Busan District Court Decision 2013Gahap8433 ( October 14, 2014)

The cash donation contract of this case constitutes a fraudulent act exceeding the reasonableness as a division of property.

In full view of all the circumstances, including the marriage period between KimA and the defendant, the degree of contribution to the increase of the defendant's property, and the grounds for divorce, it is reasonable to view that the reasonable extent of division of property against the defendant following the divorce between KimA and the defendant is to the extent of 244,04,514 won (=36,066,71 won x 2/3) of the entire property.

Article 839-2 (2) of the Civil Act

2014Na2031675 Revocation of Fraudulent Act

It is to judge whether the contract of cash donation is unconstitutional in light of the legal principles of division of property.

A) Relevant legal principles

Division of property following divorce is liquidation of common property formed through mutual cooperation between the parties during marriage.

In the light of the institution which has the nature of support to the other party in the light of the fact that it has the nature of support;

The debtor who is in the state has transferred a certain property to his spouse by division of property while divorced.

As a result, the reduction of the joint security for general creditors, as a result,

Division of property exceeds a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act.

be revoked as a fraudulent act unless there are special circumstances that may be deemed to have been excessive

, if there is a special circumstance to consider that it exceeds the reasonable degree, such excess

Part may be subject to revocation as a fraudulent act (Supreme Court Decision 2000Da2000 delivered on July 28, 2000).

1. The property division of the debtor at the time of the division of property, etc.

Whether it is reasonable or not shall be determined in accordance with the general principles of division of property under Article 839-2 of the Civil Act.

division of property by weighing and balancing between the interests of one of the divorced parties and the interests of creditors;

In the relationship with the creditor of the divided person, the relationship between the divided person and the creditor should also be considered (Supreme Court)

See Supreme Court Decision 2005Da74900 Decided September 14, 2006

B) Whether the cash donation contract of this case exceeded the reasonableness as a division of property

First, in this case, health for positive and negative property subject to division of property:

Gap evidence 6-1 to 19, Eul evidence 3-1, 3, Eul evidence 5, Eul evidence 6-1, 2, 9,

Notes 10, Eul evidence 11-1, 2, Eul evidence 13-1 through 25, Eul evidence 14, 15, and 16, respectively.

In full view of the witness KimA’s testimony in the first instance trial, the cash in this case

Deposit in the name of KimA at the time of donation contract, commodity price claim against a trader, the land of this case

Real estate as well as real estate is formed through the projects of KimA while married with the defendant.

The facts that are property, and most debts incurred by KimA including the instant tax liabilities

Since it is also recognized that the project funds of KimA or the obligation under the pretext of purchasing apartments, it is also recognized;

The affirmative property of KimA is a common property formed through mutual cooperation with the defendant, and KimA

Petty property shall be deemed a debt accompanied by the process of forming common property of both spouses: Provided, That it is reasonable to view it as a debt.

In light of the overall purport of the pleadings in the testimony of the witness KimA of the first instance court, KimA

The obligation described in the attached Form 2. (1) through (3) and (8) among the loan obligations shall be joint life of the married couple.

The fact that it is a special obligation used for personal purposes, such as entertainment, regardless of the daily life, is a special obligation.

As such, this cannot be included in a small-sized property subject to division of property. On the other hand, prior thereto.

In full view of the facts and the purport of the entire argument, the defendant at the time of entering into the cash donation contract

There seems to be no positive or negative property of the couple under the name of the husband and wife. Accordingly, there is no such property.

Property subject to division of property shall be 366,066,771 won (=affirmative property 1,424,474,61 won

-Small-sized property 1,182,125,109 – (Korean Personal Debt 9,608,327 Won + 30,000,000 +

49,99,218 won + 34,109,724) shall become 49,99,218 won

Next, regarding the scope of division of property, before the pleadings on the aforementioned facts

(1) The active property of KimA, which is recognized in full view of the purpose of the body, is:

most of them are formed or acquired in the course of a sustained marriage for about 20 years with the Defendant.

In the process, the defendant's contribution to the formation of property seems to be significant (the witness of the first instance court)

According to the testimony of KimA, the circumstances in which the defendant directly attempted to work at the place of business of KimA.

(2) After consultation with the KimA, the Defendant has reached an agreement with the 393,50,000 won donated by the KimA.

