If a large amount of national taxes is highly probable to be notified, the sales of real estate owned by it has become more than the debt, it constitutes a fraudulent act.

Under high probability that national taxes are delinquent or high-amount national taxes are to be notified, real estate owned by a person with a special interest was sold to the person with a special interest, and it was in excess of debts at the time of real estate sale.

2014 Gohap2457 Revocation of Fraudulent Act

Korea

LAA

November 13, 2015

January 15, 2016

1. A. A. The sales contract concluded on October 201 between the Defendant and KimA with respect to the real estate listed in paragraph (1) of the attached Table No. 1 and the real estate listed in paragraph (2) of the same Table shall be revoked on April 2011.

B. The Defendant shall implement the procedure for each cancellation registration of ownership transfer registration completed on October 2, 201 by the Changwon District Court ○○○○○○○○○○○○○○○○ Office of the District Court on the real estate listed in paragraph (1) of the attached list and the real estate listed in paragraph (2) of the attached list with respect to the real estate listed in paragraph (1) of the attached list in the attached list to Kim A.

2. The costs of lawsuit are assessed against the defendant

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. From 2008. to 2010. 2010, KimA operated the ○○○○○○○○○○○○○○○○○○○○○○ (hereinafter “○○○○○○”). The head of ○○○○○○○○○○○○○ (hereinafter “○○○○”). The head of ○○○○○○○○ was issued a purchase tax invoice of KRW ○○○○○○○○○○○○○ on the first day of 2009, which was operated by the ○○○○○○○○○○○○○○ (hereinafter “○○○”). For this reason, on the one hand, the head of ○○○○○○○○’s tax payment notice was issued without actual transaction value, and the head of ○○○○○○○○○○’s tax payment notice was based on the deduction of the input tax amount on the ○○○○○ on the first day of 2009.

(C) The KimA sold the real estate listed in paragraph (1) of the attached Table No. 1 (hereinafter referred to as "first real estate No. 1") to the Defendant (hereinafter referred to as ○○○○○○○○○, 2000.○, 200.○, 200., and 1 real estate and No. 2 together with 1 real estate and 2) on each of the instant real estate to the ○○○○○. (hereinafter referred to as "the instant sales contract"). The Defendant completed the registration of ownership transfer of the real estate No. 1 by the ○○ District Court ○○○○○○○○○○○○○○○○, ○○○○, ○○○○, ○○○, ○○○, ○○○, ○○, ○○, ○○, ○○, ○○, 16937, respectively, on each of the following grounds (hereinafter referred to as "the instant real estate").

2. Determination on this safety defense

A. The defendant's assertion

In light of the fact that ○○○○○○○○○○○○○○○○, and ○○○○○○○○○○, which owned by KimA, sold on October 201, and reported the transfer to the competent tax office, and that the head of ○○○○○ Tax Office requested the issuance of the real estate on the real estate owned by KimA (○○ District Court 200○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○).

B. Determination

"Date on which ○○○○○○○○-A, the starting point for exclusion, became known" means the date on which ○○○○○○-2, a creditor, knew that he/she had committed a fraudulent act while having knowledge that he/she would prejudice the obligee, so it is insufficient to simply say that the debtor performed a disposal act of the property. It is necessary to find out that the legal act is insufficient to satisfy the claims completely due to the lack of joint security of claims or lack of joint security already in a short condition, and that there was an intention to harm the obligor. Furthermore, it is difficult to presume that ○○○○○○○○-2, a debtor had known the objective fact of fraudulent act, and that the burden of proof on the exclusion period is against the other party to the obligee’s revocation lawsuit (see, e.g., Supreme Court Decision 2013Da585, Apr. 26, 2013; 2013Da32131, Apr. 1, 2013).

However, in full view of the fact that the head of ○○ Tax Office under the Plaintiff’s control of the Plaintiff designated the KimA as the secondary taxpayer on 2000.0.0.0., the time limit for payment was 2000.0.0.0., it is difficult to conclude that the Plaintiff anticipated the arrears of KimA and investigated all the details of the transfer of the property before the said time limit, and that the tax claim included this case in the delinquent tax for which the ○○ Tax Office requested delivery on 2000.0.0.0.0.0.00., however, it is difficult to see that the ○○ Tax Office knew of the fact that the ○○ Tax Office requested the issuance of the amount of delinquent tax, as alleged by the Defendant, it was difficult to see that the Plaintiff knew of the fact that the ○○ Tax Office had concluded the instant sales contract by the KimA.

