[1] Requirements for exceptionally becoming a preserved claim against obligee's right of revocation of a claim which has not yet been established at the time of a fraudulent act

[2] The case holding that where a debtor transferred real estate immediately before a fraudulent act, the creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor'

[3] In a case where a transfer income tax claim is recognized as a preserved claim of obligee’s right of revocation, whether the amount of such claim includes the additional charges and increased additional charges incurred after the fraudulent act’s act and the time of closing argument

[1] Article 406 (1) of the Civil Act / [2] Article 406 (1) of the Civil Act, Article 115 of the Income Tax Act / [3] Article 406 (1) of the Civil Act, Articles 21 and 22 of the National Tax Collection Act

[1] Supreme Court Decision 200Da37821 Decided March 23, 2001 (Gong2001Sang, 953) Supreme Court Decision 2004Da40955 Decided November 12, 2004 (Gong2004Ha, 2033) Supreme Court Decision 2004Da53173 Decided August 19, 2005 (Gong2005Ha, 1498) / [3] Supreme Court Decision 2000Da6416 Decided September 4, 2001 (Gong201Ha, 2162), Supreme Court Decision 2003Da19572 Decided July 111, 2003 (Gong2003Ha, 17209Ha, 204).

Korea

Defendant

Seoul High Court Decision 2005Na91570 decided September 5, 2006

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.

We examine the grounds of appeal.

1. As to the ground of appeal on additional tax

In principle, a claim that can be protected by the obligee’s right of revocation should have arisen before the obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, at the time of the juristic act, there is a high probability that the legal relationship, which is the basis of establishment of the claim, has already been established at the time of the juristic act, and that the claim would have been created in the near future by the legal relationship, and in a case where a claim is actually realized in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see Supreme Court Decision 200Da37821, Mar.

In accordance with the facts acknowledged by the court below, the legal relationship, which is the basis of the occurrence of the claim for tax credit under Article 115 of the Income Tax Act (hereinafter “instant additional tax credit”) by transferring the instant real estate, which was owned by Nonparty 1 to Nonparty 2 immediately before the conclusion of the instant gift contract, may be deemed to have been established by the transfer of the instant real estate to Nonparty 2. After the instant donation contract, Nonparty 1 did not have any specific property, and Nonparty 1 did not fully implement the scheduled return of the transfer income tax base and the final return and the final return procedure for voluntary payment, etc., in light of the fact that Nonparty 1 did not pay the final return of the transfer income tax base and the final return of the transfer income tax base and the final return, it is highly probable that Nonparty 1 did not pay the final return of the transfer income tax base and the final return, and thus, it can be deemed that the instant additional tax claim was established in the near future. Thus, the instant additional tax claim may also become the preserved claim for the obligee’s creditor’

Nevertheless, the court below held that the additional tax claim of this case cannot be a preserved claim of obligee's right of revocation on the ground that there is no high probability that the additional tax claim of this case is established in the near future. Accordingly, the court below erred in the misapprehension of legal principles as to the preserved claim of obligee's right of revocation, which affected the conclusion of the judgment, and the allegation in the grounds of appeal

2. As to the ground of appeal on additional dues

When a creditor exercises his right of revocation, in principle, he cannot exercise his right of revocation in excess of his own claim amount, and at this time, the creditor's claim amount includes interest or delay damages incurred after the fraudulent act and until the closing of argument in fact-finding proceedings (see, e.g., Supreme Court Decisions 2000Da66416, Sept. 4, 2001; 2003Da19572, Jul. 11, 2003). Meanwhile, the additional dues and increased additional dues provided for in Articles 21 and 22 of the National Tax Collection Act are the kind of incidental dues imposed in the meaning of interest on the unpaid portion if national taxes are not paid by the due date, and if national taxes are not paid by the due date without the confirmation procedure of the right of taxation, they are naturally generated by the provisions of Articles 21 and 22 of the same Act and are finalized (see Supreme Court Decision 200Du2013, Sept. 22, 200).

Therefore, as long as the transfer income tax claim of this case is recognized as the preserved claim of obligee's right of revocation, the transfer income tax amount includes the additional charges and increased additional charges incurred after the fraudulent act and the time of the closing of argument in fact-finding proceedings. However, unlike this opinion, the court below erred by misapprehending the legal principles on the scope of revocation of fraudulent act and additional charges in the near future on the ground that there is no high probability that the claim of this case is finalized in the near future in the near future on the claims of obligee's right of revocation of the transfer income tax of this case, and such illegality affected the conclusion of the judgment. Thus, the argument in the grounds of appeal pointing this out is justified (as seen in the record, the additional charges of this case are deemed to contain some parts on the additional charges of this case, so long as the additional charges of this case are recognized as the preserved claim of obligee's right of revocation, the same legal principles also applies

3. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)