Revocation of Fraudulent Act

In the case of a deposit account opened through a real-name verification procedure under the real-name verification system, even if the account holder has the right to claim the return of the deposit as a party to the deposit contract, barring any special circumstance, it is related to the relationship between the remittance and the account holder, and thus, it does not immediately mean that the legal relationship between

2017 Ghana 504196 Revocation of Fraudulent Act

Korea

AA

November 15, 2018

.01.10

1. On August 19, 2016, the title trust agreement between the Defendant and BB on each of the deposited amount of KRW 000,000,000 on the account on August 19, 2016 (Account Number 000,000), ○ Bank Account (Account Number 00,000,000 on each of the deposited amount of KRW 00,000,000 on August 19, 2016, and ○○ Account (Account Number 000,000) on each of the deposited amounts of KRW 00,00,000 on August 19, 2016 is revoked.

2. The defendant transferred to BB a deposit claim of KRW 00,000 on the balance of the above account (Account Number 000) held by the defendant against ○○ Bank, a deposit claim of KRW 0,000 on the balance of the above account (Account Number 000) held by the defendant against ○○ Bank, and a deposit claim of KRW 00,000 on the balance of the above account (Account Number 000) held by the defendant against ○○○○○, and notified the transfer of the claim to ○○ Bank, ○○ Bank, and ○○○○○.

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

Cheong-gu Office

Main purport of the claim

The gift contract entered in the attached list concluded between the defendant and BB shall be revoked within the limit of KRW 000,000.

The defendant shall pay to the plaintiff 00,000,000 won with 5% interest per annum from the day following the day when this judgment becomes final and conclusive to the day of full payment.

1 Claim No. 1

The disposition of Paragraph (1) and the defendant shall pay to the plaintiff 00 million won with 5% interest per annum from the day after the day when this judgment became final and conclusive to the day of complete payment.

2 Claim No. 2

(1) Paragraph (1) of this Article and the defendant shall transfer to the plaintiff the deposit claim on the above account held by the defendant against u3000 bank, the deposit claim on the above account held by the defendant against 00 bank, the deposit claim on the above account held by the defendant against the post office, and the deposit claim on the above account in 00 bank,00 bank,00 bank, and 00 notice of the transfer of the claim (the plaintiff omitted the transfer of each of the above deposit claim in the purport of the claim and claimed only the notice of the transfer of the claim, but it is reasonable to view that the plaintiff is also seeking the transfer of the claim against the plaintiff in light of the whole written claim

[Plaintiff’s claim for revocation on the ground that an obligor’s act of paying a certain amount constitutes a fraudulent act; however, the assertion that a gift or assignment of credit is different in relation to the legal evaluation of the act of paying the amount does not change the nature of the subject matter of lawsuit or the claim itself (see, e.g., Supreme Court Decision 2004Da10985, 1092, Mar. 25, 2005). Therefore, the primary and conjunctive claim sought by the Plaintiff in this case is merely a different argument as to the method of attack, and thus, it shall be considered as a single claim).

1. Facts of recognition;

A. As of February 6, 2017, the Plaintiff’s taxation claim against BB as of February 6, 2017, based on the following taxation claims against BB, is KRW 000,00,000, including the delinquent amount:

B. BB received 00,000,000,000 won fromCCM Co., Ltd. on August 19, 2016 from its own account with 00 cooperative accounts (Account Number 00000) in its own name, and then 00,000,000 won in the Defendant’s account (Account Number 00,000), 00 bank accounts (Account Number 0000,000) in its own name on the same day (Account Number 000).

000) For 00,000,000 won (hereinafter the above aggregate amount of KRW 0,000,000,000,000 "the cash of this case", and "the above three accounts" were remitted respectively.

