Busan District Court Decision 201Na5928 ( October 17, 2012)

The instant divorce payment contract is not a fraudulent act, the submission of the evidence by the Defendant alone is insufficient to recognize the Defendant’s good faith.

The instant divorce payment contract constitutes a fraudulent act as it goes beyond a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act. The evidence submitted by the Defendant alone is insufficient to reverse the above presumption and to recognize the Defendant’s good faith.

2012Na56469 Revocation of Fraudulent Act

Appellant and Appellant

Korea

- Appellants

GuaAAA

Incheon District Court Decision 201Gahap5928 Decided May 17, 2012

April 12, 2013

May 10, 2013

1.The judgment of the first instance court, including the primary claim reduced in the trial and the ancillary claim added thereto, shall be amended as follows:

A. Of the instant lawsuit, the part between BB and the Defendant regarding the cancellation of each gift contract of KRW 00 on February 11, 2009, KRW 000 on February 12, 2009, and KRW 000 on March 2, 2009, which was concluded between BB and the Defendant, shall be dismissed.

(b)in accordance with the preliminary claims added at the trial, and

1) The divorce benefits contract between BB and D on May 6, 2009 between them shall be cancelled within the scope of 000 won, and shall be cancelled within the scope of 00 won.

2) The defendant shall pay to the plaintiff 00 won with 5% interest per annum from the day immediately following the day when the judgment of this case became final to the day of complete payment.

(c) all the remaining main claims that have been reduced in the trial and the remainder of the supplementary claims are dismissed;

2. 9/10 of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

A. The primary purport of the claim

Each donation contract between the Defendant and BB shall be revoked with respect to KRW 00,000, KRW 000 on February 2, 2009, and KRW 000 on February 5, 2009, KRW 000 on February 11, 2009, KRW 000 on February 12, 2009, and KRW 000 on March 2, 2009, and KRW 1000 on May 7, 2009. The Defendant shall pay to the Plaintiff the amount calculated at a rate of KRW 5% per annum from the day following the date the judgment of this case became final to the day of full payment (the Plaintiff changed its primary claim to the Plaintiff and reduced its claim).

B. Preliminary purport of claim

The agreement between the Defendant and B shall be revoked within the limit of KRW 000, KRW 000, KRW 000 on February 2, 2009, and KRW 000 on February 5, 2009, KRW 000 on February 11, 2009, and KRW 000 on February 12, 2009, and KRW 000 on March 2, 2009, and the agreement between BB andD on KRW 000 on May 6, 200 shall be revoked. The Defendant shall pay to the Plaintiff 00 and the amount at the rate of KRW 5% per annum from the day following the date of the conclusion of the judgment of this case to the day of complete payment (the Plaintiff was added to the conjunctive claim, and the part on the disposal or disposal of the Plaintiff on May 6, 2009 or the claim for the claim shall be claimed, except for the part on May 27, 2009).

2. Purport of appeal

(a)the plaintiff;

The judgment of the first instance shall be modified as stated in the purport of the claim.

B. Defendant

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

1. Basic facts

(a) the amount in arrears of the BB against the Plaintiff;

1) On June 21, 2007, BB entered into a sales contract between the EE industry, Co., Ltd., Ltd. to sell for 000 won the ownership or ownership right of 00 won and 9 parcels, the only property of which is the purchase price (hereinafter referred to as “instant sales contract”), and completed the registration of transfer of ownership in the name of EE industry, Co.,, Ltd. with respect to the instant real property, after receiving sales payment on January 30, 2009.

2) The BB did not pay the capital gains tax from the sale of the instant real estate after filing the final return on May 31, 2010, and the head of the budget office imposed capital gains tax of KRW 000 on the BB on August 31, 2010. At the time of the instant lawsuit, the amount in arrears by the BB at the time of the instant lawsuit is equivalent to KRW 00,000, including the amount in arrears as follows:

(b) disposal of the real estate purchase price of the BB;

1) On December 15, 2008, BB transferred 000 won of the down payment of the instant sales contract to an account in the name of EGG, a parent, through a licensed real estate agent EF, to the account in the name of EG, and transferred 00 won on the same day to the Defendant under its own name.

2) The BB deposited 00 won of the intermediate payment of the instant sales contract into the account in the name of the GG upon receipt of the check on January 9, 2009.