Therefore, the defendant's main defense is without merit.

3. Judgment on the merits

A. The plaintiff's assertion

The KimA sold each of the instant real estate to the Defendant, who is the owner of each of the instant real estate at the time of sale of each of the instant real estate, in a highly probable situation where national taxes are delinquent or high-amount national taxes are to be notified. As such, the instant sales contract should be revoked as it constitutes a fraudulent act.

(b) Fact of recognition;

1) The KimA is registered as the ○○○○ representative director from 200 ○○○○ from 200 .07 to 200 .0 .0 .0, and the Defendant is registered as the ○○○○’s auditor from 200 .0 .0 .0 .0 .

2) Meanwhile, KimCC is registered as the representative director of ○○○ from 2000.0.0.0. to ○○○○○○, and yellow ○○○ was registered as the director of ○○○○○○○ from 200.0.0.0.0. The KimCC is the spouse of KimCC’s punishment, and yellow ○○ is the spouse of KimCC.

3) The business year of ○○○○ is from 1, 1, to 31 December each year.

4) From 200 to 2000. The ownership relationship between 200 and 200. The share ownership ratio is as follows.

5) The head of the ○○ Tax Office conducted a general integrated investigation on ○○○○ on or around 200○. Around 200.○○○○○, and discovered the fact that the ○○○○○○○○○○○○○○ was a public auction from the ○○○○○ Gas Station, and notified the ○○○○○○○○○○○○○ of the rectification and notification of the value-added tax on ○○○○○○○○○○○.

6) The details of the property of the KimA at the time of 2000.0.0 and 200.0.00.00, and each price shall be as follows:

The same shall apply.

1) The value of the building part among the immovable property 1 is not included in the value.

2) A. Regular installment savings for ○○ Bank Co., Ltd., Kim A., Ltd., a pledge was established on the sum of ○○○○○○○ Won, but the secured debt is identical to the secured debt of ○○○○○, ○○, ○○, ○○, ○○, ○○, ○○-dong, ○○, ○○-dong, ○○, ○○, and seven parcels, etc., inasmuch as the secured debt is identical to the secured debt of ○○○○, ○○, ○○-dong, ○○

【Identification Card Nos. 1, 2-1, 3-1, 4, 15, 16, 5, 10 through 12, 4, 5, 6, 10 through 4, 5, 6, and 10-12, 5, and 10-1, 5, 5, 6, and 10-1, and the purport of the whole pleadings.

C. Determination

(i)the existence of preserved claims;

A claim that can be protected by the obligee’s right of revocation may, in principle, be deemed to be a fraudulent act. However, there is a high probability that the legal relationship, which forms the basis for the establishment of the claim at the time of the fraudulent act, has occurred, and that the claim is established in the near future. In the near future, where a claim is realized and its probability has been established in the near future, the claim may also become a preserved claim (see, e.g., Supreme Court Decision 2000Da37821, Mar. 23, 2001).

Meanwhile, the secondary taxpayer’s tax liability is abstractly established at the time of occurrence of the fact that falls under the legal requirements, such as the failure of the principal taxpayer, and is determined by the notice of payment (see, e.g., Supreme Court Decision 81Nu80, Aug. 24, 1982). In order to establish the secondary tax liability, the occurrence of the fact that meets the requirements, such as the failure of the principal taxpayer, must occur, and thus, at least the time of establishment of the secondary tax liability has passed (see, e.g., Supreme Court Decision 2010Du13234, May 9, 2012).

According to the above facts, at least 200.00 and 200.00.00, the following day after the due date for payment of the value-added tax and the corporate tax corrected and notified by the head of the ○○○○○○○○, and the date on which the sales contract of this case was concluded is 200.00 and 200.0.0.00.0.00.00..00, respectively, there is room to view that the right of revocation was not established for the purpose of protecting each of the real estate sales of this case.

