Seosan Support 2013Gahap2107 ( October 24, 2013)

Whether cash donation to a spouse constitutes a fraudulent act

(1) Since the bank account in the name of the Defendant is deemed to be an account used while the husband manages, there is no evidence to regard it as a cash donation solely on the ground that the husband transferred each of the above real estate and deposited it out from the bank account in the name of the principal who received the payment into the bank account in the name of the spouse.

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

Daejeon High Court 2013Na12479 Revocation of Fraudulent Act

Korea

EO

Seosan Support 2013Gahap2107 ( October 24, 2013)

August 26, 2015

November 18, 2015

1. The plaintiff's appeal and the claim extended or added in the trial are all dismissed.

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

The decision of the first instance court shall be revoked. The decision of July 1, 2009 shall be revoked within the limit of KRW 132,715,200 on the donation contract of KRW 205,905,00 between the defendant and the least OO. The defendant shall pay to the plaintiff 132,715,200 and interest calculated at the rate of KRW 5% per annum from the day following the day when the decision of this case became final and conclusive to the day of complete payment. Preliminaryly, the defendant and the least OO bank account (Account Number O-O-O-OO-OO-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O of this case) shall be revoked within the limit of KRW 132,715,200, which was concluded on July 1, 2009.

1. Basic facts

A. On June 30, 2009, the director of the tax office affiliated with the Plaintiff determined and notified the transfer income tax of 94,661,532 on June 13, 201 on the income accrued from the transfer of 123.6m2, OO-2, 115m2, such O-3m2, and 181m2, of the same O-3m2 and its ground buildings owned by the Plaintiff. However, the OO was not paid, and the delinquent amount as of July 2014 is the total of 132,715,200 (including additional charges).

B. Until June 30, 2009, the MaximumO received KRW 765,00,000 from an O-O-O-O-O account in the name of the transferee, KimO, etc. of each of the above real estate from the O-O-O-O-O bank account (hereinafter "O-bank account"), and deposited KRW 205,905,000 from the above account from July 1, 2009 to the account in the name of the Defendant who is the wife (hereinafter "the monetary payment act of this case").

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 3 and 8, the purport of the whole pleadings

2. Judgment as to the main claim

A. The parties' assertion

1) Plaintiff

Although there was a high probability that the OO transferred each of the above real estate on June 30, 2009 and will be liable to the plaintiff for capital gains tax on the income accrued from the transfer of the above real estate, the OO bank account under the name of the principal on July 1, 2009 deposited the above KRW 205,905,000 to the account of the OO bank account in this case and deposited the above KRW 205,905,000 to the defendant, and thus, the above KRW 205,905,00, which was concluded on July 1, 2009 between the defendant and MaOO, constitutes a fraudulent act, and thus, the defendant must cancel this within the limit of KRW 132,715,200, and the defendant must return the above money to the plaintiff as compensation for damages.

2) Defendant

The instant OB bank account was managed and used by the leastO, and KRW 205,905,000 deposited on July 1, 2009 also used by the leastO. Therefore, it cannot be deemed that the instant monetary payment was a donation to the Defendant.

B. Determination

1) A fraudulent act refers to an act detrimental to the creditor by causing the debtor to go beyond his/her obligation by reducing his/her active property or increasing his/her negative property, or by deepening the fact that the debtor has already been in excess of his/her obligation (see, e.g., Supreme Court Decision 2000Da7783, Oct. 25, 2002), barring any special circumstance, if the debtor has come to be in excess of his/her obligation by donating his/her own property to another person, such act constitutes a fraudulent act. However, if the creditor seeking revocation of a fraudulent act denies the beneficiary of his/her claim that the debtor’s monetary payment is a gift to the beneficiary, the burden of proving that the monetary payment constitutes a gift is on the part of the creditor who claims the fraudulent act (see, e.g., Supreme Court Decision 2005Da28686, May 31

2) As to the instant case, the following circumstances, which are acknowledged by comprehensively taking account of the entire purport of pleadings as to the statement Nos. 3 through 6 (including serial numbers), and the testimony of the Maximum witness of the first instance court, were opened on March 30, 2009. From April 2, 2009 to July 1, 2009, the maximum amount of money was deposited over 30 times from O to O’s account, and even after O was deposited from O’s account, the maximum amount of money was deposited from O’s account to O’s account. From April 4, 2009 to May 5, 2009, it appears that O’s account was opened under the name of O’s maximum amount of money deposited from O’s account to O’s account. However, it appears that O’s maximum amount of money deposited from O’s account to O’s account and received money from O’s account.