3) On January 30, 2009, EOO received the remainder of 000 won for the instant transaction, and paid 000 won for the national bank account (Account Number: 000) in the name of Yellow H on the same day, and 000 won for the account in the name of this GG, 000 won for the account in the name of this GJ, 000 won for eJ account, 000 won for this JJ account, 00 won for this KK account, and 00 won for eM account with 00 won for eM account, and 000 won for eM account, and 00 won for the defendant account with eM account, and eOO and oOO with a face value of 00 won for its face value.

4) On February 2, 2009, EO returned KRW 00 out of the above KRW 000 deposited in the account under the name of this GG, and remitted KRW 00 to the Defendant under his own name.

5) This BB released KRW 000 from the above national bank account under the name of Yellow H on February 2, 2009, and deposited KRW 000 in another national bank account (Account Number: 000) in the name of Yellow H opened on the same day, and on February 5, 2009, transferred KRW 000 out of the remainder 00 to the Defendant account, and terminated the above national bank account (Account Number: 000) in the name of Yellow H on February 9, 2009.

6) On February 9, 2009, 000 won was deposited in the account under the name of HaH in the above G name.

7) The BB deposited each of the KRW 00 on February 11, 2009, KRW 000 on February 12, 2009, and KRW 00 on March 2, 2009, respectively, with the account in the name of the formerN (employee of the company operated by the Defendant) known by the Defendant.

8) On May 6, 2009, Yellow H cancelled another national bank account under one’s name and deposited KRW 000,000 out of which was deposited, and remitted KRW 000 to the account under the name of this BB, the former part of this BB, and this DNA remitted KRW 000 out of the above KRW 00 to the Defendant on May 7, 2009.

C. The relationship between the BB and the Defendant

On August 1, 2005, the Defendant established the right to collateral security (hereinafter “instant right to collateral security”) with a maximum debt amount of 000 won with respect to ownership or right to share of the instant real estate among the instant real estate, and cancelled the registration of collateral security on January 30, 2009.

[Based on Recognition] Gap evidence 1 to 11 (if available, including each number, hereinafter the same shall apply), Eul evidence 3 and 4, Eul witness of the first instance court, and Eul witness of the first instance court, and the purpose of the whole testimony and arguments of thisD

2. The parties' assertion

A. The plaintiff

1) In the first place, BB sold the instant real estate, which is one of its sole property, received 000 won from the sales price, deposited into an account under the name of another person, such as thisG, etc., and transferred cash in its name, or by transferring the account through another person’s account in the name of another person, to the Defendant through a bank account transfer in the name of another person. The Defendant was obligated to pay 00 won to the Defendant as a collateral security (on February 2, 2009, KRW 00, KRW 000, and KRW 000 on February 11, 2009, KRW 00 on March 2, 2009, and KRW 100,000 on May 7, 2009, and KRW 100,000 on May 7, 209). Meanwhile, the BB had not been active at the time of each of the above donation, but had not been obliged to pay the remainder to the Plaintiff as a collateral security (B00).

2) Preliminaryly, this BB donated 00 won to the Defendant on May 7, 2009, and (i) on February 2, 2009, 000 won, and 000 won on February 5, 2009, and 11, 2000 won on February 11, 2009, and 200 won on March 2, 2009, and (ii) on May 6, 2009, donated 00 won to D, and this D donated 00 won to the Defendant on May 7, 2009. Ultimately, the Defendant was obligated to return 0 won to the Defendant, and the Defendant was obligated to return 00 won to 00 won, and the Defendant was obligated to return 00 won to 300, and thus, the Defendant was obligated to return 100 won to 300, and the Defendant was obligated to return 400 won to 00.

B. Defendant

1) The Plaintiff, and around February 14, 201, known that there was an act of disposal of property between EO and the Defendant on February 11, 2009, KRW 000, and KRW 000 on February 12, 2009, and KRW 000 on March 2, 2009, while submitting an application for alteration of the purport of the claim to the first instance court on April 5, 2012, the Plaintiff sought revocation of the act of disposal of each of the above property and restoration thereof, and the part of the lawsuit in this case seeking revocation of the act of disposal of each of the above property and restoration thereof shall be dismissed as it is unlawful with the exclusion period.

2) The part of the above total amount of KRW 000 as of February 2, 2009, when the plaintiff sought cancellation, was repaid with the debt, and the part of KRW 000 as of February 5, 2009 was received from the aboveB, but this BB was not insolvent at the time of each of the above property disposition, and KRW 00 in total from February 11, 2009 to March 2, 2009 was exchanged with the above 00 won, and KRW 00 in cash, and KRW 00 was received as debt repayment, and KRW 00 on May 7, 2009, the above part was mixed with the above BB, and was leased to the defendant under the pretext of consolation money, and the defendant was not aware of the above 200 won as of February 5, 200, and the above 200 won was not known to the defendant at the time of the above property disposition.

