the obligation, sold the forest land of this case to the Defendant and caused the Plaintiff to fall short of the joint security of the claim, this constitutes a fraudulent act against the Plaintiff, who is the obligee, and the Defendant, the beneficiary,

B. Judgment on the defendant's assertion

(1) Determination as to the assertion that it is not a fraudulent act

The Defendant asserts that “The construction was tendered for construction work equivalent to KRW 00,00 from O construction and intended to overcome managerial difficulties,” and that “the instant forest and field sold the instant forest in order to provide tax payment funds in order to partially pay national taxes and submit a plan to pay national taxes in installments.” The Defendant asserts that “The instant forest and field sold the instant forest and field in order to continue the business by financing funds, and this act is not a fraudulent act.”

Comprehensively taking account of the overall purport of the arguments in Eul evidence 2-1, Eul evidence 2-2, Eul evidence 3-1, Eul evidence 14-1, and Eul evidence 14-2, and witness E-E testimony of the court of first instance, the fact that during 145 times from May 17, 2007 to September 30, 2009, the KF, who was the director of the accounting division, embezzled 1400 won for 145 times, has deteriorated the financial standing of X construction. The fact that the construction, ordered by the real estate trust company on December 11, 2009, participated in the bidding conference of the Y construction in the Namyang City Housing Site Development Zone where the OO construction was performed, and that the request for a promissorysory note was made from 200 to 15.25 days prior to the expiration date of the construction, and that the request for a promissory note was made.

① Since December 18, 209, it is difficult to verify the progress of the sales price for the instant construction project from 00 to 100, and there is no evidence to verify that the instant construction project had been carried out by the Defendant. However, the Defendant asserts that the plan to receive construction from 00 on February 5, 2010 was nonexistent, ② even if the construction in excess of obligations was paid by the Defendant on January 28, 2010, it is difficult to conclude that the above 00 won was completely paid and issued a certificate of full payment of national tax (value-added tax) and that it was difficult to find that 00 won was in excess of 0,000,000,000 won was in excess of 0,000,000 won was in excess of 20,000,000,000 won was in excess of 0,000,000 won was in excess of 20,000,000 won.

Therefore, the defendant's above assertion is not correct.

(2) Determination on the bona fide defense

The defendant is a bona fide defense that "if the GGG, the representative director of the defendant, was formally registered as a shareholder of XX Construction, there was no doubt about the internal circumstances of the XX Construction, and if the defendant knew that there is a risk of default of XX Construction, it would naturally not purchase the forest of this case. The forest of this case would be allowed to enter only through the defendant's camping site, and even if the defendant purchased the forest of this case at a reasonable price consistent with the market price at the time of sale and paid the purchase price, there was no awareness about the fraudulent act in light of the fact that the defendant paid the purchase price," but there was no evidence to acknowledge that the defendant was bona fide.

Rather, the following facts can be acknowledged in light of the overall purport of the arguments in the statement Nos. 1-3, 4, 5, 5-4, 5-6, and 6.

① On June 3, 1996, Nowon-G, the representative director of the Defendant, established the △ Public Corporation, Inc., and LaborE, while serving as the Defendant’s director, took over the △ Public Corporation around December 26, 2001, taken office as the representative director, and changed the trade name on December 28, 2001 to XX Construction.

② Nowon owns 14,00 of the total shares of GATT 81,000 and 137,775 of the total shares of Defendant 220,000 shares. LaborH owned 4,000 of the total shares of the Defendant from March 2, 200 to December 26, 2001, as the partner of Norway, owned 220,00 of the total shares of the Defendant.

③ The instant sales contract was concluded with the Defendant on the following day: (a) selling the instant forest to HH; and (b) receiving KRW 000 from HH on January 27, 2010; (c) on the other hand, it was revealed that hH was unable to succeed to the secured debt of the right to collateral security established on the instant forest due to low credit rating; and (d) the instant construction was deposited from the Defendant on January 28, 2010 with hH and returned the same amount to hH.

④ The instant forest land is a blind land that can move to a road through the 23,072 square meters of land for a factory in nuclear city owned by the Defendant, the Defendant’s representative director. The Defendant’s representative director purchased the instant forest land in the name of the Defendant in order to collectively resell the instant forest land with the land adjacent to the instant forest and the land owned by himself/herself. On December 6, 2010, NowonG sold land adjacent to the instant forest to the ▽ industry Co., Ltd. on December 6, 2010, and the Defendant, on December 14, 2010, sold the instant forest to the ▽▽ industry Co., Ltd. to ○○○○○○○○○○.

In light of the fact that: (a) the developments leading up to the establishment of the XX Construction; (b) the relationship between the Defendant and the XX Construction; (c) the timing and developments leading up to the sales contract; and (d) the Defendant’s representative director, in particular, purchased the forest land of this case, which is a blind party, from XX Construction, in a lump sum with his own land; and (b) the Defendant appears to have purchased the forest land of this case in question with a desire to obtain a resale benefit; and (c) the Defendant actually acquired ○○○○○○ gains from selling the forest land of this case, which was recognized by the fact that the instant construction would decrease the capacity of the general creditors of the construction by selling the forest of this case; and (d) it is reasonable to deem that the

Therefore, the defendant's above assertion is not correct.

3. Scope of revocation of fraudulent act and methods of reinstatement.

In cases where real estate on which a mortgage is established is transferred to a fraudulent act, such fraudulent act shall be deemed only to be established within the extent of the balance remaining after deducting the secured debt amount of the mortgage from the value of the real estate. In cases where the registration of establishment of a mortgage is cancelled by repayment, etc. after the fraudulent act, the fraudulent act can only be claimed for the cancellation of the fraudulent act and the compensation for the value thereof within the extent of the balance remaining after deducting the secured debt amount of the mortgage from the value of the real estate (see Supreme Court Decision 2006Da182

Comprehensively taking account of the overall purport of the arguments in the evidence Nos. 3-1, 2, 5-5, and 10 of the evidence Nos. 3-1, 5-5, and 10, Aa Bank set up a collateral security right with respect to the forest of this case on September 29, 2006, with respect to the maximum amount of debt (○○○○○○○○○) with respect to the forest of this case. On January 29, 2010, after completing the registration of ownership transfer under the Defendant’s name, it was repaid from the Defendant for the secured debt, and cancelled the registration of creation of a collateral security right on February 4, 2010. It is recognized that the value of the forest of this case at the time of the sale of this case was the same cause as the purchase price, and there is no dispute between the parties that the market value of the forest of this case is the same as that of the purchase price.

Therefore, the sales contract of this case shall be cancelled within the limit of ○○○○○○○○○○○○○○, which is based on the date of closing the argument in the trial, after deducting the actual secured debt from the value of the forest of this case as of the date of closing the argument in the trial. The Defendant, as value compensation, is obligated to pay to the Plaintiff damages for delay at the rate of 5% per annum as stipulated in the Civil Act from the day following the day of closing

4. Conclusion

Therefore, the plaintiff's claim is accepted, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed.