Ulsan District Court 201 Gohap5413

Property division due to divorce is considered to have already been subject to property division exceeding a reasonable scope, and gift contracts constitute fraudulent act.

Lawsuits seeking cancellation of agreement and restitution thereof are illegal to have been filed after the expiration of the exclusion period of one year, and in the case of a gift contract, it is reasonable to cancel the contract as a fraudulent act as it falls under the division of property of divorce exceeding the reasonable scope.

Article 30 of the National Tax Collection Act, Article 406 of the Civil Act

2013Na51308 Revocation of Fraudulent Act

Appellant-Appellant

Korea

Appellant-Appellants

The lowest Z

2011 Gohap 5413 Revocation of Fraudulent Act

December 11, 2014

February 26, 2015

1. Of the judgment of the court of first instance, the part concerning the revocation of fraudulent act and the claim for restitution concerning the real estate listed in the annexed list No. 1 shall be modified as follows:

A. As to the real estate listed in paragraph (1) of the attached Table No. 1 between the Defendant and No.A, the gift agreement concluded on X. 1.Y. shall be revoked within the limit of Y6,696, X30 won.

B. The defendant shall pay to the plaintiff Y6,696, X30 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

2. All remaining appeals by the plaintiff and the defendant are dismissed.

3. 3/5 of the total litigation costs is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

1. Purport of claim

A. The defendant and TradeA

1) As to the real estate stated in paragraph 1 of the attached list, the gift agreement entered into on 200 X. X. 17.

244,2 Y0,50 X Won limits:

2) As to the real estate listed in Attachment No. 2, a gift contract concluded on January 5, 201;

3) With respect to the real estate listed in paragraph 4 of the attached list, the termination of the agreement entered into on March 1, 201

3X,570,57 X Won

Each cancellation shall be revoked.

B. The defendant

1) Payment to the Plaintiff of 28X,841,14X Won and 5% interest rate per annum from the day following the day this judgment became final and conclusive to the day of full payment;

2) In relation to the real estate listed in paragraph 2 of the attached list, Nowon District Court CC registry office of January 1, 2010, followed the procedure for cancellation registration of transfer of ownership completed by No. 470 on January 1, 201.

2. Purport of appeal

A. The plaintiff

The part against the defendant in the judgment of the first instance shall be modified as stated in the purport of the claim.

B. Defendant

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Basic facts

A. Tax claims against the Plaintiff’s Trade Union

1) In collaboration with DoD, Trade and Purchase of 26 lots of land of 40-12,160 square meters, EE-dong 40-12,00 square meters (hereinafter referred to as “land subject to brokerage of this case”) is mediated, and Trade of 1,18X, X0,000 won (hereinafter referred to as “instant brokerage commission”) was paid, and no global income tax and value-added tax was reported and paid.

2) From November 30, 200 X to December 11, 200, the head of the Gold District Tax Office conducted a tax investigation and confirmed that TradeA had received the instant brokerage commission. On June 1, 201, the head of the Gold District Tax Office imposed and notified TradeA of value-added tax of 19X,66X,58 X won for the first period of 2008 and global income tax of 121,765,570 won for the year 2008 as indicated below (hereinafter “each of the instant taxation claims”), and the amount of each of the instant taxation claims as of X on January 1, 200 X is KRW 30,04X,02X.

(b) Disposition by the Trade Commission;

1) At the time of September 17, 2009, TradeA entered into a donation contract (hereinafter referred to as "the first donation contract of this case") with the defendant who was his spouse as of September 17, 2009 with respect to the real estate listed in paragraph (1) of the attached Table No. 1 (hereinafter referred to as "real estate No. 1 of this case"), and completed the registration of transfer of ownership on October 7, 2009 to the defendant as BB District CourtCC registry No. 4499X. 7, 2009.