3. Determination

A. Determination as to the legitimacy of the part of the instant lawsuit seeking the disposition of each of the property as of February 11, 2009, and February 12, 2009, and on March 2, 2009, and restitution thereof.

1) For the purpose of exercising the right of revocation, "the date when the obligee becomes aware of the cause for revocation" means the date when the obligee became aware of the requirements for the right of revocation, i.e., the date when the obligor becomes aware of the fact that the obligee had committed a fraudulent act if he knows that the obligee would prejudice the obligee, and it is insufficient to simply say that the obligor's act of disposal of the property is an act detrimental to the obligee, and that, in other words, it is not possible to fully satisfy the claim because the legal act is deficient in the joint security of the claim or the joint security in the situation where the obligor has already failed to meet the claims, and further, it is necessary to inform the obligor that the obligor had an intention to harm (see, e.g., Supreme Court Decision 2003Da40286, Dec. 12, 2003); while the limitation period and the burden of proof as to the obligee's act of disposal is also the other party to the revocation lawsuit (see, e.g., Supreme Court Decision 2007Da631026, Mar.

2) Considering the following facts: (i) the Plaintiff was 0B 1 and 12, and (ii) around February 14, 201, the Plaintiff was 1 and 0. The Plaintiff was 00,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,00 won for 20,000 won for 20,000 won for 20,00 won for 20,00 won for 20,000 won for 20,00 won for 20,000 won for 20,00 won for 20,000 won for 20.

B. Judgment on the merits

(i)phones of preserved claims;

A) A claim that can be protected by the obligee’s right of revocation should, in principle, be derived before an act that can be seen as a fraudulent act was committed. In addition, when the obligee exercises the obligee’s right of revocation, in principle, the obligee’s right of revocation may not be exercised in excess of its claim amount, and at this time, the obligee’s claim amount includes interest or delay damages incurred after the fraudulent act was concluded and the obligee’s claim amount includes, and at the same time, additional dues and increased additional dues provided for in Articles 21 and 22 of the National Tax Collection Act are the incidental tax imposed in terms of interest on the unpaid portion where national taxes are not paid by the due date, and when national taxes are not paid by the due date, the amount naturally occurs under Articles 21 and 22 of the same Act without the final procedure of the obligee’s right of revocation, and the transfer income tax includes additional dues and increased additional dues arising from the time when the claim is closed at the trial court after the fraudulent act (see, e.g., Supreme Court Decisions 200Da37821, Mar. 2365, 2007

B) In light of the above legal principles, since the health team, and the BB sold the instant real estate to the EE industry on June 21, 2007 and received any balance on January 30, 2009, as seen earlier, the capital gains tax liability was established on January 31, 2009, and the BB filed the said final return of capital gains tax on May 31, 2010, the date of the final return was determined on May 31, 2010, and the BB’s property disposition against the Defendant was continued from February 2, 2009 to May 7, 2009, and therefore, the capital gains tax liability was already established at the time of each of the above property disposition, and accordingly, the Plaintiff’s capital gains tax credit, including additional dues, and 418,69280 won, and 30 won shall be the creditor’s right of revocation.

2) Determination as to whether the BB’s insolvency and fraudulent act Ghana

(1) In order to constitute a fraudulent act, the debtor's act of disposing of the property should be reduced in the whole property of the debtor, and the debtor's small property should be more than the active property, and in the case where the debtor has engaged in several continuous disposal of property, and in the case where the debtor has engaged in several continuous disposal of property, it should be determined whether the whole series of acts are dead or not, and whether each act causes insolvency (see, e.g., Supreme Court Decision 2002Da23857, Sept. 24, 2002). Meanwhile, it cannot be said that the property which the debtor concealed at the time of the fraudulent act or the creditor could not easily find for compulsory execution, should be excluded from active property as it determines the insolvent (see, e.g., Supreme Court Decision 74Da1947, Feb. 24, 1976).

(2) We examine the instant case in light of the aforementioned legal principles.

According to the above facts, this part of the purchase price received by BB from the sale of the instant real estate through the account in the name of Y, and the amount deposited into the account in the name of YG can be seen as active property of B. In addition, in light of the following circumstances recognized by taking into account the following circumstances, the 7th of 5-proof, and the 3-2 of OO witness’s testimony and arguments, and the 1st island witness OO’s partial testimony and arguments, this B did not contribute the real estate purchase price to Y, but was holding the real estate purchase price to each national bank account in the name of Y, so the amount deposited into each national bank account in the name of Y 00, 200, 2000, and 200, 000,000,000,000,000 won, and 20,000,000,000 won, out of 20,000,000,000.

