Revocation of Fraudulent Act

(1) The transfer of claims to the disposal of assets and the disposal of assets in excess of obligations constitutes a fraudulent act.

Article 406 of the Civil Act

Daejeon District Court Decision 2015Gahap102494 Revocation of Fraudulent Act

Korea

Use Transmission

June 17, 2016

July 8, 2015

1. (a) The claim assignment contract concluded on March 20, 2012 between the Defendant and AA and BB shall be revoked within the scope of KRW 580,00,000.

B. The defendant shall pay to the plaintiff 580,000,000 won with interest rate of 5% per annum from the day following the day this judgment became final and conclusive to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order of the Gu office.

1. Basic facts

A. The Defendant, with the husband of the Daejeon District Court on February 28, 2012, was sentenced to an incompetent in Daejeon District Court Decision 201Hu936 Decided 28, 2012. The Defendant was sentenced to an incompetent in the Daejeon District Court on February 28, 2012.

B. At the time of March 20, 2012, the Plaintiff had a total of KRW 5,06,08,550 national tax claim against AA as shown in attached Table 2 Table 1. At the time of March 20, 2012, the Plaintiff had a total of KRW 5,76,648,260 as listed in attached Table 2, as shown in attached Table 2.

D. On May 21, 2008, AA and BB sold to CCC each real estate listed in attached Form 3 (ownership of shares AA 3/5 and shares 2/5) (hereinafter referred to as “each of the instant real estate”) owned by it to purchase 2.2 billion won (a contract amount of KRW 200 million, balance of KRW 2 billion).

E. On May 23, 2008, the CCC completed the registration procedure for ownership transfer on each of the instant real property. However, CCC did not pay a balance of KRW 50 million to AA and BB out of the purchase price. On the other hand, CCC decided to substitute for the payment of the balance by taking over a loan of KRW 800 million against the Korea Exchange Bank from AA and BB, and Kim 3- on July 24, 2008 to take over a loan of KRW 30 million against the Korea Exchange Bank from AA and BB, which was agreed to take over by the U.S., 30 million out of KRW 80 million against the Korea Exchange Bank from the Korea Exchange Bank from the Korea Exchange Bank from the Korea Exchange Bank from AA to the Korea Exchange Bank from KRW 30 million.

F. On March 20, 2012, AA and BB transferred to the Defendant a claim of KRW 580,000,000,000,000,000,000 in total, and KRW 3,000,000,000,000,000,000,000,000 won in lieu of Korea Exchange Bank (hereinafter the above claim of KRW 580,00,00,00,000,000,000,000,000,000) and notified the Defendant of the assignment of the claim on

G. On December 21, 2012, the Defendant filed a lawsuit against CCC to seek payment of the instant claim (this Court Decision 2012Gahap2784), and was rendered a favorable judgment on December 21, 2012. Although CCC appealed on the judgment of the first instance (Seoul High Court 2013Na308), the Daejeon High Court revoked the part on delay damages in the judgment of the first instance, and dismissed the appeal of CCC on the instant claim portion, the principal of which is the instant claim. CCC appealed appealed on the said judgment of the appellate court, but withdrawn the appeal on June 12, 2015, and accordingly, the said judgment of the appellate court became final and conclusive.

H. On September 15, 2013, when the said lawsuit is pending, the CCC deposited KRW 5,80,000,000 for the deposited person as the Defendant and the deposited person as the surety for the suspension of compulsory execution. On July 3, 2015, the Defendant received KRW 5,80,000,000 from the deposited person on July 3, 2015. The fact that there is no dispute over the grounds for recognition, Gap’s evidence 1 through 5, and Eul’s evidence 1 (including the serial number; hereinafter the same shall apply), the purport of the entire pleadings, and the purport of the whole pleadings.

2. Summary of the parties' arguments

A. The plaintiff's assertion

AA and BB were in excess of the obligation at the time of the instant transfer contract, and concluded the instant transfer contract with the Defendant to avoid the Plaintiff’s delinquency in national tax, thereby constituting a fraudulent act. As such, BBB concluding the instant transfer contract on behalf of the Defendant, on behalf of the Defendant, whose awareness was unknown at the time of the instant transfer contract, was aware of the aforementioned facts. Accordingly, as a fraudulent act, seeking compensation for the value of the instant claim KRW 580,000,000,000, as the cancellation and restitution of the instant transfer contract.

B. Defendant’s assertion

The Defendant, at the time of the acquisition of each of the instant real estate by AA and BB, was the actual owner of approximately KRW 470 million out of the purchase price, and held title trust of the said shares in the name of 2/5 of the instant real estate. AA and BB sold each of the instant real estate to CCC around May 21, 2008, and transferred the instant claim to the Defendant by the title trustee to the Defendant in the process of acquiring each of the instant real estate under a title trust agreement, merely because BB (the title trustee) returned the amount equivalent to the Defendant’s contribution in the process of acquiring each of the instant real estate to the Defendant, the title truster, by performing a duty to return the real estate under a title trust agreement,

3. Determination

A. Determination on the cause of the claim

1) Formation of preserved claims

As seen in the above basic facts, the Plaintiff had the national tax claim of KRW 526,008,550 against AA at the time of the instant transfer of claims, and the national tax claim of KRW 376,648,260 against BB at the time of the instant transfer of claims.

2) Fraudulent act

In full view of the purport of the entire pleadings as seen earlier, given that the instant claim was the only property of AA and BB at the time of the instant transfer of claims, the instant transfer of claims constitutes a fraudulent act, barring any special circumstance.

B. According to the statement in the evidence evidence Nos. 2 through 4 regarding the Defendant’s assertion on title trust, the fact that BB used considerable portion of the Defendant’s money in the process of acquiring shares of 2/5 of each of the instant real estate by BB. However, solely on such circumstance alone is insufficient to recognize that BB and the Defendant entered into a title trust agreement on shares of 2/5 of each of the instant real estate, and there is no other evidence to acknowledge

Therefore, the defendant's above argument is without merit.In conclusion, it is without merit.

The instant contract for the assignment of claims shall be revoked within the scope of KRW 580,000,00 as the Plaintiff seeks. Meanwhile, the Defendant received KRW 580,000,000 deposited by CCC after the transfer of the instant claims, and received KRW 580,000,000,000,000 for the instant claim. As such, restitution following the cancellation of the instant contract for the assignment of claims shall be made by the Defendant as a means of compensation for the value that the Defendant pays KRW 580,00

Therefore, the contract for the assignment of claims of this case is revoked, and the defendant is obligated to pay to the plaintiff 580 million won and the damages for delay at the rate of 5% per annum as stipulated in the Civil Act from the day following the day when the judgment is finalized to the day of full payment

4. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.