If a debtor in excess of his/her obligation pays part of his/her active property to a specified creditor, it constitutes a fraudulent act.

The act of paying part of the active property to a specific creditor while the debtor in arrears of national taxes exceeds his/her obligation constitutes a fraudulent act against the taxation right holder.

Article 30 of the National Tax Collection Act: Revocation and Restoration of Fraudulent Act

2016Na59605 Revocation of Fraudulent Act

1. Korea;

1. YellowA;

December 2, 2017

on October 02, 2017

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The agreement between the defendant and the non-party B on the division of inherited property concluded on May 18, 2015 with respect to 2/9 of each real estate listed in the separate sheet shall be revoked. The defendant will implement the procedure for the transfer registration of ownership based on the restoration of real name with respect to 2/9 of each real estate listed in the separate sheet to the non-party B.

2. Purport of appeal

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

1. Basic facts

A. As of July 1, 2014, the Plaintiff has a taxation claim of KRW 86,747,180 under Article 12 of the National Tax Collection Act against Nonparty B, a representative director ofCC, and oligopolistic shareholder of the said company.

B. Each real estate listed in the separate sheet (hereinafter referred to as “instant real estate”) had completed the registration of ownership transfer in the name of the deceased DoD, the father of this BB. However, on May 18, 2015, the agreement on the division of inherited property (hereinafter referred to as “agreement on the division of inherited property of this case”) was concluded on May 20, 2015 with the purport that the Defendant would succeed to the instant real estate by controlling the real estate after the death of the deceased DoD, and the Defendant completed the registration of ownership transfer on May 20, 2015 due to the inheritance due to the division.

C. Meanwhile, at the time of the instant agreement on the division of the inherited property, BB owned an equity share of KRW 13,072,00 in addition to the inheritance shares (2/9) relating to the instant real property as active property, while it was in excess of the debt due to the Plaintiff’s burden of tax liability of KRW 86,747,180.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 12, purport of the whole pleadings

2. Determination

A. Establishment of fraudulent act

The agreement on the division of inherited property is to confirm the reversion of inherited property by either having all or part of the inherited property owned by each inheritor separately or implementing it with a new co-ownership relationship with respect to which provisional co-inheritors have already commenced, and thus becomes subject to the exercise of the right to revoke a fraudulent act. Meanwhile, the debtor's act of selling and selling real estate which is one of the sole property of the co-inheritors and replacing it with or transferring it to another person without compensation constitutes a fraudulent act against the creditor, barring any special circumstances. Thus, even if the joint security against the general creditor has decreased by giving up his/her right to the inherited property upon consultation on the division of inherited property, it constitutes a fraudulent act against the creditor in principle (see Supreme Court Decision 2007Da29119, Jul. 26, 2007). In light of these legal principles, it is difficult for the debtorB to waive his/her inheritance shares (2/9) against the instant real property and let the debtorB, who is in excess of his/her debt, acquire it by agreement on the division of inherited property in this case, to the general creditor.

B. Judgment on the defendant's argument

The defendant asserts that the agreement on the division of inherited property of this case does not constitute a fraudulent act, since the defendant lent a large amount of money, such as KRW 60 million on July 25, 2013, and KRW 50 million on August 11, 2014, to B, he/she, who he/she is son, to son.

However, the evidence submitted by the Defendant alone is insufficient to recognize the fact that the Defendant had a loan claim against the BB at the time of the agreement on the division of the inherited property in this case, and even if it is assumed that the Defendant had a loan claim against the BB as alleged by the Defendant, the act of transferring active property to some of creditors among the creditors may, in principle, constitute a fraudulent act in relation to other creditors, unlike the case where the obligor pays the debt to a certain creditor (see Supreme Court Decision 2007Da2718, Sept. 30, 2010), unlike the case where the obligor pays the debt to a certain creditor (see Supreme Court Decision 2007Da2718, Sept. 30, 2010). The same legal principle applies to the case where the Defendant was transferred the inheritance shares of BB among the instant real property as the repayment of the loan claim against the BB

(c) Methods of revocation of fraudulent act and reinstatement;

Therefore, the agreement on the division of inheritance shares of the BB among the instant real estate shall be revoked as a fraudulent act, and the Defendant is obligated to implement the registration procedure for the transfer of ownership due to the recovery of the authentic title date of this judgment, as sought by the Plaintiff, instead of cancelling the registration for the transfer of ownership with respect to shares 2/9, which are the inheritance shares of the BB among the instant real estate.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit.