Korea

Defendant 1 and one other (Law Firm Jeong, Attorneys Gyeong-soo et al., Counsel for the defendant-appellant)

may 3, 2011

1. A. The contract of donation amounting to KRW 310,00,000 entered into on May 26, 2008 between Defendant 1 and Nonparty (resident registration number omitted) shall be revoked.

B. Defendant 1 shall pay to the Plaintiff 310,000,000 won and 5% interest per annum from the day following the day this judgment became final to the day of complete payment.

2. A. The contract of donation of KRW 130,00,000 entered into on June 16, 2008 between Defendant 2 and Nonparty (resident registration number omitted) shall be revoked.

B. Defendant 2 shall pay to the Plaintiff 130,000,000 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 plaintiff's remaining claims against the defendants are dismissed.

4. The costs of lawsuit shall be borne by the Defendants.

If damages for delay are excluded from seeking damages for delay from the final date of the judgment of this case, the disposition is as follows.

1. Determination on this safety defense

The plaintiff asserted that the contract of donation of KRW 310,00,000 between the defendant 1 and the non-party on May 26, 2008, and the contract of donation of KRW 130,000,000 between the defendant 2 and the non-party on June 16, 2008 between the defendant 2 and the non-party on June 16, 2008 was a fraudulent act, and as to the lawsuit of this case against the defendants who are the beneficiary, seeking the return of each of the above money as the cancellation and restitution of each of the above contract, the plaintiff had extensive information as the state, so the defendants could have known the fact of the transaction of the non-party and the defendants immediately after the above contract of gift was made. However, since the plaintiff filed the lawsuit of this case on August 31, 2010 after one year from the above transaction date,

However, in the exercise of the obligee's right of revocation, the "date when the obligee becomes aware of the cause for revocation" means the date when the obligee becomes aware of the requirements for the obligee's right of revocation, i.e., the date when the obligee becomes aware of the fact that the obligor had committed a fraudulent act with the knowledge that it would prejudice the obligee. In order for the obligee to be aware of the cause for revocation, the mere fact that the obligor was aware of the act of disposal of the property is insufficient, and further, it is necessary to know the fact that the obligor was aware of the existence of specific fraudulent act and that the obligor had the intent to deceive the obligor, and the burden of proof as to the lapse of the period for exclusion lies in the other party to the lawsuit seeking revocation (see Supreme Court Decision 2007Da63102, Mar.

In the instant case, it is difficult to view that the Plaintiff was aware of the existence of fraudulent act at the time of each gift contract, and there is no other evidence to acknowledge it otherwise. Rather, comprehensively taking account of the overall purport of the pleadings in each of the evidence Nos. 1, 3, and 4 (including the serial number), the head of Silsi Tax Office affiliated with the Plaintiff (hereinafter “Silsi Tax Office”) issued a notice of payment of capital gains tax to the Nonparty on September 8, 2008 and December 1, 2008, and the Vice Director of the Central District Tax Office requested the provision of information to the financial institution in order to collect taxes that the Nonparty would not pay taxes, and the Non-Party received the relevant financial transaction information from the National Bank of Korea on March 31, 2010, the National Bank of Korea on April 22, 201, and the Agricultural Cooperatives Federation on May 6, 201 of the same year, it appears that the Nonparty transferred part of the land expropriation amount and the money deposited in the name of the Defendants.

2. Judgment on the merits

(a) Basic facts;

1) The Plaintiff’s taxation claim against the Nonparty

On April 14, 2008, the Nonparty: (a) was admitted to the Korea National Housing Corporation (hereinafter “instant land expropriation”); and (b) was paid KRW 565,50,270 on May 9, 2008 by the Korea National Housing Corporation for the acquisition of public land; (c) the Nonparty received the payment of KRW 565,50,270 for land compensation from the Korea National Housing Corporation; (d) the Nonparty notified the Nonparty to pay KRW 82,505,823 of the transfer income tax to the Nonparty by November 30, 2008 on the ground that the said reporting was not recognized; and (e) the Nonparty notified the Nonparty of the payment of KRW 257,96,006 for the transfer income tax as the said reporting was not made until January 31, 2009. The Nonparty did not pay the said amount until now, and the amount in arrears was as follows:

본문내 포함된 표 세 목 귀 속 납부기한 체납세액 종합부동산세 2007년 2008. 6. 4. 5,794,690원 양도소득세 2008년 2008. 11. 30. 120,623,150원 양도소득세 2008년 2009. 1. 31. 370,997,830원 합 계 ？ ？ 497,415,670원

2) Financial transactions between the Nonparty and the Defendants

On May 26, 2008, the Nonparty remitted KRW 310,000,000 to Defendant 1’s bank account (Account Number 1 omitted). On June 16, 2008, the Nonparty transferred KRW 130,000,000 to Defendant 2’s deposit account (Account Number 2 omitted) in his/her wife.