(B) the property status of the BB;

The financial status of BB as of the date of each of the instant property disposal activities shall be as follows, taking into account the facts not disputed between the parties, Gap evidence Nos. 3, and Eul evidence Nos. 3 through 5 (including each number), and as of the date of each of the instant property disposal activities, the financial status of BB shall be as follows:

(B) The omission of the property status of BB

C) Determination on the part of KRW 000 on February 2, 2009

According to the facts found above, BB's active property at the time of February 2, 2009 is 000 won and 0000 won, so it cannot be viewed as a fraudulent act because B's active property does not fall short of the debt, or it is difficult to view B's insolvency was caused by the act of disposal of the property at the time of 2000 won, and the Plaintiff filed the lawsuit in this case and filed a claim 00 won out of 00 won against B's obligation guaranteed by this case with 300 won under the premise that the Defendant received repayment of the debt against B's obligation guaranteed by this case from 200 won, and the Plaintiff did not seek reimbursement from 200 won under the premise that 200 won was not repaid to the Defendant on February 21, 2013.

D) Determination made on February 5, 2009 00 won

According to the facts found above, the active property of B at the time of February 5, 2009 is 000 won, and the small property is 0000 won, so it is difficult to view the small property as a fraudulent act because B did not have positive property, and it is difficult to view that BB was in excess of its obligation or caused insolvency due to the act of property disposal.

E) (State Claim) Determination on the part of KRW 1000 on May 7, 2009

It is reasonable to view BB and DoD as consolation money from the account under the name of PH on May 6, 2009 that the above 00 won transferred from the account under the name of PD to the account under the name of PD in consideration of the following circumstances, i.e., the marital relationship between EO and DoD for 28 years, and the agreement between EOB on March 18, 2009, and ii) there is no fact that EBB has divided DoD into BB under the name of division of property or consolation money, etc.

F) Determination on the part 00 won between BB and D on May 6, 2009 (Preliminary Claim)

(1) In divorce, division of property, at the same time, contributes to the maintenance of the other party’s livelihood at the time of liquidation and distribution of the actual common property that the married couple had, but at the same time, division may be possible including the nature of the benefit to compensate for mental damage (deficial material) incurred by divorce by the other party’s act. In determining the amount and method of division, considering the amount of the property achieved through mutual cooperation between the parties and other circumstances is apparent under Article 839-2(2) of the Civil Act. Thus, even if the division of property is insolvent, the amount and method of division can be determined including the amount of the debt already borne by the husband and the amount of the division, and whether the division has contributed to the formation of the common property, and even if the division of property becomes insolvent by the division of property and reduces joint security for the general creditor, such division of property may not be deemed reasonable contrary to the purport of Article 839-2(2) of the Civil Act, and the amount and method of the property division is limited to 208, unless special circumstances exist.

(2) In light of the above legal principles, the above 00 won transferred to the account under the name of DoD on May 6, 2009, which was transferred to DoD on 200 won by DoB from the above transfer of DoD to DoD was a divorce benefit due to the divorce. On the other hand, the following circumstances revealed through the above facts, i.e., active property of BB at the time of the divorce payment, 00 won, and 000 won, and BB's active property had already been in excess of DoD's obligation, and DoB's active property is most of the purchase price of the real property acquired during the marriage with DoD, and DoB's obligation to pay transfer income tax is also subject to consideration at the time of liquidation, and DoB's obligation to pay transfer income tax is more reasonable than DoB's claim to DoB's property division without any legal nature of DoB's claim for divorce (see Supreme Court Decision 20020Da2971, supra.).

(3) Meanwhile, as seen earlier, the Defendant acquired KRW 000 out of KRW 000,000, out of the amount of the divorce benefit of this case from DoD, the beneficiary, and the Defendant constitutes a subsequent purchaser who again acquired KRW 000,000 from DoD, the beneficiary.

