Busan District Court-2013-Gohap-46866 ( March 27, 2014)

It is insufficient to deem that there was a mutual agreement with the defendant to grant the remittance amount or property profit equivalent to such amount to the defendant ultimately reverted to the defendant.

It is insufficient to deem that there has been a mutual agreement with the defendant to grant the amount of remittance or property profit equivalent to such amount to the defendant ultimately reverted to the defendant, and there is no other evidence to acknowledge it otherwise.

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

2014Na52780 Revocation of Fraudulent Act

Plaintiff, Appellants

Korea

1. AA 2. BB

Busan District Court 2013Kahap46866

June 4, 2015

July 23, 2015

1. The plaintiff's appeal and the supplementary selective claims in the trial are all dismissed.

2. The costs of the lawsuit after the appeal shall be borne by the Plaintiff.

The judgment of the first instance court shall be revoked. Alternatively, the contract on donation between Defendant AA and CCC on April 12, 2010 shall be revoked; Defendant AA shall pay the Plaintiff 247,819,970 won with 5% interest per annum from the day following the day when the judgment of this case becomes final and conclusive to the day of full payment; Defendant BB and CCC shall be revoked within the limit of 257,410,250 won with interest of 257,410,250 won, and Defendant BB shall pay the Plaintiff 257,410,250 won with 5% interest per annum from the day following the day when the judgment of this case becomes final and conclusive to the day when full payment is made; or the Defendants shall jointly and severally pay the Plaintiff 257,401,250 won with 250% interest per annum and 25% interest per annum from April 12, 2010 to the day when full payment is made.

(A) The Plaintiff initially sought revocation and restitution of fraudulent act against the Defendants, and subsequently, at the trial of the Party, selected the claim for return of unjust enrichment subrogated to CCC on the ground that each of the instant transfers was null and void).

1. Basic facts

(a) Relationship between the Parties

AAA is the third child of CCC, and BB is the spouse of DD, the second child of CCC.

B. Assignment of the instant real estate

CCC transferred 1,811,280,000 square meters (hereinafter “instant real estate”) to II III on March 29, 2010 to 1,810, and completed the registration of ownership transfer in the second III on April 5, 2010.

(c) money transfers to CCC;

CCC received 71,686,560 won of the transfer price of the instant real estate from II III on April 12, 2010 and transfers each money to the account under the name of the Defendants as shown in the attached list (e.g., this).

De 'each remittance of this case' was called 'each remittance of this case'.

D. The Plaintiff’s taxation claim againstCC

CCC did not report and pay capital gains tax on the transfer of the instant real estate. On September 11, 2012, the chief of the JJ Tax Office under the Plaintiff’s jurisdiction determined and notified the CCC of the payment deadline of capital gains tax of KRW 223,339,630 on September 30, 2012. As of July 201, the amount added to the said capital gains tax is KRW 251,480,280.

On the other hand, on the other hand, on November 16, 2009, the notice of the payment deadline to the CCC on May 31, 2010 was determined and notified as the payment deadline, and the gross real estate holding tax amounting to 4,934,170 won for the year 2009 was determined and notified. As of July 2013, the sum added to the global income tax is 5,920,970 won.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 4, 9 (if there are provisional numbers, including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The plaintiff asserts selectively as follows.

1) At the time of each remittance of the instant case, the Plaintiff had a claim of KRW 257,40 in total real estate tax amounting to KRW 5,920,970 (including additional tax) and KRW 251,480,280 in total (including additional tax) and KRW 257,401,250 in total, but CCC transferred KRW 247,819,970 to the account in the name of Defendant AAA, the Plaintiff, while in excess of the obligation, and KRW 368,946,590 in total to the account in the name of Defendant BB, the Plaintiff, as the Defendant BB.

The above money was donated, which constitutes a fraudulent act and thus must be revoked within the scope of KRW 257,401,250 of the Plaintiff’s preserved claim. Defendant AA is obligated to recover to the original state, and Defendant BB is obligated to pay to the Plaintiff KRW 247,819,970 and delay damages. Defendant BB is obligated to pay the Plaintiff KRW 257,401,250 and delay damages.

