Revocation of fraudulent act by spouse donation;

The donation of this case should be revoked as a fraudulent act unless there is no evidence to acknowledge the fact that the building was acquired by lending the name.

Article 30 (Cancellation of Fraudulent Act)

1. The agreement on the donation of October 10, 2003 between the defendant Jong-ju0 and Kim 00 (**********************) is revoked within the limit of KRW 186,00,00.

2. The plaintiff shall pay to the plaintiff 186,00,000 won, the amount of 52,000,000 won, and the amount of 50% per annum from the day after the day when the judgment of this case became final to the day of complete payment.

3. The plaintiff's remaining claims against the defendant U20 are dismissed.

4. Of the costs of lawsuit, the part arising between the plaintiff and the defendant 100 shall be borne by the above defendant, and 1/3 of the part arising between the plaintiff and the defendant 00 shall be borne by the above defendant and the remainder shall be borne by the plaintiff

The contract as of November 10, 200 between the defendant Jeong-tae and Kim 00 is revoked within the limit of KRW 186 million. The defendant Jeong-tae shall pay to the plaintiff KRW 186 million, and the defendant Jung-tae shall pay to the plaintiff the amount of KRW 140 million out of the above amount, KRW 140 million out of the above amount, and the amount of KRW 140 million from the day after the judgment of this case became final to the day of full payment.

1. Basic facts

A. Nonparty Kim 00 is delinquent in national taxes on or around June 16, 2005 as follows.

Sub-Items :

Deadline for payment

This tax

Additional Dues

June 16, 2005

Time of Reversion

Liability for Tax Payment

Date of establishment

Transfer Income Tax

February 28, 2005

563,424,00 won

37,185,960 won

on October 2003

October 31, 2003

B. On November 10, 2003, Kim 00 owned the real estate listed in the separate sheet (hereinafter “the instant building”), and concluded a donation contract on the instant building (hereinafter “the instant donation”) with Defendant Jongyang-si, Seoul District Court No. 111441, Nov. 11, 2003, concluded the ownership transfer registration on the ground of the instant donation (hereinafter “the instant ownership transfer registration”).

C. As of May 13, 2003, the registration of the establishment of a mortgage (hereinafter “the establishment of a mortgage”) was completed on the building of 00 bank, 91 million won with the mortgagee as of May 13, 2003, and 19 million won with the debtor Kim 00, and the establishment of a mortgage (hereinafter “the establishment of a mortgage”) was completed on the same day as of September 20, 2004 by paying 70 million won with the amount of the secured debt until September 20, 2004 and cancelling the above registration. The establishment of a mortgage (hereinafter “the establishment of a mortgage”) was completed on the same day with the mortgagee, 24 million won with the debtor Kim 00,000 won, and 24 million won with the establishment of a mortgage (hereinafter “the establishment of a mortgage”) of 30 million won with the defendant U.S. under the registration office as of December 10, 2004.

D. At the time of the instant donation by Kim 00, Kim 00 was insolvent, and the instant building was the only property of Kim 00.

E. At the time of the closing of argument in the instant building, the market value is equivalent to 256 million won.

F. Meanwhile, Defendant 100 is the spouse married on May 31, 1995 and Defendant 00 is the father of Kim 00.

[Ground of recognition] In the absence of dispute, Gap's evidence 1, 2, Gap's evidence 3-1 to 7, Gap's evidence 4, Gap's evidence 5-2, Gap's evidence 7, Eul's evidence 3 to 5, Eul's appraisal result by the appraisal appraisal corporation of the appraiser company, Eul's whole purport of pleading

2. As to whether the obligee’s right of revocation is exercised:

A. As to the establishment of fraudulent act

(1) The debtor's act of transferring his sole property to another person without compensation under insolvent constitutes a fraudulent act against the creditor, barring special circumstances. In such a case, the debtor's intent of deception is presumed to be a fraudulent act against the creditor, barring any special circumstances. According to the aforementioned legal principles and the facts acknowledged earlier, the gift in this case constitutes a fraudulent act and is presumed to be the intention of lapsing Kim0

(2) Defendant 10 asserts that “Defendant 100 lent the name of Kim 00 and acquired the instant building. The owner of the instant building is Defendant 100. The instant donation asserts to the effect that “The instant donation was made in the course of returning ownership to the legitimate owner, and does not constitute a fraudulent act.”

Therefore, there is no evidence to acknowledge whether Defendant 100 has acquired the instant building by lending the name of Kim 00. The above assertion by Defendant 100 is not accepted.

(3) Therefore, the gift of this case must be revoked as a fraudulent act unless there are special circumstances (However, the scope of revocation shall be limited to the scope of return of value as acknowledged later).

B. As to the defendants' bona fide defense

(1) Defendant 100 asserted to the effect that the instant gift constitutes a fraudulent act, and the Defendant U.S. U.S. 00 leased the automobile maintenance business office located in 00-00,000,000,000,000,000 won as the lease deposit, around October 2004. Defendant U.S. 00 paid KRW 200,000,000,000 out of the above deposit to Kim 00. Defendant U.S. 00 entered into the third collateral security contract of this case to secure the obligation to return the lease deposit, and completed the third collateral security registration of the instant case with Defendant U.S. 00. Accordingly, Defendant U.S. 00 did not know at all that the instant gift would prejudice the Plaintiff’s claim.