2) On January 5, 2010, No.A entered into a donation contract (hereinafter referred to as “instant second donation contract”) with the Defendant with respect to the real estate listed in paragraph 2 of the attached Table No. 2 (hereinafter referred to as “real estate No. 2”) which he/she own with the Defendant, and completed the registration of ownership transfer with BB District CourtCC registry No. 470 on January 6, 2010.

3) On September 11, 2009, the Defendant entered into a donation contract with the No. 4 of the attached Table No. 4 (hereinafter referred to as the “No. 4 real estate of this case”) to which he own, and completed the registration of ownership transfer under the receipt No. 4098 X on September 11, 2009. On March 1, 201, 2010, the Defendant revoked the said donation contract (hereinafter referred to as the “instant rescission”) and cancelled the registration of ownership transfer on the same day.

(c) the insolvency of the Trade Union and Home Affairs Commission;

From the date of the first and second donation contract and the rescission of agreement to the date of closing argument in the trial, NoA had the value of the passive property in excess of the value of the active property as follows.

[affirmative Property]

① Real Estate 1 of this case: approximately KRW 279,17X,11 X (328,57X,00,000, the market price of the real estate 1 of this case, which was the value of the real estate 328,57X,000 won, which was divided in proportion to the maximum amount of debt 6X,00,000 won for joint mortgage 1 and 49,39X,88X won in proportion to the value of each of the real estate 1 of this case).

② Real estate No. 2 of this case: Market price of approximately 8X,000,000 won

③ Real estate of this case No. 3: Market price of approximately KRW 3,758,00

④ Real estate No. 3 b of this case: Market price of approximately KRW 601,00

⑤ The third real estate of this case is about KRW 7,574,00 in the market price.

6) Real estate No. 4 of this case: The market price of approximately 8X,184,382 won ( approximately 10X,787, X00 won, the market price of the real estate No. 4 of this case, which is the value of the real estate No. 10X,11 X won, as described in the above paragraph (1)

7. Land listed in Attachment List 5 (hereinafter referred to as "real estate of this case"): approximately KRW 2X,040,000 at the market price

(8) Total amount: approximately 492,33X, X00 won

[negative Property]

① Each tax liability of this case: 30X,041,020 won in total (as of October 7, 2000)

② The obligation to loan to J Saemaul Savings Depository: approximately KRW 17X,00,440 (1,00,000,000 for the actual collateral obligation of the joint collateral security established on the real property of this case 1 and 4) + the actual collateral obligation of the collateral security established on the real property of this case 4,002, X40, and September 17, 2009)

(3) Obligations to west: 36X, X00,000 won

(4) Total amount: approximately 843,44X,46X won

[Reasons for Recognition] A without dispute, entry of Evidence Nos. 2, 7, 8, 9, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 22, 23-2, 24-1, 24-2, 26, 29-1, 2, 3, 30 and 29-1, 2, 30, 200, 200, 30, 200, 12, 14, 17, 17, 18, 19, 20, 21, 23-2, 23

2. Determination on this safety defense

A. The defendant's assertion

The lawsuit of this case Nos. 1 and 2, and the claim for cancellation of agreement is separate lawsuits, so the period of filing a lawsuit should be separately determined. The plaintiff confirmed the ownership relationship of the 4 real estate of this case while provisionally seizing the real estate in the name of the defendant, including the 4 real estate of this case before the filing of the lawsuit of this case, and submitted a copy of the register of the 4 real estate of this case in documentary evidence at the time of the filing of the lawsuit of this case. Thus, at the latest, the cancellation of agreement of this case was known to be fraudulent at the time of the filing of the lawsuit of this case. Thus, one year after the filing of the lawsuit of this case and the claim for cancellation of agreement and restitution

B. Determination

On August 19, 201, the Plaintiff filed the instant lawsuit on August 19, 201, and sought only cancellation of the instant agreement and restitution or compensation for value, and the Plaintiff added a lawsuit seeking cancellation of the instant agreement and restitution to its original status only on February 21, 2013, and the record is apparent. However, since the original claim is a separate claim, the purport of the claim and the cause of the claim are different, whether the limitation period under Article 406(2) of the Civil Act is complied with should be determined at the time when the claim is added. Considering the purport of the statement and the entire argument, it is reasonable to deem that the Plaintiff, as the Plaintiff filed the instant lawsuit on August 19, 201, stating that “the Plaintiff was aware of the Plaintiff’s fraudulent act after obtaining a certified copy of the instant real estate title X, which was owned by No. 10, X 13, 2011, and that the Plaintiff was aware of the Plaintiff’s fraudulent act as the ground for cancellation of the instant agreement.”

3. Determination as to the cancellation of the first and second donation contract of this case and the claim for restitution

(a)the existence of preserved claims;

1) We examine, as seen earlier, the instant global income tax claim on June 30, 2008, and as seen earlier, that each of the instant global income tax claims was established on December 31, 2008, and since the instant global income tax claim was prior to the conclusion of the instant donation contract, each of the instant tax claims can be the preserved claim.

2) As to this, the Defendant asserts that the instant brokerage commission payment agreement was null and void in the relevant civil cases, and thus, there is no taxable transaction, and thus, each of the instant taxation claims is nonexistent.

On the other hand, the issue of which income is subject to imposition is that the court's judgment (FF District Court Decision 2009Gahap8673) is rendered on the ground that it is concluded that there is a taxable capacity to control and manage the profit in reality in terms of economic aspect, and that there is a taxable capacity, and the legal assessment of the causal relationship with which the income has been obtained is lawful and effective (see Supreme Court Decision 95Nu758, Nov. 10, 1995). According to the evidence No. 1, in the lawsuit for the return of unjust enrichment filed by the purchaser of the land through the brokerage in this case against No. A and west, the agreement for the payment of the brokerage commission in this case is concluded with No. 55, and null and void by No. DoD, and even if the brokerage commission agreement in this case is null and void, it is not reasonable for the defendant's assertion that it is subject to business income due to the brokerage agreement in this case.

B. Whether the fraudulent act was established

1) Whether division of property under the first and second donation contract of this case constitutes division of property

A) The plaintiff's assertion

The divorce between the Defendant and the Trade Union on February 3, 2010 constitutes a fraudulent act without the need to examine the appropriateness of the agreement, since the divorce between the Defendant and the Trade Union on February 3, 2010 is the most marital for the evasion of the Plaintiff’s obligation.

B) Determination

(1) Comprehensively taking account of the overall purport of the arguments in the statement No. 10, 15, 16, 18, and 24-1 of the evidence No. 1, it is difficult to recognize that the defendant acquired the real estate No. 5 of this case owned by the No. 1 after divorce as a voluntary auction, and that the defendant and the No. 1 were convicted of the crime of interference with the exercise of rights by removing the above building. The Trade Union applied for divorce from the last day of the tax investigation, and the No. 1 filed an application for divorce on May 23, 2008. The right to collateral security established by the No. 2 of this case with the debtor on May 23, 2008 remains, even after the divorce of the Trade Union and the defendant was divorced. However, it is insufficient to recognize that the divorce between the defendant and the No. 1 was the largest divorce.

(2) Rather, the following circumstances acknowledged by comprehensively taking account of the overall purport of evidence Nos. 3, 6-1 through 19, and 7-1 of evidence Nos. 5-1 of the above facts and evidence, namely, ① the Defendant and No.A. were married on September 17, 1986, but on January 28, 200, they were divorced on the ground of frequent violence with the foreign will of No.A. and thereafter returned on December 12, 2001. However, the Defendant and No.A. reported divorce again on February 3, 201 due to the marriage between the couple, ② the Defendant and No.A. concluded the instant contract for division of property for the Defendant on September 17, 2009 and January 5, 2010, and the Plaintiff’s assertion that the registration of ownership transfer was completed on the instant real estate is without merit.