2) At the time of each remittance of the instant case, CCC had no capacity to act, and thus, each remittance of the instant case is null and void. The Defendants acquired the amount equivalent to the above remittance without any legal cause. Accordingly, the Plaintiff, a creditor of CCC, sought a return of unjust enrichment against the Defendants by subrogation of the insolvent CCC within the scope of KRW 257,401,250, which is the Plaintiff’s claim amount.

B. Defendant’s assertion

1) Of the instant remittance, CCC’s active assets of CCC were not in excess of the Plaintiff’s obligation until the remainder transfer act except for the remittance act that CCC transferred to the Agricultural Cooperative account under Defendant BB’s name (************************; hereinafter “instant agricultural bank account”), and Defendant CB did not know that the instant agricultural bank account was actually used by Defendant BBD and was transferred to the said account, and thus, Defendant CCC was not in excess of the Plaintiff’s obligation. In addition, Defendant CB did not know that the instant donation was made between Defendant CCC and the Plaintiff, even if it was not known that the instant transfer was made to the said account.

2) It cannot be deemed that CCC had the capacity to perform its duties at the time of the instant remittance. Since CCC and the Defendants did not have any gift act, the Plaintiff’s claim for return of unjust enrichment is unreasonable.

3. Determination on the revocation of fraudulent act and the claim for restitution

(a)the existence of preserved claims;

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 seen as a fraudulent act in principle, it is highly probable that at the time of such fraudulent act had a legal relationship that has already been based on which the claim was established, and that a claim should be established in the near future because it is realizing in the near future, such claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 201Da76426, Feb. 23, 2012). Since comprehensive real estate holding tax against CCC on November 16, 2009, the transfer of each of the instant remittance of this case, was determined and notified, the transfer income tax was determined and notified on September 11, 2012, and the transfer income tax was determined and notified, but it is highly probable that the Plaintiff was actually liable to pay the transfer income tax on the last day of the month in which the transfer income tax was established in the near future.

In addition, the additional dues under Articles 21 and 22 of the National Tax Collection Act are the kind of incidental dues imposed as a meaning of interest in arrears if national taxes are not paid by the due date, and if national taxes are not paid by the due date without the due date of payment by the due date, it naturally occurs under Articles 21 and 22 of the National Tax Collection Act (see Supreme Court Decision 2006Da66753, Jun. 29, 2007) and its amount is determined accordingly (see Supreme Court Decision 2006Da66753, Jun. 29, 2007). Since it is highly probable that the above additional dues claims are based on the legal relations in the near future, it shall be established in the near future, so the Plaintiff’s comprehensive real estate holding tax against CCC including the additional dues and capital gains tax amounting to 251,480,280,257,401,250 won in total

B. Whether each remittance of this case constitutes a fraudulent act

1) Evaluation of each remittance of the instant case

The plaintiff asserts that, in determining whether CCC's transfer of money constitutes a fraudulent act, a series of acts that CCC remitted money to the defendants should be evaluated as a single gift act.

In case where a debtor continuously disposes of several properties, in principle, it shall be judged whether each act causes insolvency. However, if there are special circumstances to regard a series of acts as a single act, it shall be determined whether a series of acts as a whole. Whether there are such special circumstances is identical to the other party to the disposition, whether each disposition is close to time, whether the other party to the disposition and the debtor are specially related, and whether the motive or opportunity of each disposition is the same. However, even in cases where there are no special relations, such as where each act is conducted in connection with each other in a series of legal processes to achieve the same purpose, it shall not be evaluated as a single act without permission by expanding the scope thereof (see, e.g., Supreme Court Decision 2013Da3874, Jul. 25, 2013).

With respect to the instant case, remittance to Defendant AB is different from remittance to the other party, and the purpose of remittance is different, and there is no particular evidence to deem that there is any special circumstance to evaluate each of the above remittance acts as a whole as a single fraudulent act, each of the above remittance acts should be evaluated separately. However, considering the fact that each of the above Defendants’ four-time remittance acts is identical to the other party of the remittance, each of the above Defendants was committed at the same time, and each of the remittance acts was committed at the same time as the receipt of the purchase price of the instant case, it is reasonable to evaluate each of the above remittance acts by each of the above Defendants as a single act.

2) The CCC’s financial status at the time of the instant remittance.

A) Active property of CCC

Comprehensively taking account of the overall purport of evidence Nos. 3 and 5, CCC’s deposit claims of KRW 771,686,560 against FG cooperatives as of April 12, 2010 and the market price of KRW 30,000,000,000, Busan EE-dong 915,000,000.