(2) In a lawsuit seeking revocation of a fraudulent act, the beneficiary or subsequent purchaser bears the burden of proof to the beneficiary or subsequent purchaser that the beneficiary or subsequent purchaser was unaware of the fraudulent act, and in recognizing that the beneficiary or subsequent purchaser was bona fide at the time of the fraudulent act or the subsequent purchase, it shall be based on objective and acceptable evidence, etc., and it shall not be concluded solely on the basis of the unilateral statement of the debtor, the beneficiary, and the subsequent purchaser or the subsequent purchaser, or on the basis of a statement that is merely a third party.

In the instant case, it is difficult to acknowledge the Defendants’ defense on the following grounds: (a) there was no evidence to acknowledge the fact that the Defendant had been unaware of the fact that the instant donation constituted a fraudulent act at the time of the instant donation; and (b) whether the Defendant had been unaware of the fact that the instant donation constituted a fraudulent act at the time of the instant third collateral mortgage contract; and (c) there was insufficient evidence to acknowledge the fact that the Defendants had been unaware of the fact that the instant donation constituted a fraudulent act. Therefore, the Defendants’ defense is without merit.

3. Regarding the scope of revocation by exercising the creditor's right of revocation and the method of restitution

A. Partial revocation of a fraudulent act and the legal principle of compensation for value

In the event a legal act regarding real estate constitutes a fraudulent act, the court should order the revocation of the fraudulent act and the cancellation of the registration of the transfer of ownership. However, in the event of a fraudulent act with respect to real estate on which the establishment of the right to collateral is established, such fraudulent act is established only within the extent of the balance obtained by deducting the secured debt amount from the value of the real estate. If the court revokes the fraudulent act and issues an order to restore the real estate itself in the situation where the establishment of the right to collateral was cancelled by the repayment after the fraudulent act, etc., it would result in a violation of equity and equity by ordering the recovery of the portion which was not the initial creditors’ joint security. Accordingly, the court should order the subsequent purchaser to cancel the fraudulent act and compensate for the balance equivalent to the amount of the secured debt within the extent of the balance obtained by deducting the secured debt amount from the value of the right to collateral security at the time of the closure of the right to collateral security.

B. The scope of revocation of the gift of this case and the scope of compensation for the value of the defendants

(1) At the time of the donation of this case, the registration of creation of the No. 1 of this case was cancelled with the maximum debt amount of KRW 91 million (70 million as the secured debt amount) and the registration of creation of the No. 2 of this case with the maximum debt amount of KRW 24 million was completed on the same day. Defendant U.S. 00 completed the establishment of the No. 3 of this case with the maximum debt amount of KRW 140 million following the donation of this case. The fact that the market value of the building of this case is KRW 256 million at the time of the closing of argument of this case is recognized as above.

According to the above facts of recognition, it is reasonable that the defendants' restoration due to the cancellation of the gift of this case should be done by the method of return of value, and therefore, it is reasonable to view that the gift of this case should be revoked within the scope of return of value to be borne by the defendant 10

(2) Next, the scope of the gift of this case to be revoked as a fraudulent act and the scope of compensation for value to be borne by Defendant 100.

From 256 million won, which is the market price of the building of this case, the remainder after deducting 70 million won as the secured debt amount of the registration of creation of a neighboring mortgage of this case No. 1 from 256 million won is 186 million won. However, the above amount is within the scope of KRW 563,424,00 as principal tax among national tax bonds held by the Plaintiff against Kim 00. Therefore, the donation of this case shall be revoked within the scope of KRW 186,000,000,000,0000,000 won, which is the restoration of the original state to the Plaintiff. Defendant Y0 is liable to compensate

(3) Next, we examine the scope of the value that Defendant U20 should pay for.

From 256 million won at the market price of the building of this case at KRW 256 million, the remainder after deducting 24 million from the secured debt amount of KRW 24 million for the registration of the establishment of the second neighboring mortgage of this case. However, the above amount is within KRW 186 million after deducting 70 million for the secured debt amount of the registration of the establishment of the first neighboring mortgage of this case from the market price of the building of this case at KRW 256 million. However, the above amount is within the scope of KRW 186 million for the remainder after deducting 70 million for the secured debt amount of the registration of the establishment of the first neighboring mortgage of this case at KRW 30,000 for the secured debt amount of the registration of the establishment of the third neighboring mortgage of this case, and KRW 563,424,000 for the principal tax among the national tax claim of the plaintiff against KRW 100. Accordingly, the defendant U.S. has the obligation to compensate the plaintiff for the above KRW 52 million and the obligation

4. Conclusion

Thus, the plaintiff is obligated to pay the above amount to the plaintiff 186 million won, and the defendant 10 million won to the defendant 52 million won and 5% interest per annum from the day following the day when the judgment of this case became final and conclusive to the day of complete payment. Thus, the plaintiff's claim against the defendants is accepted within the above recognition law with merit, and the remainder is dismissed as there is no ground.