2) Whether division of property is appropriate

A) Property division subject to division

(1) General standards

The property subject to division of property is a common property formed through mutual cooperation between the parties during the marriage. In full view of the following circumstances acknowledged by comprehensively taking account of the overall purport of pleadings in the evidence Nos. 2, 23, and 1 and 4 (including the paper numbers) as follows: ① the Defendant has been operating a restaurant, a discount, etc. from around 192; ② the Defendant and Trade Union did not have any particular division of property at the time of the first divorce on January 28, 2001; ② the Defendant and Trade Union did not have any other division of property at the time of the first divorce; and all the property acquired after marriage by the Defendant and Trade Union and Trade Union, it is reasonable to deem that all the property acquired after marriage is a common property formed in cooperation among them.

(2)In the absence of dispute

b)The portion in respect of which there is no dispute between the Defendant on the subject of division of property is indicated as follows:

(iii)the disputed portion;

① 308,450/504,099 Shares (market price of 185,11X,43X won) among the 6 immovable property of this case

Since the Defendant asserted that the shares of 308,450/504,09, among the 6 real estate of this case, were acquired by the Defendant after the divorce, they are not active property subject to division of property. Thus, according to the evidence No. 32-1, the Defendant received the registration of ownership transfer for the shares of 308,450/504,09, among the 6 real estate of this case from GG on November 9, 2012, it is recognized that the Defendant received the registration of ownership transfer for the shares of 308,450/509, among the 308,450/504,09, and according to the above evidence, DaH completed the provisional registration on April 11, 2008, and the Defendant acquired the above provisional registration right from MaH on March 24, 2009, the Defendant acquired the above provisional registration right prior to the divorce. Therefore, it is reasonable to deem the above shares that are subject to division of property.

(2) Claims against shipG

At the time of the divorce, the Plaintiff asserted that the right to make a provisional registration as to the above portion of 308,450/504,09 out of 6 real estate of this case was established with the maximum debt amount of 50,000,000 won under the name of the Defendant, and thus, the Defendant should be included in active property subject to division of property. As seen earlier, as seen above, the Defendant acquired the right to make a provisional registration as to the above portion of Hah from Hahh from Hah, and upon receipt of the above provisional registration from HaG, Hah was established with the maximum debt amount of 50,00,000 won on the same day. The Defendant can recognize the establishment of the establishment of the above provisional registration on the same day after acquiring the above right from Mah from Ha and then cancel the registration on the same day. According to these facts, the Plaintiff’s assertion that the above right to make a provisional registration was established with the right to secure the above provisional registration is difficult.

③ Each tax liability of the instant case and liabilities of the NoAD

The plaintiff bears each of the above obligations with respect to the formation and maintenance of common property.

Although it is alleged that each of the above obligations should be included in the small-sized property subject to division of property, it is not related to ordinary family affairs, and there is no other evidence to recognize that each of the above obligations is the obligation borne by the Trade Union and Labor Relations Commission with the formation and maintenance of common property. Therefore, the plaintiff's above assertion is without merit

④ Defendant’s credit loan obligations KRW 10,000,000

The Defendant alleged that since the Defendant loaned KRW 10,000,000 to Trade Union on July 27, 2009, the obligation of the loan should be included in a small property subject to division of property. Therefore, it is insufficient to recognize that the above obligation of the loan was the obligation of the Defendant with the formation and maintenance of joint property, and there is no other evidence to acknowledge it. Thus, the Plaintiff’s above assertion is without merit.

B) Appropriate division of property

(5) As the Defendant’s 2-X 2-X 3-X 3-X 1-M 2-M 1-M 3-M 1-M 2-M 1-M 3-M 1-M 3-M 1-M 3-M 1-M 1-M 3-M 3-M 1-M 774,00,00,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,00,00,00,00,00.