B) Small property of CCC

According to the facts as seen earlier and the evidence evidence No. 5, CCC at the time of each transfer of the instant case, it can be recognized that CCC had assumed the liability of KRW 30,00,000 with respect to LL, which is the total real estate holding tax amounting to KRW 5,920,970, and capital gains tax amounting to KRW 251,480,280, and KRW 257,401,250.

3) Whether the remittance to Defendant A constitutes a fraudulent act

Since a fraudulent act refers to an act detrimental to the creditor by causing the debtor to go beyond his/her obligation or deepening the fact that he/she had already been in excess of his/her obligation by reducing active property or increasing his/her negative property, a certain act should be premised on the fact that such an act resulted in the above situation (see, e.g., Supreme Court Decision 2000Da7783, Oct. 25, 2002).

According to the above facts, CCC had positive property equivalent to KRW 801,686,560 at the time of each of the instant remittances (=771,686,560 + KRW 30,000 + KRW 30,000). On the other hand, the negative property is limited to KRW 287,401,250 + + KRW 30,000,000. Ultimately, CCC transferred KRW 247,819,970 to Defendant AA four times, even if the positive property was transferred to Defendant A more than 4 times, the positive property did not reach an excess of its liability.

Therefore, since the remittance to Defendant AA cannot be deemed as a fraudulent act, the Plaintiff’s assertion based on this premise is without merit.

4) Whether the remittance to Defendant BB constitutes a fraudulent act

A) In order for a remitter to have concluded a donation contract with respect to money remitted to the account of the account holder in the name of the deposit, it shall be interpreted that, first of all, the remitter and the account holder have objectively reverted the money so remitted to the account holder in the name of the deposit, and the donation and grant of the money without compensation is ultimately attributable to the account holder, and that there exists a mutual agreement between the parties on the donation and grant of the money free of charge. The burden of proof in relation thereto lies in the Plaintiff who

Meanwhile, in the event of a transfer of money to another person’s deposit account, the remittance may be made based on various legal causes. The mere fact that a person with a certain personal relationship knowingly consented or understood to transfer money to his/her own deposit account to avoid tracking of a taxation authority, etc., or to allow him/her to actually control his/her own deposit account for such purpose, barring any special circumstance, it cannot be readily concluded that there was an agreement between the remitter and the account holder that the remittance amount would be granted free of charge to the account holder, as above, barring any special circumstance. This cannot be readily concluded that, in the case of a deposit account opened through a real name verification procedure under the Real Name Financial Transactions Act, the account holder has the right to claim the return of the deposit as a party to the deposit account, even if the account is related to the financial institution with which the account was opened, and thus, the legal relationship between the remitter and the account holder does not immediately change (see Supreme Court Decision 2012Da30861, Jul. 26, 2012).

B) The facts that CCC remitted 368,946,590 won, including the last remittance to Defendant BB’s account. According to the evidence No. 2, the total amount of KRW 13,300,000 from the instant agricultural bank account to the other accounts in the name of Defendant BB after the instant final remittance is transferred to 13,30,000 won, and the transfer of various premiums was made to the MF or NN, etc. On the other hand, in light of the Plaintiff’s statement No. 2 through 5, 13, and 13, the Plaintiff’s testimony of the first instance court witness DB, the total amount of KRW 10,50,50,000, which was 00,000 from the instant financial account, was 10,000,000,000 won, which was 10,0000,000,000 won, which was 10,000,000 won.

4. Determination as to the claim for return of unjust enrichment

Only based on the results of the statement No. 6, Eul's evidence, and the fact-finding on the OOOOO and PPPP by the court of the first instance, it is insufficient to recognize that CCC had a state of office capacity at the time of each remittance of this case, and there is no other evidence to acknowledge it. Thus, the plaintiff's above assertion is without merit without need to further examine.

5. Conclusion

Therefore, the plaintiff's claim of this case against the defendants is dismissed in its entirety as it is without merit, and the judgment of the court of first instance is just in its conclusion. Thus, the plaintiff's appeal and the plaintiff's claim for return of unjust enrichment selectively added in the trial are dismissed in its entirety as it is without merit. It is so decided as per Disposition.