Act of transferring the ownership of the real property to the Negation in excess of the obligation does not constitute a fraudulent act.

The judgment that the act of donation of real estate to the denied person while in excess of debt does not constitute a fraudulent act by deeming it as division of property following divorce.

Article 30 of the National Tax Collection Act, Articles 407 and 408 of the Civil Act

2012 Written Revocation of Fraudulent Act

Korea

KimA

November 22, 2012

December 27, 2012

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

A donation contract concluded on September 29, 2010 with respect to real estate stated in the separate sheet between the defendant and the non-party B (OOO-OO-OO-dong, 180 CCC-dong, 513) shall be revoked. The defendant shall pay to the plaintiff an amount equivalent to 5% per annum from the day following the date this judgment becomes final and conclusive to the day of full payment.

1. Basic facts

A. On August 1, 2007, the MediationB transferred 30,000 non-listed shares of ECE Construction Co., Ltd. to KimD (hereinafter “instant shares”) to OOD on one week, and the Central Regional Tax Office determined that the instant shares were transferred free of charge to KimD, and notified the head of both tax office to impose gift tax on the instant shares during the period under the Plaintiff’s control, after evaluating the value per share of the instant shares as OOO, the Central Tax Office determined that the instant shares were transferred free of charge.

B. Accordingly, on July 1, 2010, the head of the Yangyang Tax Office imposed an OOO on the instant shares donated by the ChoB on KimD. However, on August 16, 2010, KimD did not pay the gift tax. On August 16, 2010, the head of the Yangyang Tax Office notified that OOOB and additional tax OOB shall be paid for 2007 of KimD (hereinafter referred to as the “instant disposition”; and the said gift tax reaches OOB on August 18, 2010.

C. At the time of July 18, 2010, the ChoB concluded a contract with the Defendant, who was his spouse, to donate the real estate listed in the separate sheet (hereinafter referred to as the “instant gift contract”) as a result of the division of property according to the divorce between the Defendant and the Defendant who was his spouse, as of July 18, 2010, and entered into a contract with the Defendant to donate the real estate listed in the separate sheet (hereinafter referred to as “instant real estate”). On September 30, 2010, the registration for the transfer of ownership was completed in the future with respect to the instant real estate.

D. At the time of the conclusion of the instant gift contract, the ChoB owned the instant real estate of the value of OOB as active property. However, as passive property, the FF Bank, a mortgagee of the instant real estate, bears the liabilities for the loans of OOB (Calculation: OOwon + OOOOO won) and the liabilities for the gift tax of this case (OOO) respectively.

E. At the time of the filing of the instant lawsuit, the total sum of the principal and additional taxes of the instant gift tax were not paid.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 7, Eul evidence No. 1, the purport of the whole pleadings

2. The plaintiff's assertion

The instant donation contract constitutes a fraudulent act against the Plaintiff, who is the creditor holding the claim for the instant gift tax against the ChoB, and the Defendant, the beneficiary, also concluded the instant donation contract with the knowledge that it would prejudice the Plaintiff. As such, the instant donation contract should be revoked. Furthermore, the Defendant is obligated to pay to the Plaintiff the remainder of the KRW OOO and the damages for delay, which limit the amount of the collateral security obligation to FOOOO of the instant real estate to FOB at the time of the closing of the argument in this case.

3. The occurrence of right to revoke the fraudulent act;

(a) Occurrence of preserved claims;

(1) According to Article 21(1)3 of the Framework Act on National Taxes, in the case of gift tax, a donee is liable to pay the property when the donee acquires the property through the gift. The donor’s joint and several liability to pay gift tax is recognized as having no ability to pay gift tax and it is difficult for the donee to secure a tax claim even after the disposition on default due to default. However, when the grounds under each subparagraph of Article 4(4) of the Inheritance Tax and Gift Tax Act accrue, the head of a tax office shall issue a notice to the donor in accordance with Article 9 of the National Tax Collection Act and notify the donor of the tax payment. Meanwhile, the claim protected by the obligee’s right of revocation should have arisen before the obligor performs a juristic act aimed at property right with the knowledge that it would in principle prejudice the obligee. However, there is a high probability that the legal relationship, which already serves as the basis of the establishment of the claim at the time of the juristic act, is established in the near future, and the claim may also become the preserved claim of the obligee.

On August 1, 2007, due to the establishment of a tax claim against KimD, the main tax obligor, and the legal relationship that forms the basis for establishing a joint and several tax liability against the Plaintiff prior to the conclusion of the instant gift contract was generated. The tax liability payment period of the said principal tax obligor was highly probable to establish a joint and several tax liability against ChoB in the near future at the time of the conclusion of the instant gift contract by closeing the date of the instant gift contract to July 31, 2010. In fact, the joint and several tax liability of ChoB was determined on August 18, 2010 because the instant gift contract was jointly and severally designated and notified by the taxpayer to ChoB on August 18, 2010. Thus, the Plaintiff’s claim for the gift tax of this case against ChoB against the Plaintiff can be the preserved claim.