It appears that all of the apartment housing of this case will be used as the purchase fund for the apartment of this case.

(3) According to the witness KimA of the first instance court's testimony, the defendant has been divorced.

(4) The cash donation contract of this case is a cash donation contract of this case.

Until the time, KimA's active property was somewhat superior to the negative property, and (5) The plaintiff

Transfer Income Tax Claim in a Tax Claim shall be disposed of in the course of marriage of the land acquired by KimA.

As a result, tax liability should also be taken into consideration when the marriage is liquidated.

Marriage period between KimA and the defendant, degree of contribution to the defendant's property increase, details of divorce, etc.

Comprehensively taking account of all the circumstances, in balancing the Plaintiff’s claims amount, KimA and the Defendant

The reasonable extent of division of property against the defendant following divorce shall be 2/3 of the total property.

244,044,514 won (=366,066,771 won 】 2/3) should be deemed reasonable.

3) Therefore, the instant cash donation contract is deemed to have a substantial extent as division of property.

244,044,55,486 won exceeding KRW 244,514 (=393,50,000 - 244,044,514) A fraudulent act

applicable to this section.

D. Determination as to the defendant's bona fide assertion

As to the part exceeding the reasonableness of division of property among the cash donation contract of this case

Although it did not know that it constitutes a fraudulent act, it is alleged to the effect that it is a bona fide beneficiary.

There is no evidence to acknowledge the defendant's good faith. The defendant's above assertion is without merit.

(e) Scope of cancellation and reinstatement;

The Plaintiff’s amount of preserved claim is 371,512,790, as seen earlier, and therefore, the instant case

Cash donation contract is the lesser of 149,455,486 won recognized prior to the amount of the preserved credit.

149,455,486 shall be revoked as a fraudulent act within the limits of KRW 149,45,486, and any subsequent restitution;

For this purpose, the defendant shall pay the plaintiff the above 149,455,486 won and the confirmation of this decision

Damages for delay calculated at the rate of 5% per annum under the Civil Act from the day after the due date to the day of full payment.

have an obligation to pay.

4. Conclusion

The plaintiff's claim of this case is justified within the scope of the above recognition, and the remainder of the claim

the judgment of the court of first instance shall be dismissed on the ground that there is no reason to do so. The judgment of the court of first instance shall be dismissed in part

Therefore, the defendant's appeal partially accepted and the judgment of the first instance is modified as above. It is so ordered as per Disposition.

The decision shall be rendered as above.

Korea

ParkB

Busan District Court Decision 2013Gahap8433

March 5, 2015

April 2, 2015

1.The judgment of the first instance shall be modified as follows:

A. The contract of cash donation between the defendant and KimA shall be revoked within the limit of KRW 149,455,486.

B. The defendant shall pay to the plaintiff 149,45,486 won with 5% interest per annum from the day following the day when this judgment became final and conclusive to the day of complete payment. The remaining claims of the plaintiff are dismissed.

2. The total costs of the lawsuit shall be five minutes, and such three minutes shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

Attached Form 1. The cash donation between the defendant and KimA shall be made in the same manner as the statement in the remittance details.

The contract shall be revoked within the limit of KRW 371,512,790. The defendant shall pay to the plaintiff KRW 371,512,790.

The rate of 5% per annum from the day after this judgment becomes final and conclusive to the day of full payment.

pay the calculated amount of money.

2. Purport of appeal

In the judgment of the first instance court against the defendant, the part of the judgment against the defendant shall be revoked, and the plaintiff's claim

Each dismissal is dismissed.

1. Basic facts

A. The Plaintiff’s establishment of a taxation claim against KimA

1) On November 2, 2009 and December 16, 2009, when KimA had been engaged in the non-ferrous metal manufacturing business under the trade name ofCC metal, he was notified of the imposition of comprehensive income tax equivalent to KRW 11,985,720, respectively. 2) KimA did not report the transfer income tax even after it transferred the land of ○○-ri ○○-○ and three other lots of land (hereinafter referred to as “this case”) on October 20, 2009 to ○○, and the head of the tax office affiliated with the Plaintiff notified KimA of the imposition of KRW 317,864,310, the transfer income tax amount on January 4, 2013, which was at the time of the filing of the instant lawsuit, as follows:

B. Transfer of money to the defendant by KimA

1) On January 13, 198, KimA, after completing the marriage report with the Defendant on January 13, 1988, continued the marital life, and submitted an application for confirmation of intention of divorce with the Incheon District Court ○○○ 2009○ on October 15, 2009.

