Seoul Southern District Court 2015Kadan232655 ( December 20, 2016)

It is also known that there was a fraudulent act and that there was an intention to injure the delinquent taxpayer.

When the State exercises its right of revocation, it was known that the existence of the fraudulent act was known and that there was an intention to injure the delinquent taxpayer, and the gift contract made in excess of the debt constitutes a fraudulent act.

Article 30 of the National Tax Collection Act: Revocation and Restoration of Fraudulent Act

§ 406. Revocation of Civil Code

2017Na50629 Revocation of Fraudulent Act

Korea

Dok Park

Seoul Southern District Court 2015 Ghana 232655

September 7, 2017

October 19, 2017

1. Revocation of a judgment of the first instance;

2. The gift agreement concluded on July 31, 2013 between the Defendant and Kim○○ shall be revoked within the limit of KRW 87,00,000.

3. The defendant shall pay to the plaintiff 87,00,000 won with 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of complete payment.

4. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Facts of recognition;

A. The Plaintiff, who runs the housing construction and sales business, has a global income tax on August 31, 2013, 288, 864, 360 won in arrears, 2012, and 31 December 31, 2012 at the time when the liability for tax payment is established, with respect to the Plaintiff’s global income tax (hereinafter “the instant credit”). However, on July 31, 2013, the Plaintiff entered into a contract to donate real estate listed in the separate sheet (hereinafter “instant real estate”) to the Defendant, who is his spouse, on the same day, and completed the registration of ownership transfer to the Defendant on the same day.

C. At the time of the conclusion of the gift contract of this case, the instant real estate was set up a collateral of the debtor Kim○○, the mortgagee AAAAA bank, the maximum debt amount of KRW 110,400,000 with respect to the instant real estate, and the debtor Kim○, the debtor Kim○, the mortgagee Kim△△, the mortgagee Hong△△△△, the maximum debt amount of KRW 52

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, 7, Eul evidence No. 1, the purport of the whole pleadings

2. Determination as to whether the exclusion period expires

A. The defendant's assertion

As to the amount of delinquent local taxes for the year 2012, the Plaintiff withheld the disposition on June 30, 2014, and cancelled the disposition on September 23, 2014, the Plaintiff was aware of the fact that the instant gift contract and its fraudulent act were committed at the said time. However, the instant lawsuit was filed on September 24, 2015, for which one year was passed thereafter, and thus, the exclusion period was excessive, and thus, it is unlawful.

B. Determination

(1) When the State exercises its right of revocation against a legal act of a delinquent taxpayer by making a claim preserved for a claim against the State, whether the State was aware of the grounds for revocation in relation to the starting point of the limitation period should be determined based on the tax official’s awareness in charge of the duty to collect and preserve tax claims, barring any special circumstance. In such a case, it should not be determined based on the public official’s awareness of other public officials in charge of the duty to register and register the disposal of property of a delinquent taxpayer. Therefore, when it is recognized that a tax official was aware of not only the fact of disposal of property of a delinquent taxpayer but also the existence of a specific fraudulent act and that he/she had the intent to deceive the delinquent taxpayer, the State may be deemed to have known of the grounds for revocation at that time (see Supreme Court Decision 2015Da24

(2) 갑 제8, 9, 10호증, 을 제1 내지 4호증(가지번호 포함)의 각 기재에 의하면, 원고가 김○○에 대한 2012년도 귀속 체납액에 대하여 정리보류심의를 한 후 2014. 6. 30. 정리보류처분을 한 사실(원고의 국세징수사무처리규정은 정리보류심의를 하면서 체납자의 재산상태, 체납자의 재산처분행위의 사해행위성 여부 등을 조사하도록 하고 있다), 김○○ 소유의 군포시 산본동 소재 건물에 대한 수원지방법원 2013타경XXXX호 임의경매 사건에서 2014. 9. 22. 배당된 38,727,159원을 처리하기 위하여 2014. 9. 23. 위 정리보류처분을 취소한 사실, 원고가 2015. 9. 24. 이 사건 소를 제기한 사실은 인정된다. 그러나 이러한 사정만으로는 조세채권의 추심 및 보전 등에 관한 업무를 담당하는 세무공무원이 김○○의 이 사건 증여계약 체결 사실과 김○○에게 사해의 의사가 있었다는 사실을 알았다고 인정하기에 부족하고, 달리 이를 인정할 증거가 없다(오히려 갑 제9, 11 내지 14호증의 각 기재에 변론 전체의 취지를 보태어 보면, 위 정리보류처분 당시 원고는 2건의 경매대상 부동산 이외에 이 사건 부동산과 그에 관한 이 사건 증여계약의 존재를 알지 못하고 있다가 2014. 12.경에서야 원고 산하 서울지방국세청 추적조사팀이 이 사건 증여계약 사실을 알게 되었고, 이후 금융기관에 김○○ 명의의 금융거래정보의 제공을 요구하는 등을 통하여 이 사건 증여계약의 사해행위 여부에 관한 조사를 한 사실을 인정할 수 있으므로, 원고로서는 그 무렵에 이 사건 증여계약의 존재와 김○○에게 사해의사가 있었다는 것을 알게 되었다고 봄이 상당하다).

3. Judgment on the merits

A. Establishment of fraudulent act

According to the above facts, the claim in this case occurred on December 31, 2012, which was prior to the date of entering into the gift contract in this case, and thus, is subject to preservation claims for revocation of fraudulent act, and the contract in this case entered into between Kim ○○ and the defendant who is his spouse, constitutes a fraudulent act detrimental to the joint security of the general creditors of Kim ○○ and the defendant's bad faith is presumed.

(c) Revocation of fraudulent act and reinstatement;

(1) In a case where a legal act on real estate constitutes a fraudulent act, in principle, cancellation of the fraudulent act and cancellation of the registration of transfer of ownership, etc. However, in a case where a fraudulent act was committed on real estate on which a mortgage is established, such fraudulent act shall be established only within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate. Therefore, in a case where a registration of creation of a mortgage was cancelled by repayment, etc. after a fraudulent act, ordering cancellation of a fraudulent act and restoration of the real estate itself would result in a violation of fairness and fairness because ordering restoration of the portion that was not the joint security of the general creditors. Thus, an order to cancel a fraudulent act and claim compensation for the value of the real estate shall not be allowed within the extent of the balance obtained by deducting the secured debt amount of the mortgage (see, e.g., Supreme Court Decisions 2007Da4004, Jun. 11, 200; 200Da45723, Dec. 12, 2000).

(2) In light of the overall purport of the pleadings as to the fact finding about Gap's evidence Nos. 4 and 8, the first instance court's Hong △△△△△△, the total amount of KRW 219,00,000 of the instant real estate at the time of the date of the closing of argument. The amount of KRW 92,00,000 for the secured debt of Hong △△△△△△△△△ Bank established at the time of the instant donation agreement, and KRW 40,000 for the secured debt of the Hong △△△△△△△△△△△△△△△△△△△△ was revoked on July 22, 201, and thereafter, on September 12, 2013, the amount of KRW 80,000 for the secured debt amount of KRW 130,000 for each of the instant real estate, the amount of KRW 300,000 for the secured debt amount of KRW 80,000,000 for the Plaintiff.

4. Conclusion

The judgment of the first instance court is unfair on the ground that it is unfair to conclude otherwise, and it is revoked and accepted the plaintiff's claim

It is so decided as per Disposition.