C) Property held by the Defendant after division of property

(1)In the absence of dispute

Division of Property between the parties concerned, the part in which the defendant has no dispute

as listed in the following table:

(ii)the disputed portion;

① Real estate No. 5 of this case

The defendant, at the time of the divorce, was No. 5 at the time of the agreement, and the defendant acquired the above real estate through a voluntary auction, and argued that the above real estate is not an active property acquired through the division of property. Thus, according to the evidence No. 24-1, the owner of the above real estate was No. A at the time of agreement, and the defendant can recognize the fact that the above real estate was acquired through a voluntary auction after the divorce. Thus, the defendant did not acquire the above real estate through the division of property. Therefore, the defendant'

② 316,715/504,099 Shares among the 6 immovable property of this case

Since the Defendant received shares 8,265/504,09 from TradeA, the above shares are not active property held in relation to the division of property, and there is no evidence to support the Defendant’s above assertion. As seen earlier, the Defendant’s above assertion is without merit. Meanwhile, the right to provisional registration on shares 308,450 among the 6 real estate of this case is subject to division of property, and the Defendant acquired the above shares by exercising the right to complete a pre-sale after the divorce. Therefore, it is reasonable to view that the Defendant had held shares 316,715/504,09 among the 6 real estate of this case by exercising the right to complete a pre-sale after the divorce.

③ Joint collateral security obligation of 195,000,000 won, which was created on the real property Nos. 1 and 4 of the instant case

The defendant asserts that the total amount of KRW 130,00,000 and KRW 195,000,000 for the secured debt of the joint collateral security established in the name of the defendant with respect to the property division should be included in the small property held by the defendant in relation to the property division, which was established in the name of the defendant with respect to the property division of KRW 1,30,000,000 for the secured debt of KRW 1,40 and the secured debt of KRW 1,000 for the secured debt of the joint collateral security of KRW 1,00,00,000 for the transferred property under the name of the defendant. Accordingly, according to each of the evidence Nos. 1, 9,17, the defendant is 60,000 for the secured debt of KRW 1,400,000,000 for the above secured debt of KRW 1,000,000 for the secured debt of KRW 1,000,000 for the above real property under the name of the defendant.

④ The secured debt of the right to collateral security established on the second real property of this case was 49,002,440 won

The defendant asserts that the secured debt of the right to collateral security established in the name of the debtor NoA and the J Saemaul Fund, should be included in the passive property acquired through division of property, so long as the defendant takes over the secured debt of the right to collateral security established in the name of the debtor No. 2 and the J Saemaul Fund. Therefore, the defendant's above assertion is without merit

⑤ Debt 17X,00,000,000 for the Defendant’s subrogation

The defendant asserted that since the 17X,000,000,000 won was loaned to 17X,00,000,000 won as joint collateral in order to pay for the debt of 17X,00,000 won to ASEAN, the above loan obligation should be included in the small property acquired by the defendant as division of property. Thus, according to the statement in Gap evidence No. 9, the provisional attachment order was issued on January 30, 200 with the claim amount of 15X,00,000 won as to the 1st real estate of this case on September 2, 201, the defendant can be recognized that the 1,4 real estate of this case was lent to 17X,00,000 won as joint collateral, the defendant did not have any other evidence to acknowledge that the defendant subrogated for the debt of ASEAN, and there is no other evidence to acknowledge that the defendant subrogated for the above debt of ASEAN.

(3) Sub-decisions

Therefore, the property value that the Defendant acquired through division of property is KRW 50X,68X,820 (=the instant case No. 1)

Real estate 328,57X,000 + KRW 8,00,000 of the instant 2 real estate + KRW 103,787,500 of the instant 4 real estate + KRW 103,500 of the instant 6 real estate + KRW 185,220,378 of the instant 7 real estate + KRW 186,942 of the instant 1/4 shares - Joint collateral Security Claim 195,00,000,000 of the instant 1/4 of the instant 7 real estate

D) The nature of the fraudulent act

(1) The first donation contract of this case

(A) As seen earlier, the Defendant, before receiving the donation of the first and second real estate in this case, shall raise an objection.