2) On October 30, 2009, the Defendant purchased 439,000,000 apartment units of ○○○-dong, ○○-dong, ○○-dong, (hereinafter “instant apartment units”) from D around D around October 30, 209 in order to have a residential place to live together with his/her children while liquidationing the marital life with KimA, and on December 15, 2009, with respect to the instant apartment units.

The registration of ownership transfer is completed in name.

3) The apartment of this case between October 22, 2009 and December 14, 2009 by KimA

The purchase price shall be stated in attached Form 1. In addition to four times, such as the statement in the details of remittance.

Transfer of 393,500,000 won (part, at the defendant's request, direct remittance to Gao-E, a wife of D)

(hereinafter referred to as "transfer of the money of this case").

4) On January 25, 2010, Defendant and KimA completed a divorce report.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1, Gap evidence 2-1, 2, Gap evidence 3, 4, Eul No. 1, 5

Each entry of evidence, part of witness KimA of the first instance trial, the purport of the whole pleadings

2. The parties' assertion

A. Summary of the plaintiff's assertion

The remittance of the instant money is based on the cash donation contract between KimA and the defendant.

The excess of the obligation of KimA has become worse. Accordingly, the said cash donation contract, including the Plaintiff, has become more worse.

Since it constitutes a fraudulent act that reduces the joint security of general creditors of KimA, the amount of claims of the plaintiff

shall be revoked and restored to its original state within the extent of

B. Summary of the defendant's assertion

1) At the time of transfer of the instant money, KimA had positive property more than negative property, and thus, in excess of debt.

There was no state.

2) The transfer of the instant money is a way to divide the property to the Defendant while KimA mixed with the Defendant in consultation with the Defendant.

was made and thus does not constitute a fraudulent act.

3. Determination

A. The premise for judgment

Where a debtor continuously disposes of several properties, in principle, such acts are performed by each act.

Although it is necessary to determine whether or not the cause of insolvency has occurred, it is necessary to determine whether or not the cause of insolvency;

Where there are special circumstances to regard a series of acts as a single act, it shall be collectively held.

It shall be determined as to whether the whole is a harming nature, and whether there are such special circumstances

Whether the other party to the disposition is identical, whether each disposition is close to time, and the other party and the debtor.

Comprehensive consideration of whether there is a special relationship, the motive or opportunity for each disposition, etc.

The judgment is to be made (Supreme Court Decision 2005Da7795 Decided July 22, 2005, Supreme Court Decision 2005Da7795 Decided March 27, 2014).

2012Da34740, etc.) On the other hand, the debtor's act of paying money to the beneficiary is a gift.

(2) the debtor and the beneficiary shall be entitled to receive such funds from the debtor and the beneficiary.

Proceedings between the parties with respect to the grant of such grant free of charge to the following persons after they have ultimately reverted thereto;

ought to be interpreted as having been consistent with the rules of law (Supreme Court Decision 2012Da30861 Decided July 26, 2012)

[Reference]

As to the instant case, the following circumstances known by the Health Council and by the above findings of recognition:

The other party who has remitted the money by KimA shall in substance be the defendant (with respect to a third party).

Transfer was made at the request of the defendant), KimA and the defendant, who was the married couple, and KimA.

The Defendant’s purchase of the apartment of this case is 4 times more than two times during the period of the remaining life of the Defendant.

The remittance of money by KimA, the purpose of the transfer of money by the KimA is to lead to a divorce and to the defendant.

the Defendant and his children intended to use the money as the purchase price to establish a house in which they reside.

Comprehensively taking account of the fact that there was a transfer between the defendant and KimA, the amount transferred as above between the defendant and KimA is the defendant.

Inasmuch as it is deemed that there was a mutual agreement with the intention that the instant money will ultimately be reverted, transfers of the instant money.

such legal nature constitutes a gift, and the other party and purpose of the remittance, time-distance, etc. of the remittance

It is reasonable to view it as a series of acts (hereinafter referred to as "the cash donation contract of this case").

Therefore, whether the cash donation contract of this case constitutes a fraudulent act or not shall be the first gold among them.

It will be examined as of October 22, 2009, the time of transfer of the source.