C. The defendant is the group of BB BB as the group of children of SongO, the South-win of BB.

[Reasons for Recognition] Each entry of Gap evidence Nos. 1 through 7, the purport of the whole pleadings

2. Judgment on the plaintiff's primary argument

A. Main assertion

BB donated the cash of this case to the Defendant for the purpose of evading tax liability against the Plaintiff, and deepening its excess of liability. The cash donation of this case by BB constitutes a fraudulent act, and the Defendant was aware that the act of donation by BB constitutes a fraudulent act and the act of donation by BB was intentional to BB.

Therefore, as a creditor of BB, the Plaintiff cancelled the cash donation contract of this case, and the Defendant is obligated to pay 000 won the equivalent compensation and the delay damages to the Plaintiff due to its restitution to its original state.

B. Determination

In the event of a transfer of money to another person’s deposit account, the remittance may be made based on various legal causes. The mere fact that a person with a certain personal relationship consented or understood to transfer money to his/her own deposit account or to allow him/her to actually control his/her own deposit account in order to avoid tracking the transfer of money to another person’s deposit account, barring any special circumstance, it cannot be easily concluded that the remitter and the account holder have agreed to give the remittance amount free of charge to the account holder objectively, barring any special circumstance. In the case of a deposit account opened through a real name verification procedure under the Real Name Financial Transactions Act, barring any special circumstance, even if the account holder has the right to claim the return of the deposit as a party to the deposit account, this is related to the financial institution where the account was opened, and thus, the legal relationship between the remitter and the account holder does not immediately change (see, e.g., Supreme Court Decision 2012Da30861, Jul. 26, 2012).

However, in light of the circumstances acknowledged in Eul evidence Nos. 6 and 13 comprehensively taking account of the overall purport of the pleadings, i.e., the transfer of KRW 00,000,000 from the Defendant’s account to the Defendant’s account No. 0000 on September 5, 2016, and KRW 00,000,000 on September 8, 2016, and KRW 00,000,000 on September 12, 2016, and KRW 00,000,000,000,000,000, 00,000,000,000,000,000,000,000,000,000,000 from the Defendant’s account under the Defendant’s name to the Defendant’s account, it is reasonable to view that BBB was again remitted from the Defendant’s account No. 16 on September 13, 2013, 2016

C. Therefore, the Plaintiff’s primary assertion that the act of remitting cash of this case constitutes a gift is difficult to accept.

3. Judgment on the plaintiff's conjunctive assertion

A. The plaintiff's assertion

BB’s act of trusting the name of the depositor with respect to the cash of this case between the Defendant and the Defendant in excess of debt constitutes a fraudulent act as a juristic act reducing liability property in relation to the general creditor of BB, and as such, the intent of the BB and the Defendant’s private intent is recognized, the above deposit owner’s title trust agreement should be revoked, and the recovery therefrom will be sought.

B. Determination

(i) A preserved claim;

According to the above facts of recognition, since the plaintiff has a taxation claim of KRW 000,000,000 against BB, the existence of the preserved claim is recognized (see Supreme Court Decision 2006Da66753, Jun. 29, 2007, which also constitutes the preserved claim of the obligee's right of revocation with the principal claim).

(ii)the intent to commit fraudulent acts and to commit fraud;

(A) the financial status of BB

In addition to the cash in this case as at August 19, 2016, the financial status of BB in addition to the cash in this case is as follows:

Active Property

1 00:00 00 Dog 000-0, 000-0

Each land, each building on 000-0

0,000,000,000 No dispute

2. No dispute over 000,000,000

Total 0,000,000,000

Petty Property

1. No dispute over 000,000,000 of a tax liability

2. No dispute over 0,000,000,000

3. Loan obligations 0,00,000,000 3 through 12,17

Total 2,943,785,212

-579,66,361

B) Title trust agreement between BB and the Defendant

In case where a deposit contract is concluded through a real name verification procedure under the Act on Real Name Financial Transactions and Confidentiality and the fact is clearly indicated in the statement of the real name verification deposit contract, it would normally be reasonable to interpret that the deposit title holder, the actor, and the intent of the financial institution acting as the deposit owner in the deposit contract is to be the party to the deposit contract, and the party to the deposit contract has transferred the cash in this case to the account in accordance with the defendant's consent and has managed and used it. In the internal relationship between BB and the defendant, the debtor, and the defendant, as the BB agreed to the intention that the ownership of the deposit claim and the management profit was made, it is reasonable to deem that the deposit title trust contract was concluded between BB and the defendant with respect to the cash in this case by the borrowed account.