그러나 이 사건 조세채권의 기초가 되는 법률관계(부가가치세, 법인세 부과의 근 거가 되는 조세원인)는 이미 20○○.○.○, 20○○.○.○. 발생되어 있었던 점(국세기본 법 제21조 제1항 제1호, 제7호에 의하면 부가가치세 및 법인세의 각 납부의무는 과세 기간이 끝나는 때에 성립하는데, 부가가치세법 제5조 제1항에 의하면, 일반과세자에 대한 부가가치세 과세기간은 1기의 경우 1. 1.부터 6. 30.까지이고, 법인세법 제3조，제6 조에 의하면 법인세 과세기간은 사업연도인데, 사업연도는 법령이나 정관에서 정한 1회 계기간으로 하도록 규정 하고 있다)，○○세무서장은 만○○○○에 대한 일반통합조사를 실시하여 현○○○○에 대한 가공의 매출세금계산서 발행사실을 적발하였고, 이어 현○○○○에 대한 세무조사 후 현○○○○가 ○○주유소로부터 실제 거래 없이 가공의 매입세금계산서를 수취하였으므로 현○○○○에 대한 부가가치세 및 가공세금 계산서 수취에 따른 법인세 가산세를 부과하게 된 점, 국세기본법 제39조에 의하면 제 2차 납세의무를 부담하는 출자자가 법정되어 있으므로, 2년 이상 현○○○○를 운영하였던 김AA로서는 현○○○○가 위 조세를 납부하지 않으면 자신이 제2차 납세의무를 부담한다는 사실을 쉽게 예견할 수 있었던 점, 김AA가 현○○○○의 대표이사이던 시점에 가공매입세금계산서 수취가 아루어진 점, 김AA와 피고와의 관계 및 현○○○의 임원진은 김AA, 피고, 김CC, 황○○으로 모두 친인척관계에 있을 뿐만 아니라, 김AA는 20○○.○.○. 현○○○○의 대표이사직을 사임한 후에도 20○○.○.○.까지 현○○○○의 주식 75%를 보유하고 있었던 점, 현○○○○의 부가가치세 및 법인세 체납으로 현○○○○의 25% 지분 보유자인 김AA가 2차 납세의무자가 됨으로써 원고가 김AA에 대한 이 사건 조세채권을 취득하게 된 경위 등을 종합하면，김AA가 이 사건 각 부동산을 매도할 당시 원고의 김AA에 대한 이 사건 조세채권이 아직 발생하지 않았더라도 그 채권 발생의 기초가 됫는 법률요건사실은 모두 구비되어 있었고, 이 사건 각 부동산의 매도 당시 가까운 장래에 위 법률관계에 터잡아 이 사건 조세채권이 성립되리라는 점에 대한 고도의 개연성도 인정된다고 판단된다. 또한 실제로 가까운 장래에 그 개연성이 현실화되아 이 사건 조세채권이 성립한 이상 이 사건 조세채권도 채권자취소권의 피보전채권이 될 수 있다고 봄이 타당하다.

2) The establishment of fraudulent act

A) An action for revocation of a fraudulent act under Article 30 of the National Tax Collection Act is obvious that it is a kind of action for revocation of a fraudulent act under Article 406 of the Civil Act (see, e.g., Supreme Court Decision 2008Da24487, Aug. 11, 2008). “Fraud subject to the obligee’s right of revocation” under Article 406 of the Civil Act refers to an act detrimental to the obligee by reducing the obligor’s active property or deepening that the obligor has already been in excess of his/her obligation by increasing his/her negative property, thereby impairing the obligor’s status of excess of obligation. Furthermore, whether the obligor is in excess of obligation is determined as at the time of the fraudulent act in a lawsuit for revocation of a fraudulent act (see, e.g., Supreme Court Decision 2012Da18334, Apr. 26,