(b) the existence of preserved claims;

1) In principle, a claim protected by the obligee’s right of revocation may be deemed as a fraudulent act.

that such act was committed before such act was committed; however, at the time

There is a legal relationship which forms the basis of establishing a claim, and in the near future such legal relationship.

There is a high probability that the claim is established, and is in fact close to it.

Where a claim has been created due to the realization of such probability in the future, the creditor's right of revocation

The preserved claim can be the preserved claim, and such a legal principle is the same in the case of a taxation claim.

As such, there is no specific imposition at the time of the fraudulent act.

Even if not, there was a basic legal relationship as to the creation of a taxation claim, and the nearest one.

In fact through a series of procedures under a high probability of establishing a claim in the future;

If a taxation claim has been specifically established, such taxation claim is subject to the obligee’s right of revocation.

A preserved claim may become a preserved claim (Supreme Court Decision 2000Da37821 Decided March 23, 2001, Supreme Court Decision 2000Da37821 Decided June 29, 2007)

See Supreme Court Decision 2006Da66753 decided May 1, 200

In addition, pursuant to Article 21 (2) 3 of the Framework Act on National Taxes, income tax to be paid by interim prepayment is paid by interim prepayment.

Upon expiration of the period, and Article 65 (1) of the Income Tax Act shall enter into force from January 1 to June 30, 200

The period is set as the interim prepayment period, on the other hand, income tax on transfer margin of assets.

Payment on the last day of the month in which the amount serving as the tax base occurs (the month in which the transfer date of assets);

The obligation is abstractly established (see Article 21 (2) 2 of the Framework Act on National Taxes).

2) Pursuant to the above legal principles, each taxation claim of the Plaintiff against the Plaintiff KimA as to the instant case.

Each tax liability on the date of establishment of each tax liability, such as the entry in the list as found in the above basic facts.

Among them, each global income tax claim for the year 2009 has been established, the cash donation contract of this case.

The cash in this case was already established before the conclusion of the contract, and the transfer income tax claim for the year 2009 was paid in full.

Transfer income tax claims are already established after the conclusion of a gift contract, but the transfer of assets has been made.

In the near future, a legal relationship which forms the basis of establishment has occurred and the above period of taxation is terminated.

Since the capital gains tax claim has been established, the above capital gains tax claim shall also be preserved

any additional dues as provided in Articles 21 and 22 of the National Tax Collection Act shall be the national tax amount.

If payment is not made by the due date, it shall be imposed in the sense of interest in arrears.

As a kind of incidental tax, a national tax shall be paid by the due date without a final procedure by a taxation authority;

shall be naturally created in accordance with the provisions of Articles 21 and 22 of the National Tax Collection Act, and the amount shall also be

Since it is finalized (see, e.g., Supreme Court Decision 2006Da66753, Jun. 29, 2007).

Tax claims of KRW 371,512,790 against the Plaintiff, including the same additional charges, shall be entirely assessed against the Plaintiff KimA.

The obligee's right of revocation shall be the preserved claim.

(c) The establishment of fraudulent act and the intention of deception;

1) "Act detrimental to the creditor" subject to creditor's right of revocation means an act detrimental to the creditor's right of revocation.

(2) If the debtor's passive property exceeds his/her active property or if the debt is

The term “act” means an act in which the state of excess is added (Supreme Court Decision 2002Da27903 Delivered on August 27, 2002).

Supreme Court Decision 2009Da90047 Decided January 28, 2010, etc.

In this case, Gap evidence 6-1 to 19, Eul evidence 3-1, 3, Eul evidence 9, 10, Eul

Each entry of No. 11-2, Eul evidence No. 13-25, Eul evidence No. 14, 15, and 16, and the first instance trial

In full view of the overall purport of the arguments in the testimony of the witness KimA, the KimA on October 22, 2009, taking into account the overall purport of the arguments.

2. Deposits, real estate, claim for prices of goods, etc. in the name of the person concerned as shown in the attached Table 2 at the time;

A total amount of KRW 1,424,474,611 was owned by themselves, and among the instant tax liabilities

342,195,320 won, including a total of 1,182,125,109 won, shall have been responsible for the obligations of KRW 1,109.

In such circumstances, KimA's contract of cash donation of this case to the defendant

through donation of KRW 393,50,000,000, and as a result, active property shall be KRW 1,030,974,611.