[Reasons for Recognition] A without dispute, Gap evidence 1 through 6 (including the number of each branch number), Eul evidence 1-1 to 3, Eul evidence 1-2, non-party witness's testimony, significant facts in this court, the purport of the whole pleadings

B. Whether a gift contract exists

1) In general, a juristic act is defined as a “legal requirement that sets forth an expression of intent aimed at creating a certain legal effect as a requisite element,” and a donation refers to a contract formed by one of the parties to give a certain property to the other party without compensation and by the other party’s consent pursuant to the Act on Real Name Financial Transactions and Confidentiality. In the event that a deposit contract is entered into through a real name verification procedure pursuant to the Act on Real Name Financial Transactions and Confidentiality, the deposit title-holder shall be deemed as a party to the deposit contract and the deposit title-holder shall be deemed as a party to the deposit contract regardless of who actually contributed the fund (see, e.g., Supreme Court Decision 200

2) The Nonparty transferred KRW 310,000,00 on May 26, 2008 to Defendant 1’s bank account (Account Number 1 omitted). The fact that the Nonparty transferred KRW 130,00,000 on June 16 of the same year to Defendant 2’s deposit account (Account Number 2 omitted) in his own account is as seen above, and the Nonparty transferred KRW 130,00,00 on May 16, 208 to Defendant 2’s deposit account (Account Number 2 omitted). In full view of the written evidence No. 1-2, No. 1-2, No. 1-2, and No. 1-2, and the Nonparty’s testimony, Defendant 1 following the real name verification procedure, and Defendant 2, May 16, 2008, was acknowledged.

According to the above facts, there is no evidence to prove that the non-party expressed his/her intent to transfer the above money to the defendant's bank account that the ownership of the above money or the right to claim the return of deposit in relation thereto belongs to the defendants, and there is no other evidence to prove that there was a mutual agreement between the non-party and the above national bank and the above national bank to vest in the non-party's right to claim the return of deposit in his/her name. The defendants agreed that he/she would have the right to claim the return of ownership or the deposit in relation to the money deposited to the above

3) Therefore, in light of the above circumstances, the non-party's act of remitting KRW 310,00,000 to Defendant 1 on May 26, 2008 and KRW 130,000,000 to Defendant 2 on June 16, 2008 can be deemed as a juristic act that donated the above money to the defendants. Even if the non-party withdrawn the above deposit with the defendants' deposit passbook and seal, it can be deemed that the non-party permitted the disposition of his right to claim the return of his deposit, including the money received from the non-party, to the non-party, and it does not interfere with the recognition of the above donation portion (the agreement between the non-party and the defendants as a means of avoiding financing or compulsory execution from the non-party company to lend the deposit account in the name of the defendants to the non-party and the defendants, even if the financial transaction between the non-party and the defendants becomes null and void as a mutual agreement, the non-party's act of revocation of false labelling does not affect the above judgment.

C. Whether a fraudulent act is established

(i) A preserved claim;

Although it is required that a claim that can be protected by the obligee’s right of revocation has arisen prior to the commission of an act that can be viewed as a fraudulent act in principle, it is highly probable that at the time of the fraudulent act, there has already been legal grounds for the establishment of the claim, and that the claim should be established in the near future in the near future, and where a claim has been created due to the realization of the probability in the near future, such claim may also become a preserved claim (see Supreme Court Decision 2007Da21245, Jul. 15, 2010, etc.).

In the instant case, since comprehensive real estate holding tax against the non-party is owned tax and its tax base date was June 2007, it can be deemed that the tax claim had already been established prior to the Defendants’ gift act. Furthermore, the date when the liability to pay capital gains tax on the land expropriation of this case was established is July 30, 2008 when the scheduled return period expires. The non-party did not pay capital gains tax within the said period and notified the non-party of the transfer income tax by the payment deadline to the non-party by November 30, 2008 and January 31, 2009. Although the non-party’s donation to Defendant 1 and Defendant 2 was made on May 27, 2008 and June 16, 2008, it is probable that the non-party’s transfer income tax claim was established based on the Plaintiff’s transfer income tax claim’s ownership transfer income tax claim against the non-party’s real estate on which the land expropriation procedure of this case was already completed and the non-party’s transfer income tax claim was established in the future.