(4) 이에 대해 피고는 이DD의 요청에 따라 2010. 4. 7. 이DD로부터 받은 000원 중 000원은 편II이 이BBB를 사기죄로 고소한 사건의 합의금을 대신 지급하는 방식으로 변제하였다고 주장하므로 살피건대， 을 제1， 2호증(가지번호 포함)의 각 기재， 제1심 증인 이DD의 일부 증언에 변론 전체의 취지를 종합하여 보면，피고가 운영하는 회사의 직원 전NN 명의 계좌에 2010. 3. 23.부터 같은 해 4.6.까지 피고의 처인 정PP 내지 피고가 운영하는 청정식품 명의로 합계 000원이 입금 되었다가， 같은 해 4. 7. 000원이 정QQ의 계좌로 이체된 사실， 2010. 4.경 편무 송이 이BBB에 대한 형사고소 사건(대전지방검찰청 서산지청 2010형제864호 사기)에서 이BBB와 원만히 합의가 성립되었다는 이유로 고소취하서를 제출한 사실， 제1심 증인 이 DD는 자신이 피고에게 편II이 이BBB를 사기죄로 고소한 사건의 합의금으로 000원을 지급하라고 요청하여 피고가 이를 지급하였다고 진술한 사실을 인정할 수 있고，위 인정사실에 비추어 보면， 피고는 이DD로부터 받은 000원 중 000원을 이DD의 요구에 따라 편II이 이BBB를 사기죄로 고소한 사건의 합의금을 대신 지급하는 방법으로 이DD에게 반환한 것으로 보인다. 따라서 전득자인 피고 와 수익자인 이DD 사이의 재산처분행위는 이 사건 소 제기 이전에 위 000원의 범위에서 소멸하였다고 보는 것이 타당하다.

3) The intention of the BB to prejudice, etc.

As seen earlier, in light of the fact that the instant real estate, the only property of which BB is the instant real estate, was sold, and most of the sales price was made by using the purchase price to repay debts or to donate debts to the Defendant, and that the 2/3 price of active property was paid to BD despite the liability to pay capital gains tax pursuant to the instant real estate disposition, and that BB was aware that the instant divorce benefit constitutes a fraudulent act, and the Defendant’s bad faith, the beneficiary, and the subsequent purchaser, is presumed to be the Defendant’s bad faith.

4) Defendant’s bona fide defense

In a lawsuit seeking revocation of a fraudulent act, the evidence submitted by the defendant alone does not bear the burden of proving that the beneficiary or subsequent purchaser is in bad faith, but is liable to prove that the beneficiary or subsequent purchaser is acting in good faith (see Supreme Court Decision 2007Da18218, Jul. 12, 2007). In recognizing that the beneficiary or subsequent purchaser was acting in good faith at the time of the fraudulent act, objective and apparent evidence, etc. must be supported, and it should not be readily concluded that the subsequent purchaser was acting in good faith only with the unilateral statement of the debtor or a statement that is merely a third party (see Supreme Court Decision 2006Da5710, Apr. 14, 2006). As such, the evidence submitted by the defendant alone is insufficient to reverse the above presumption and recognize the defendant's good faith, the defendant's defense is without merit.

(v) the method and scope, etc. of restitution;

As seen earlier, the divorce benefits in this case between BB and DD constituted a fraudulent act, and the above fraudulent act constitutes a payment of money, the restitution should be made by means of return of value. The scope of revocation should be limited to KRW 000,000 remaining until now, except for the part already extinguished before the instant lawsuit among the act of disposal of property between the Defendant and DD, which is the subsequent purchaser, and the beneficiary, the subsequent purchaser. Therefore, the divorce benefits in this case between BB and DD, which is the beneficiary, should be revoked within the limit of KRW 00, and the Defendant is obliged to pay the Plaintiff 00 and the damages for delay at the rate of KRW 5% per annum as stipulated in the Civil Act from the day following the date the judgment in this case became final and conclusive to the day of full payment.

4. Conclusion

Therefore, the part of the lawsuit in this case, which is concluded between BB and the defendant, is unlawful for the cancellation of each gift contract of 00 won on February 11, 2009, 000 won on February 12, 2009, and 000 won on March 2, 2009, and for restoration thereof, which is concluded between BB and the defendant, shall be dismissed, and the remainder of the plaintiff's main claims reduced in the trial shall be dismissed, and the remainder of the conjunctive claims added in the trial shall be cited within the above recognized scope, and the other conjunctive claims added in the trial shall be dismissed without any justifiable reason. However, the judgment of the first instance shall be dismissed, and the plaintiff shall be dismissed with the defendant's appeal of 00 won on February 11, 200, and the remainder of the plaintiff's claim for additional reimbursement between BB and the defendant on February 12, 2009, and the remainder of the plaintiff's claim for additional reimbursement of 300 won on February 20, 20009.