Where a title trust contract for deposit holders is concluded;

Inasmuch as the fact that a title trust contract has been concluded, it cannot be readily concluded that it is an act of reducing the liability property provided to the general creditors as joint collateral by the truster, and there is no evidence to deem that the leJ lost the above right against the defendant.

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

2015 Gohap20312 Revocation of Fraudulent Act

Korea

KimE

July 1, 2015

July 15, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

A. In the meantime, each gift agreement of KRW 410,218,380, which was concluded on January 6, 2012 between the Defendant and the leJ and KRW 348,903,235 and March 12, 2012, shall be revoked within the limit of KRW 410,218,380.

Preliminaryly, with respect to DDR accounts (Account Number ○-00-03) between the Defendant and the JJ, the title trust agreement of KRW 114,903,235 entered into on January 6, 2012 and KRW 490,000,000 entered into on March 12, 2012 shall be revoked within the limit of KRW 234,000,000,000, which was entered into on January 6, 2012 with respect to DDR accounts (Account Number ○-00,000,00 won, within the limit of KRW 410,218,380.

B. The defendant shall pay to the plaintiff 410,218,380 won and 5% interest per annum from the day following the day when the judgment becomes final and conclusive to the day of full payment (the subject matter of a lawsuit seeking revocation of a fraudulent act is the revocation of the act of reducing the debtor's property and the right to restitution thereof. Thus, in relation to the legal assessment of the act of reducing the property, it is merely a different claim as to the method of attack and defense, which is justified in the right to revoke the fraudulent act, and it cannot be deemed that the claim itself differs (see Supreme Court Decision 2004Da10985,1092, Mar. 25, 2005). Accordingly, it is decided as one claim.)

1. Basic facts

A. On July 12, 2005, J purchased the instant real estate from H on July 12, 2005, ○○○-1 Forest & Forest & Forest No. 14,301 square meters, and two lots (hereinafter “instant real estate”) from the Defendant, one of his mother, and the Defendant agreed to trust the name of the Defendant. After purchasing the instant real estate with H on June 20, 2005 under the name of the Defendant, the J completed the registration of ownership transfer on July 12, 2005 under the name of the Defendant.

B. On July 1, 2011, J sold the instant real estate in the amount of KRW 1,040,000,000 to the largestCC (hereinafter “instant sale”).

C. On January 6, 2012, 114,903,235 won was transferred from the largestCC to the Defendant’s DNA Depository Account (Account Number ○-00-O3), 234,000,000 won was transferred to the Defendant’s other DNA Depository Account (Account Number ○-00-O1), and on March 12, 2012, the Defendant transferred KRW 490,000,000 to the Defendant’s DNA Depository Account (Account Number ○-00-03; hereinafter referred to as “each of the instant accounts”). (hereinafter referred to as “each of the instant payment”).

D. As to the disposal of the instant real estate, leJ imposed capital gains tax of KRW 314,103,00 on leJ. However, leJ did not pay capital gains tax and additional charges of KRW 410,218,380 up to January 1, 2015 (=314,103,000 + +96,115,380) as well as debt excess at the time of each of the instant payments.

[Ground of recognition] Facts without dispute, the purport of the whole pleadings described in Gap evidence 1 through 9 (including a provisional number; hereinafter the same shall apply)

2. The assertion and judgment

A. The plaintiff's assertion

The J has sold the real estate of this case under its own title in excess of the debt owed to the Plaintiff, and received a total of KRW 838,903,235 in the purchase price, as the details of each payment of this case, from the account held in the name of the Defendant, which is the mother. This constitutes a fraudulent act under a gift contract (principal assertion) or a deposit principal trust (preliminary assertion), and thus, it shall be revoked within the scope of KRW 410,218,380, which is a preserved claim. As such, the Defendant is obliged to pay the Plaintiff a total of KRW 410,218,380, and delay damages for the restitution following the cancellation of a fraudulent damage.

(b) Cancellation and reinstatement of a donation contract;

With respect to a creditor seeking revocation of a fraudulent act’s assertion that the act of payment of money to the beneficiary is a gift to the beneficiary of the debtor, the beneficiary should be proved to the effect that the act of payment of money constitutes a gift in order to be recognized as a fraudulent act because it constitutes denial of creditor’s assertion. The burden of proof is on the part of asserting a fraudulent act (see, e.g., Supreme Court Decision 2005Da28686, May 31, 2007). In such a case, in order to constitute a gift, it should be interpreted that the debtor and the beneficiary agree with the other party as to whether the remitted money is ultimately reverted to the beneficiary. In a case where money is transferred to another person’s deposit account, etc., the remittance can be based on a variety of legal causes, and thus, it cannot be understood that a person with a personal relationship, such as a taxation authority, etc., knew that the money was remitted to the account holder with no other person’s own deposit account or with no other person’s own consent (see, e.g., Supreme Court Decision 201200Da1627., supra).