"나) 먼저 20○○.○.○. 이루어진 부동산 매매계약에 관하여 보건대,20○○.○.○.당시 김AA의 적극재산 합계액이 ○○○○원 + 제1부동산 중 건물의 가액 (편의상 'a'라 한다)이고，소극재산 합계액이 ○○○○원인 사실은 앞서 본 바와 같고, 갑 제3호증의 1, 2, 갑 제4호증의 15의 각 기재에 변론 전체의 취지를 종합하면 제1부동산 중 토지와 제2부동산에 관하여 20○○.○.○ 채권최고액 ○○○ 원，근 저당권자 ○○새마을금고인 근저당권설정등기, 20○○.○.○. 채권최고액 ○○○만원, 근저당권자 ○○새마을금고인 근저당권설정등기가 각 마쳐져 있는 사실, 20○○.○.○. 제1부동산 중 건물이 위 각 근저당권의 공동담보로 추가된 사실, 20○○.○.○.을 기준으로 한 위 각 근저당권의 실제채권액읔 0원인 사실을 인정할 수 있다.", "위 인정사실에 의하면, 김AA가 20○○.○.○. 제1부동산을 매도하기 직전의 적극재산과 소극재산의 합계액은 '-○○○원 + a'(= ○○○○원 + a - ○○○○원)로 적극재산 중 부동산의 평가시점을 고려할 때 채무초과상태에 있었는지는 다소 분명하지 않다. 그러나 김AA가 같은 날 제1부동산을 매도함으로써 적극재산이 ○○○○원(= ○○○○0원 + a - ○○○○원 - a)으로 감소하게 되어 채무초과상태에 빠지게 되었음은 계산상 명백하므로, 김AA가 20○○.○.○ 피고에 게 제1부동산을 매도한 행위는 원고 등 일반채권자들을 해하는 사해행위에 해당한다.",다) 다음으로 20○○.○.○. 이루어진 제2부동산의 매매계약에 관하여 보건대, 위 에서 본 바와 같이 20○○.○.○.를 기준으로 한 김AA의 적극재산은 ○○○○원, 소극재산은 ○○○○원으로 김AA는 이미 채무초과 상태에 빠져 있었으므로, 김AA가 제2부동산을 피고에게 매도한 행위는 기존의 채무초과상태를 심화시키는 행위 로서 원고 등 일반채권자들을 해하는 사해행위에 해당한다.

D) Ultimately, the instant sales contract constitutes a fraudulent act, and the intention of the KimA’s death is recognized, and the Defendant’s bad faith is presumed in light of the relationship between the KimA and the Defendant.

E) As to this, the Defendant asserted that, at the time of selling each real estate in each of the instant case, the credit card sales amount of ○○○○○○○○○○○○, from 200.0 to 200.00, 200.00, ○○○○○○○○○○○○○ on the day of sales, and ○○○○○○○○○○○○○○○○○○○○ on the day of sales, and ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on the day of sales. However, in calculating active property, where the property is a claim, it should be reasonably determined whether it can be easily performed and should be included in active property only if it is confirmed (see, e.g., Supreme Court Decision 2001Da32533, Oct. 12, 201), and evidence 7 through 12 (Ga number) can not be readily concluded that each of the Defendant’s claims could have served as joint collateral.

3) Determination as to the defendant's bona fide defense

While KimA was operating ○○○○○○○○○○ with JinE, a mother of her mother, in order to purchase the substitute, the Defendant claimed that the Defendant would pay the principal and interest of ○○○○○○○○○○○○○○○○○○○, including the previous loan balance on around 2000, by designating the purchase price of the real estate as the purchase price of ○○○○○○○○○○○○ as the purchase price of the real estate, and by making the loan of ○○○○ and JinE around 200, the Defendant paid the principal and interest of ○○○○○○○○○, out of the loan from Kim A and JinE, and that the Defendant did not know the remainder of ○○○○○○○○○○○, including the previous loan balance on around 200, with the right to purchase the real estate of this case.

According to each description of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○”).

However, each of the instant real estates is indicated as collateral at the bottom of each of the above loan certificates. According to the evidence evidence Nos. 7 and 8, the second real estate among the instant real estate can be recognized as divided from the land among the first real estate that must be established on 2000.0.0,00 after each of the above loan certificates was established, and the registration of ownership preservation was completed on 2000.00.00.00.00. As seen earlier, each of the above loan certificates appears to have been prepared retroactively after 200.0.00.0.0.0.0.0.00.0.0.0.0.0.0.0..00..0..00...00...00...00...00...00..00...00...000...00...00...00..000.....000...000...00000......00000.......00000.......00000....

(iv) revocation of fraudulent act and restitution to its original state;

Therefore, the sales contract of this case must be revoked as it constitutes a fraudulent act, and the restoration to its original state accordingly, the defendant is obligated to implement the procedure for registration of cancellation of each transfer of ownership completed by ○○ District Court ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on the

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.