Each of the above bank owners' title trust agreements asserts that: (a) although BB could not request the Defendant to return the money deposited in the account in this case, the third party could not request the Defendant to pay it or seize it; and (b) as a result, the bank account title trust agreement of this case constitutes fraudulent act in relation to general creditors; (c) barring any special circumstance, the transfer of the cash in this case to the account in this case constitutes fraudulent act inasmuch as the Defendant could use the financial account in order to repay the debt to the general creditors of BB and to spend operating expenses for the operation of D industry. However, even according to the Defendant's assertion, the amount used to repay the debt of BB out of the cash in this case is limited to KRW 00,000,000, and it is difficult to accept the Defendant's assertion that there is insufficient evidence to acknowledge the fact that the Defendant paid the above KRW 13,18-1,2, and 34,000,000 among the cash in this case.

The defendant revealed that BB transferred the cash of this case to the account of this case because it had experienced difficulties in financial transactions due to lawsuits with the largest director. Since BB used a borrowed account to avoid compulsory execution by ordinary creditors including the plaintiff, it is recognized that BB had the intention to commit a fraudulent act. Accordingly, it is presumed that the defendant, the beneficiary of the deposit account with BB, even though he knows that the trust constitutes a fraudulent act, the above trust was permitted. Accordingly, between the defendant and BB, the amount deposited with the account of 00,000,000 won on August 19, 2016 (Account Number 00,000,000,000 won on August 19, 2016 (Account Number 00,000) and the amount deposited with the account of 0,000,0000 won on August 19, 200, 2000 account number of 0,000 won on each deposit account.

(d) Methods of reinstatement;

The Plaintiff primarily sought compensation for the equivalent amount of KRW 000,000,000 for the above preserved claim amount, and then seek the return of the original property in advance. The restitution following the revocation of fraudulent act shall, in principle, be based on the return of the subject matter itself, and shall be based on an exceptional return only on cases where it is impossible or considerably difficult. The title trustee is obligated to transfer the right acquired by a contract with the other party to the title truster in relation to the title truster. In the event the title trust contract is concluded between the contributor and the deposit owner, the title trustee is obligated to transfer the right to return the deposit to the financial institution upon the request of the contributor. Thus, if the title truster’s request is cancelled due to the act of fraudulent act, the restitution following the cancellation shall be made by ordering the truster to transfer the deposit claim to the financial institution and to give notice of transfer to the financial institution (see Supreme Court Decision 2014Da212438, Jul. 23, 2015).

In full view of the purport of the entire argument in Eul evidence No. 14, the balance of 00 bank account (Account Number 000-) as of May 14, 2018 near the closing date of the argument in this case, shall be KRW 00,000,000,000 (Account Number 0000) and the balance of 00 bank account (Account Number 0,0000) shall be KRW 0,000,000, and each of the above deposit claims may be recognized as 00,000, and the fact that the above deposit claim is provisionally attached upon the plaintiff's application. In addition, there is no evidence to acknowledge that the defendant, who is the nominal party, withdrawn the deposit in this case from the account in this case and used it, it is difficult to accept the claim for compensation on this premise. Ultimately, it is reasonable to view that the defendant transferred the deposit claim in this case to BB to the creditor of the bank in question, but it is reasonable to view that the defendant transferred the deposit claim in this case to the creditor of 0000.

4. Conclusion

Therefore, the claim of this case shall be accepted, and the method of restoration shall be determined as above.

this decision is delivered with the judgment of the court.