Since the cash donation contract of this case has been reduced and its liabilities have been exceeded, the cash donation contract of this case is eventually KimA.

It constitutes a fraudulent act with knowledge that it would prejudice the general creditors including the plaintiff.

Furthermore, the defendant's bad faith is presumed to be the beneficiary (the plaintiff shall be presumed to be attached to attached Form 2).

The value of each claim for the purchase of goods against the KK, the JJ, and the SongM of the KimA shall be substantially the value of the property.

Although there is no argument that it should be excluded from the calculation of active property, each of the above evidence.

In full view of the purport of the whole, Kim A-A-A-K's ○ 2013

Based on the ○ final judgment, ○○ Won’s claim for the amount of goods and its damages for delay, and the JJ

The purchase-price claim for the goods of ○○ pursuant to the final judgment of the Busan District Court 2004 Gao○○ and

The final judgment of the Incheon District Court 2004Gadan 2004 for the damages for delay claim and SongM

on the basis of the fact that ○○(s) claims for the purchase price of goods and damages for delay have each claims;

The Republic of Korea shall make partial payments from May 2012 to August 2014 to the KimA in part.

The fact that the payment of the goods has been continuously repaid, and the Department of Justice of the Republic of Korea of March 2014

An objection to a payment order to extend extinctive prescription of a claim based on a final judgment

30,000,000 won to KimA between KimA and KimA on October 24, 2014 in the litigation proceedings.

The repayment of installments was voluntarily adjusted (U.S. District Court 2014Na 2014Na) and accordingly on November 2014

30. The fact that KimA has repaid KRW 1,300,000 to such KimA, and SongM has paid the above amount of goods to such KimA.

In 2009, only 20,000,000 Won have been discharged on or around October 200.

Not later than now, while carrying on the business of manufacturing kitchen products with the trade name of WWW, continuing economic activities.

In light of this, the price of each of the above goods of the KimA is recognized.

It is not possible to play a role as a joint security for claims due to the lack of possibility of recovery.

Since it is difficult to conclude that there is no property value, the plaintiff's above assertion can be accepted.

(2).

In addition, the Defendant’s loan claims equivalent to KRW 00 of KimA’s newS, and PP, a trader.

○ Claim for the Payment of Goods to the Board, ○ upon a final and conclusive judgment on ParkB and the delay thereof.

Damages claim shall also be included in the active property of KimA at the time of entering into the cash donation contract of this case.

Since it is disputed to the purport that the KimA claims against the newS and PP.

Eul evidence No. 4-1 to 5, Eul evidence No. 8-1, 2, and Eul, consistent with the facts that it had

Each entry of No. 12 in the evidence is hard to believe with warm, and there is no other evidence to prove otherwise;

According to the statement in Eul evidence 3-2, KimA shall have jurisdiction over ParkB by the District Court of Incheon.

204.Along on the final judgment of 2004, ○○ and its late payment damages claims are owned.

The facts are recognized, but the above evidence and evidence No. 8-2 and part of the witness KimA of the first instance trial.

In full view of the purport of the entire pleadings in the testimony, the facts that the case was initiated with no pleading, and ParkBB

On December 19, 2006, while engaging in the non-ferrous metal manufacturing business with the trade name of TT precision, closed the business.

The fact that the tax is delinquent, that the KimA has not a lot from the time when the above executive titles were established.

The principal and interest of the debt from ParkB, even before the date of the closing of the party hearing with the passage of time, shall be fully repaid.

Then, GinA became final and conclusive as to Park B-B accommodation.

The sole reason for the fact that the above bonds have bonds based on the judgment is clear;

It is insufficient to conclude that it is possible to support the possibility of actual recovery of the above claim.

Therefore, this part of the defendant's assertion is without merit.

2) On the other hand, on October 15, 2009, KimA and the defendant filed an application for divorce on October 15, 2009, and the divorce on January 25, 2010

The facts that the report was completed are as seen earlier, and the KimA and the defendant known in the above basic facts.

in light of the relationship, the flow and purpose of the money remitted by KimA, the timing of payment, etc.:

The fact that KimA remitted 393,50,000 won to the defendant through the cash donation contract of this case.

It is reasonable to see that the property was made as the property division following the divorce. Thus, this does not apply in this case.