2) Fraudulent act

A) Generally, a fraudulent act refers to an act that causes damage to the creditor by causing the debtor to go beyond his/her obligation or deepening the fact that the debtor has already been in excess of his/her obligation by reducing his/her active property or increasing his/her negative property (see, e.g., Supreme Court Decision 2000Da7783, Oct. 25, 2002). In cases where the debtor donated his/her property to another person in excess of his/her obligation, such act constitutes a fraudulent act and is presumed as the beneficiary’s intention (see, e.g., Supreme Court Decision 2006Da11494, May 11, 206)

B) Donation to Defendant 1 by the Nonparty

In full view of the statements in Gap evidence Nos. 1 through 5 and 7 (including the number of each branch number), and the purport of the whole pleadings in the testimony of the non-party witness, the non-party at the time of May 26, 2008 recognized that as of May 26, 2008, the non-party had the deposit claim of KRW 310,50,270, and KRW 976,075, which appears to have been consumed by the non-party among the compensation for the land as active property, and KRW 551,476,345, which was withdrawn from the above community credit cooperative on May 9, 2008 by the non-party, including the deposit claim of KRW 240,00,000,000, and KRW 343,832,239,239, gross real estate holding tax + KRW 3,30,401 + KRW 82,505,823,06,06).

According to the above facts, it is reasonable to view that the non-party donated KRW 310,00,000 to Defendant 1, who was a wife in excess of his liability, and in light of the relationship between the non-party and Defendant 1, and the purpose of the non-party’s donation, etc., the non-party knew that the non-party would harm the plaintiff at the time of the donation. Thus, it is presumed that the non-party’s bad faith is presumed that the non-party 1’s bad faith is presumed, barring any special circumstance, the

C) Donation to Defendant 2 by the Nonparty

In full view of the above evidence, it is recognized that the Nonparty’s active property at the time of June 16, 2008 was merely the deposit claim of KRW 150,500,270, which appears to be remaining after the Nonparty consumed out of the above land compensation and the deposit claim of KRW 976,075 against community credit cooperatives, and that the Nonparty was in excess of the obligation.

According to the above facts, in light of the relationship between the Nonparty and Defendant 2, and the purpose of donation, the donation of KRW 130,000,000 to Defendant 2 in excess of the debt is a fraudulent act against the Plaintiff, the creditor, barring special circumstances, and the intention of the Defendant 2, the beneficiary, is presumed to have been expressed. Therefore, the Plaintiff may exercise the right of revocation against the Defendant 2, the beneficiary, and seek restitution thereof.

D. Determination as to the defendants' defense

The Defendants could not have predicted the fact that the Plaintiff’s taxation claim against the Nonparty was due to the Plaintiff’s non-party, so the Defendants asserted to the effect that they were bona fide, but there is no evidence to acknowledge this. Therefore, the Defendants’ aforementioned defense is without merit.

(e) Revocation of fraudulent act and reinstatement;

Ultimately, the contract of donation against the Defendants of the Nonparty should be revoked as a fraudulent act, and the amount donated by the Defendants should be restored to its original state. In addition, in the case where a creditor files a lawsuit against multiple beneficiaries seeking revocation of a fraudulent act and restitution, the judgment ordering revocation of a fraudulent act and restitution to its original state shall be rendered upon the creditor’s claim. The same applies to the case where the sum of the sum of the value of the property subject to restitution to be borne by the beneficiaries exceeds the creditor’s preserved claim amount. As of May 3, 201, the date of the conclusion of the argument of this case, the Plaintiff’s claim amount against the Defendant is at least 427,274,350 won, and each donation act against the Defendants of the Nonparty within the above scope is revoked. Defendant 1 is obliged to pay damages for delay to the Plaintiff at the rate of 5% per annum from the next day after the date of the conclusion of the judgment, which is at least 427,270,000,000 won, and damages for delay from the date of restitution to the Plaintiff’s.

3. Conclusion

Therefore, each claim against the Defendants against the Plaintiff is accepted within the scope of the above recognition, and each remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Yoon Jong-su (Presiding Judge)

1) According to Article 105 (1) 1 of the Income Tax Act and Article 94 (1) 1 of the same Act, capital gains tax shall file a voluntary report within two months from the last day of the month in which the transfer date belongs. As seen later, the transfer registration of ownership was made on April 14, 2008 with respect to the real estate listed in the separate sheet, and the land compensation was paid on May 9, 2008 as seen earlier. Thus, when the transfer date is deemed to be the date of receipt of the above compensation, the preliminary return period shall be from May 31, 2008 to July 30, 2008.