Of the instant 6 real estate, KRW 185,327,320 ( KRW 185,327,320,320 ( KRW 65,320,320), among the instant 7 real estate, and KRW 106,942, among the instant 1/4 shares among the instant 7 real estate (= KRW 185,220,378 + KRW 106,942) and positive property of KRW 65,00,327,320 ( KRW 185,327,320 - KRW 65,000), among the instant 1 and 4 real property, owned positive property of KRW 120,327,320 ( KRW 185,327,320 - KRW 65,00,000). Therefore, the amount of property division that the Defendant may additionally receive is the amount of property division of KRW 239,303,239,23930).

(B) However, according to the above facts, the defendant acquired the first real estate of approximately KRW 328,574,00 (as of September 17, 2009) at the market price of about October 7, 2009 (as of September 17, 2009) with approximately KRW 130,00,000,00 for the secured debt of the joint collateral security established in the name of TradeA with respect to the first and fourth real estate of this case (as of this case), which is about KRW 98,793,764 [Article 130,00,000 x KRW 328,574,00 x KRW 328,574,00 x KRW 103,787,00 x KRW 1036,786,797,207, KRW 209)]. Accordingly, the defendant acquired the real estate of this case at the above value of the real estate of this case (i.e., the value of the real estate of property of this case.

(2) The second donation contract of this case

As seen earlier, since the Defendant received a division of property exceeding a reasonable scope under the instant first donation contract, the instant second donation contract, which was subsequently made thereafter, constitutes a fraudulent act.

3) Determination as to the defendant's bona fide defense

Although the defendant alleged that at the time of the first and second donation contract of this case, he did not know that each of the above contracts constitutes a fraudulent act, there is no evidence to reverse the defendant's presumption of bad faith and to recognize the defendant's good faith, the above assertion by the defendant is without merit.

(c) Scope of revocation and methods of reinstatement;

1) The first donation contract of this case

According to the reasoning of the judgment below, Gap evidence No. 9 and the whole pleadings, the defendant can recognize the fact that on September 29, 2010, which was 1, 2010 after the conclusion of the contract of the first donation of this case, the joint collateral security right of 21,00,000 won against J Saemaul Savings Depository as the mortgagee. Thus, it is reasonable to cancel the first donation contract of this case and select the compensation for the equivalent value as the way of reinstatement. According to the result of the appraisal entrusted to K K Appraisal Corporation as of November 9, 2012, the market value of the first real estate of this case as of 400,700,000 won is 40,000 won and 60,000 won, 60,000 won and 60,000 won and 60,000 won and 60,000 won and 60,000 won and 60,000 won per actual maximum debt amount as of this case before the first donation of this case.

Therefore, the contract of donation No. 1 of this case is revoked within the limit of Y6,696, X30 won, and the defendant is obligated to pay to the plaintiff Y6,696, X30 won and damages for delay calculated by the rate of 5% per annum from the day after the date of confirmation of this decision to the day of full payment.

2) The second donation contract of this case

In this case, since the second real estate of this case was not an obstacle to the return of originals, the contract for the second donation of this case was completely revoked, and the defendant is obligated to implement the procedure for the cancellation of ownership transfer registration, which was completed by No. 470 on January 6, 2010, with respect to the second real estate of this case, No. 2 of this case, as the restoration to original state.

4. Conclusion

Therefore, among the lawsuits in this case, the cancellation of the agreement in this case and the claim for restoration to original state are unlawful, and the remaining claims of the plaintiff shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the conclusion of the part of the claim for cancellation of fraudulent act and restoration to original state with respect to the real estate No. 1 in this case is unfair, the plaintiff's appeal is partially accepted and the judgment of the court of first instance is modified as above, and the remaining appeal of the plaintiff and the defendant are dismissed as it is without merit. It is so decided