Meanwhile, the amount of the obligee’s right of revocation includes the interest or delay damages incurred from the date of closing argument in the fact-finding court after the fraudulent act, and the additional dues prescribed in Article 21 of the National Tax Collection Act are the kind of incidental tax imposed in the meaning of the interest on the unpaid portion in the event national taxes are not paid by the due date. As long as a tax claim is recognized as a preserved claim of the obligee’s right of revocation, the amount of such tax claim includes the additional dues incurred from the time of closing argument in the fact-finding court after the fraudulent act (see Supreme Court Decision 2006Da66753, Jun. 29, 2007). Therefore, the Plaintiff’s additional amount of the gift tax of this case against ChoB may also

Therefore, the entire amount of the gift tax claim of this case (this tax + additional dues) can be the preserved claim of the obligee's right of revocation.

(2) As to this, the Defendant filed a lawsuit against the head of Suwon District Court 201Guhap117555 against the head of Suwon District Tax Office to revoke the imposition of the gift tax, and on October 12, 2012, rendered a judgment of acceptance by the said court, and thus, asserted that the instant preserved claim does not exist.

However, even if there is an unlawful ground for revocation of a taxation disposition, unless the taxation disposition by an administrative agency is deemed to be null and void as a matter of course, such taxation disposition is valid until it is lawfully revoked by the process of administrative act or the executory power (see Supreme Court Decision 9Da20179, Aug. 20, 199).

As to the instant case, even if ChoB filed a lawsuit against the head of Yangyang Tax Office seeking revocation of the tax disposition by the Defendant, and was sentenced to a quoted judgment, there is no evidence to acknowledge that the said judgment became final and conclusive, and thus, the Defendant’s above assertion is rejected.

(b) Division of property and fraudulent act by divorce;

(1) The parties' assertion

The Defendant asserts that the instant donation contract is not subject to revocation of fraudulent act, since the agreement was reached between the ChoB and the Defendant due to the appearance of ChoB, and agreed that the instant real estate will belong to the Defendant under the pretext of child support, support fees, and consolation money for the children of division of property. Accordingly, the Plaintiff asserts that even if the instant donation contract was divided by divorce, it exceeds the scope of a reasonable division of property, it shall be revoked by fraudulent act.

(2) Whether property division was fraudulent

Although a debtor who has already been in excess of his/her obligation has transferred a certain property to his/her spouse as a result of the reduction of joint security against the general creditor, barring any special circumstance to recognize that the above division of property is excessive beyond a considerable degree according to the purport of Article 839-2(2) of the Civil Act, it shall not be subject to revocation by the creditor as a fraudulent act, unless there is a special circumstance to deem that the above division of property is excessive beyond a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act. However, since it cannot be deemed a legitimate division of property with respect to the excessive portion beyond a considerable degree, it may be subject to revocation. The burden of proving that there are special circumstances to deem it as excessive division of property exceeding a considerable degree is the creditor (see, e.g., Supreme Court Decision

As to the instant case, comprehensively taking account of the overall purport of the arguments in the Health Team, Gap evidence Nos. 3, 5, Eul evidence Nos. 1 and 4, the Defendant was married on March 2, 1989 with ChoB and completed a divorce report on April 27, 201, the Defendant and ChoB’s external intent as the cause of divorce between the Defendant and ChoBB, and the Defendant and ChoBB concluded the instant donation contract on July 18, 2010 and completed the registration of ownership transfer of the instant real estate on the same day under the name of division of property against the Defendant, child support and support fees and consolation money before the divorce. Thus, the instant donation contract is deemed to have been concluded as a division of property pursuant to divorce, including consolation money.

Furthermore, with respect to whether there are special circumstances to recognize that the instant donation contract is excessive beyond a considerable degree under the purport of Article 839-2(2) of the Civil Act, the following circumstances acknowledged by comprehensively taking into account the overall purport of pleadings as to whether there are health, Gap 6, 7, Eul 1, 3, and 5 evidence, and the entire purport of pleadings. In other words, the instant real estate subject to the instant donation contract is a place of residence living with the defendant and ChoB during marriage, which is near April 27, 2011, which is the date on which an agreement is filed, and the value of which is an OOO on July 1, 201, which is near April 27, 2011. However, even if around July 18, 2010, which is near July 18, 2010, the date of conclusion of the instant donation contract, around September 30, 2010, the Defendant continued to reach the OOOOB under the name of FF Bank, and the Defendant’s property 2.

(3) Sub-determination

Therefore, the plaintiff's above assertion that the gift contract of this case is a fraudulent act is without merit.

4. Conclusion

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