Whether the trust contract under the name of the depositor can be seen as a fraudulent act

Therefore, it cannot be readily concluded that the right to use each of the above money remitted to the defendant belongs to the defendant, and the fact that BB remitted money to each of the defendant's accounts is insufficient to regard the above remittance as a donation to the defendant of BB.

Article 30 of the National Tax Collection Act

2011Revocation of fraudulent act 88456

Korea

AA

March 20, 2013

April 10, 2013

1. The plaintiff's claim is dismissed.

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

The contract for donation concluded between the defendant and the non-party BB on March 17, 201, OO, OO, O, OO on March 18, 201, O, OO, OO, June 5, 201, and OO, O, O, O, and O, on June 13, 2011, shall be revoked. The defendant shall pay to the plaintiff 46,680,000 won with 5% interest per annum from the day following the date the judgment of this case became final to the day of full payment.

1. Facts of recognition;

A. The Plaintiff’s preserved claim against BB

On March 20, 198, Non-party BB transferred the building and land located in the O○-○-○○○-dong, Ansan-si, Gyeonggi-do on March 20, 1998, but the head of the Suwon Tax Office under the Plaintiff’s control was notified of the imposition of capital gains tax on January 2, 2001. The above BB failed to report the corporate bonds, interest on housing rent and real estate sales income during the period from 1996 to 2000, and did not pay global income tax and value-added tax on November 30, 201, and thus, the amount of delinquent tax to the above BB amount to KRW 120,481,530 as shown in the attached Table.

(b) transfer of BB to a bank account in the name of the defendant;

BBB은 자신의 신한은행 계좌(000-000-000000)에서 2011. 3. 17. 금 OOO,OOO원, 2011. 3. 18. 금 OOO,OOO원, 2011. 6. 5. 금 OOO,OOO원, 2011. 6. 13. 금 18,680,000원을 배우자인 피고 AAA의 아래 표 기재의 농협 및 신한은행 계좌(이하 아래 표 번호 기재에 따라 각 '이 사건 제⃝ ○ 계좌'라 한다)로 이체하는 방법으로 송금하였다.

No.

Deposit Date

Amount of reserve

Defendant Name Account

Evidence

1

March 17, 2011

OO,OO

Nonghyup Bank 44-44-44444

evidence No. 2, 14

March 18, 2011

OO,OO

2

June 5, 2011

OO,OO

Agricultural cooperatives (water sources)

33333-33-33-3333

§ 3 of this title.

June 13, 2011

OO,OO

3

June 13, 2011

OO,OO

New Bank 111-11-11111

- No. 4

[Ground of recognition] Unsatisfy, Gap through 7 evidence (including each number in the case of additional numbers; hereinafter the same shall apply), Eul evidence 1 to 4, the purport of the whole pleadings

2. The party's assertion and judgment

A. The allegations of the parties

(i) The plaintiff's assertion

BB donated total of KRW 46,680,00 to the Defendant by means of remittance as described in paragraph 1(b) in excess of finance, which constitutes a fraudulent act. Therefore, each of the above gift agreements shall be revoked, and the Defendant shall pay to the Plaintiff the above OO, OOO, and damages for delay.

2) Defendant’s assertion

The assertion that only a specific monetary transaction was made between the Defendant and BB is against logical and empirical rule, and the account Nos. 1 and 2 of this case was used by BB for one’s own transaction, such as directly withdrawing or remitting the money deposited in the above passbook with the above passbook or debit card, and the account No. 3 of this case was merely a transaction made by BB using the passbook used by BB as the passbook used by BB.

B. Determination

1) A creditor who claims that a legal act, etc. of a debtor is a fraudulent act and seeks its revocation must specifically assert and prove the existence of the preserved claim and the debtor's legal act, as well as the existence of the debtor's legal act, and the fact that the debtor's insolvency was caused by the debtor's intention, etc. If the creditor who seeks the revocation of a fraudulent act contests that the debtor's monetary act is a gift to the beneficiary, it shall be proved that the creditor's assertion constitutes the denial of the creditor's assertion, and the fact that the monetary payment act constitutes a gift to be recognized as a fraudulent act, and the burden of proof is based on the assertion of a fraudulent act.

2) As seen earlier, the fact that the Health Board and BB remitted the sum of KRW 46,680,000 to the Defendant, as described in Section 1-B, is as follows. The Plaintiff asserts that BB used the instant case, such as remitting the sum of KRW 46,680,000 from the first account to CCC on April 16, 201, and withdrawing KRW 300,000 on May 26, 201, KRW 700,000,000 from May 16, 201, and KRW 5,000,000,000 from June 1, 200, but there is no data to verify who actually withdrawn.

However, the following circumstances are acknowledged by comprehensively considering the aforementioned evidence and the purport of each statement in No. 5 through No. 14, i.e., BB and the Defendant’s husband and wife, i.e., the possibility that BB deposit or transfer money to the Defendant’s account due to reasons other than donation. 5 million won on March 17, 201, and 20 million won on June 5, 201, and 60 million won deposited to the Defendant in the account under the name of No. 130,000,000 won on June 13, 201, and 200,000 won deposited to the Defendant in the above account, and there is no possibility that BB may transfer money to the Defendant’s account under the name of No. 5 or 100,000,000 won from the above account to the Defendant’s account under the name of No. 30,000,000 won, and there is no possibility that the money was transferred to the Defendant’s account.

(iii) argument and determination as to the attribution of deposit claims;

Even if BB used the account under the name of the Defendant by borrowing, etc. the account under the name of the Defendant, the said account belongs to the Defendant, and thus, the money deposited to the Defendant should be deemed to have been donated. Therefore, the Plaintiff’s right to claim the ownership of the money deposited or transferred to the account under the name of the Defendant or the right to claim the return of the deposit thereof is only the legal principle that determines who is the party to the deposit contract in the relationship with the financial institution, and it is not the legal principle as to who is the party to the deposit contract between the nominal lender and the borrower. Thus, the said money cannot be deemed to have been donated to the Defendant solely on the basis of the legal principle of the

4) Therefore, the Plaintiff’s assertion is without merit to further examine.

5. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.