3) Therefore, without any need to further examine whether the instant monetary payment act constitutes a fraudulent act, the Plaintiff’s primary claim is premised on the premise that the leastO donated KRW 205,905,00 to the Defendant.

3. Judgment on the conjunctive claim

A. The parties' assertion

1) Plaintiff

If the instant OO bank account is used by the leastO bank account, the instant monetary payment act using the said account constitutes a fraudulent act that reduces the property liable in relation to the Plaintiff’s general creditor. Therefore, the Defendant and the leastOO must cancel the instant O bank agreement within the limit of KRW 132,715,200 with respect to the instant O bank account concluded on July 1, 2009, and the Defendant must return the said money to the Plaintiff as compensation for value.

2) Defendant

Even if the instant monetary payment act constitutes a name trust of deposit holders, the management and use of the instant Obank account by the OO is merely a monetary transaction of the OOO that began on behalf of the Defendant who had been engaged in the business of Internet banking, etc., and it does not constitute a fraudulent act on the ground that it did not intend to avoid the trend of claims by other creditors.

B. Determination

1) The fact that the leastO entrusted the name of the owner of the instant O bank to an O bank account that he/she managed by the Defendant is recognized as above. However, if the leastO had caused the Defendant to have an excess of the liability by trust account in the name of the owner of the instant O bank account, it constitutes a fraudulent act as a juristic act reduced by the liability relationship between the leastOO and the Defendant, under the trust contract in the name of the owner of the instant O bank account. On the other hand, in external relationship between the financial institution and the third party, unless the title trust contract is terminated, the payment of money deposited in the instant O bank account in the name of the Defendant cannot be sought or seized, as long as the bank or the third party did not request the payment of money deposited in the instant O bank account in the name of the owner of the instant O bank account in the name of the owner of the instant O bank (see Supreme Court Decision 2014Da21238, Jul. 23, 2015).

2) However, with respect to the method of restitution following the cancellation of such fraudulent act, in principle, restitution following the cancellation of fraudulent act shall be based on the return of the object itself, and it shall be based on the return of value exceptionally to the extent that it is impossible or considerably difficult. The title trustee is obligated to transfer the right acquired under a contract with the other party in relation to the title truster to the title truster. In the event that the deposit principal trust contract is concluded between the contributor and the deposit holder, the title trustee shall be deemed to have the obligation to transfer the right to deposit return to the financial institution to the contributor upon the request of the contributor. Thus, if the deposit principal trust contract is cancelled as it constitutes a fraudulent act, restitution following the cancellation shall be made by transferring the deposit claim to the title trustee to the financial institution and ordering the financial institution to notify the transfer to the truster (see Supreme Court Decision 2014Da212438, Jul. 23, 2015).

According to the above evidence, it is acknowledged that the MaO has become zero won of the balance of the above account on November 29, 2009 by using all the money deposited in the account of the instant OO bank by the instant monetary payment act. In the end, the Plaintiff can seek to transfer the deposit claim of the instant OO bank to the MaOO bank and to notify the transfer to the OO bank due to the cancellation of fraudulent act, and cannot seek the return of deposit amount by each of the instant monetary payment acts.

3) Therefore, the Plaintiff’s preliminary claim premised on the premise that, in a case where the deposit holder’s title trust act is revoked as a fraudulent act, it is possible to seek a return of the money deposited in the trust account due to such restitution to the original state, is without merit to further examine whether the act of title trust of the deposit holder’s account in the instant O bank account against the Defendant of the leastO bank constitutes a fraudulent act (the balance of the instant OO bank account appears to be zero at present, and it is also difficult to order only revocation of the fraudulent act under the circumstance that it is impossible to restore it to its original state.

4. Conclusion

Therefore, all of the plaintiff's claims, including the extension and addition in the trial, shall be dismissed as it is without merit, and the judgment of the court of first instance is just, and it is dismissed in its conclusion, and it is so decided as per Disposition by the assent of all of the plaintiff's appeal and the main and conjunctive claims expanded or added in the trial.