As seen earlier, the fact that the LJ had LJ deposit the above KRW 838,903,235 in each of the instant accounts in the name of the Defendant under the name of the Defendant. However, in light of the above legal principles, it is insufficient to recognize that there was a mutual agreement between the J and the Defendant that the above money will be ultimately reverted to the Defendant, and there is no other evidence to acknowledge it. Thus, the Plaintiff’s assertion on the above gift contract is without merit, and there is no reason to review it.

C. Revocation and reinstatement of a deposit shareholder title trust agreement

1) Whether there is a preserved claim

Although it is required that a claim that can be protected by the obligee's right of revocation has arisen prior to the act that can be viewed as a fraudulent act in principle, there is a high probability that at the time of the fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of the claim, and that the claim should be established in the near future, and where a claim has been created in the near future as the possibility has been realized in the near future, the claim may also become a preserved claim. This legal principle applies to a tax claim. As such, even if there was no specific taxation disposition at the time of the fraudulent act, there was a basic legal relationship as to the occurrence of a tax claim even though there was no specific taxation disposition at the time of the fraudulent act, and where a tax claim has been established specifically through a series of procedures in the near future, it may become a preserved claim (see, e.g., Supreme Court Decisions 200Da37821, Mar. 23, 2001; 2006Da67536, Jun. 29, 2007).

Pursuant to the above legal doctrine, the Plaintiff’s claim against leJ was established upon the occurrence of the obligation to pay capital gains tax from sale as of February 28, 201, and each of the instant payments to the Defendant by leJ was made prior to the occurrence of the obligation to pay capital gains tax from sale as of February 28, 2011. However, as seen earlier, leJ concluded a contract with leJ to sell the instant real estate with MaximumCC on January 24, 2011, and concluded a contract with the former leJ to sell the instant real estate, and there was a high probability that the legal relationship, which forms the basis for the occurrence of capital gains tax from the transfer of the property, was already generated, and the tax claim of this case was established as of January 24, 201. As such, the Plaintiff’s tax claim of this case becomes the right to

In addition, the additional dues under Articles 21 and 22 of the National Tax Collection Act are a kind of incidental tax imposed in the meaning of interest in arrears where national taxes are not paid by the due date. If national taxes are not paid by the due date without the due date of payment without the due date of payment by the due date of payment by the due date, the additional dues are naturally generated pursuant to Articles 21 and 22 of the National Tax Collection Act and the amount thereof is determined (see Supreme Court Decision 2006Da66753, Jun. 29, 2007). Thus, the Plaintiff’s tax claim, including the additional dues, as seen earlier, becomes the

2) Whether the title trust agreement between leJ and the Defendant constitutes fraudulent act

In a case where a deposit contract is concluded through the real name verification procedure under the Act on Real Name Financial Transactions and Confidentiality and the fact is clearly stated in the statement of the real name verification deposit contract, etc., it would normally be reasonable to interpret that the deposit title holder, the actor who was represented by the deposit owner, and the intent of the financial institution would be the party to the deposit contract (see, e.g., Supreme Court Decision 2008Da45828, Mar. 19, 2009) as the party to the deposit contract (see, e.g., Supreme Court Decision 2008Da45828, Mar. 19, 2009). Therefore, it may be deemed that the leJ and

However, a fraudulent act refers to a fraudulent act that causes a shortage in the joint security of claims of ordinary creditors due to the debtor's disposal of property, or that the joint security already insufficient is more deficient. In a case where a contract of trust with a deposit owner is concluded, the truster may exercise the trustee's right to seek the return of deposits, the right to seek the transfer of deposits to the financial institution, and the right to seek the procedure for change of the name of the deposit owner, etc. Therefore, insofar as the trustee loses the above rights and the deposit is not ultimately attributed to the trustee, it cannot be concluded that the act of reducing the liability property provided to the general creditors' joint security solely on the ground that the contract of trust with the deposit owner was concluded, and there is no evidence to deem that JJ lost the above rights against the defendant.

Therefore, the Plaintiff’s exercise of the above right by leJ or the use of the deposit in another place by exercising the above right constitutes a fraudulent act, apart from the fact that the leJ exercises the above right, the Plaintiff’s above assertion on a different premise is without merit.

3. Conclusion

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