It is difficult to recognize the act of paying money to the spouse in excess of debt as a title trust or repayment, and it is reasonable to see it as a donation. This constitutes a fraudulent act.

It is difficult to view the act of paying the instant money as a repayment for title trust and loan under various circumstances, and the act of making a donation of money to the Defendant who is the spouse of the obligor constitutes a fraudulent act by reducing the obligees’ joint security, and the Defendant’s bad faith is presumed as a beneficiary.

2013 Gohap471 Revocation of Fraudulent Act

Korea

The AA

November 15, 2013

November 29, 2013

1. On August 9, 2011, between the defendant and the non-party ParkB, the contract for the gift of the OOO members concluded on August 9, 201 and the contract for the gift of the OO members concluded on August 10, 201, respectively.

2. The defendant shall pay to the plaintiff 5% interest per annum from the day following the day when this judgment became final and conclusive to the day of complete payment.

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

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. Tax claim against the Plaintiff’s stuffB

"1) On July 8, 201, OB sold 1636 m2, 766.9 m2 (hereinafter “1 real estate of this case”) to PCC and Ed OB, and completed the registration of ownership transfer on August 9, 201. On the same date, on August 9, 2011, ParkB sold 1562 m2, 139 m2, 139 m2 (hereinafter “2 real estate of this case”) to POO and completed the registration of ownership transfer on the same day to POO, and on October 31, 201, notified the head of the tax office affiliated with the Plaintiff to pay the capital gains tax of this case 1,200 m20 m20 m2,000,000 m2,000.

3) ParkB did not pay the said transfer income tax until now, and as of March 5, 2012, the amount of delinquent capital gains tax due to the transfer of the instant 1 and 2 real estate reaches KRW OB.

B. Payment, etc. of money to the Defendant by ParkB

ParkB received full payment of the purchase price for the instant 2 real estate from ParkE on August 8, 2011, and received full payment from the UCC and ED on August 9, 2011, and used OOOOO to repay the Defendant’s obligations to the Credit Guarantee Fund that he/she is his/her husband (on August 9, 2011, the buyer directly transferred DD to the new bank account of the Credit Guarantee Fund), and on August 10, 201, remitted OOOOO to the Defendant’s South-Seoul Agricultural Cooperative account.

(c) insolvent of ParkB;

ParkB had been in excess of obligations at the time of August 9, 201 and August 10, 2011.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, 4, 5, Eul evidence No. 4, 10-1, the purport of the whole pleadings

2. Determination

A. Formation of preserved claims

Although it is required that a claim that can be protected by the obligee’s right of revocation has arisen prior to the commission of an act that could be viewed as a fraudulent act in principle, it is highly probable that at the time of the fraudulent act, there has already been legal relations that would serve as the basis of the establishment of the claim, and that the claim should be established in the near future. In the near future, where the probability of the claim has been realized and the claim has been created in the near future, the claim may also become a preserved claim (see, e.g., Supreme Court Decision 2000Da37821, Mar. 23, 2001

Income tax on the gains from transfer of health account and assets is a tax on preliminary return and payment. As such, the liability for payment is abstractly established on the last day of the month (the month to which the date of the transfer of assets belongs) in which the amount that serves as the tax base is derived from the interpretation of Article 21(2)2 of the Framework Act on National Taxes, etc. (see, e.g., Supreme Court Decision 88Nu2519, Oct. 13, 1989). As such, the transfer income tax claim of this case was established on August 31, 201, which is the last day of the month to which the date of completing the registration of transfer of ownership of each of the instant real estate belongs ( August 9, 201), and on August 10, 2011, in which ParkB paid money to the Defendant, the Plaintiff’s right to delay in the transfer income tax of this case was not yet established.

However, since the sales contract for each of the instant real estate, which serves as the basis for the establishment of a transfer income tax claim, was concluded on July 8, 201 and August 9, 201, and the purchase price was fully paid on August 8, 2011 and August 9, 2011, and the ownership transfer registration was completed on August 9, 201, and all of the ownership transfer registration was completed on August 9, 2011, the legal relationship that served as the basis for the establishment of a transfer income tax claim in this case was established on August 9, 201 and August 10, 201. Accordingly, it was highly probable that the transfer income tax claim in this case was established on the basis of the fact that the transfer income tax claim in this case was established, and its probability was realized, and thus the Plaintiff’s transfer income tax claim in this case was established on ParkB.

B. Determination as to the fraudulent act

1) Relevant legal principles

In a case where a debtor donated his/her own property to another person in excess of his/her obligation, barring any special circumstance, such act constitutes a fraudulent act, barring special circumstances. However, in a case where the debtor’s repayment pursuant to the principal place of obligation to a certain creditor while in excess of his/her obligation results in the decrease in the joint security of other creditors, such repayment does not constitute, in principle, a fraudulent act unless the debtor, in collusion with some creditors, made performance with the intent of undermining other creditors (see, e.g., Supreme Court Decisions 2005Da62167, Jun. 15, 2006; 2005Da28686, May 31, 2007).

In addition, with respect to the creditor who seeks revocation of a fraudulent act's assertion that it is a gift to the debtor's beneficiary, the beneficiary is not only denied the creditor's assertion that it was received as repayment of the existing debt, and as seen in the above legal principle, there is a big difference between the debtor's act of paying the money and the creditor's assertion and proof depending on whether it was a gift or a repayment. Thus, in order to recognize the above act of paying the money as a fraudulent act, it should be proved that there are special circumstances mentioned above, such as the fact that the act of paying the money constitutes a gift, or that it constitutes the act of paying the money, or that it constitutes the act of paying the creditor's intent to harm the creditor (see, e.g., Supreme Court Decision 2005Da28686, May 31, 2007).

2) Parties’ assertion

A) The plaintiff's assertion

ParkB’s payment to the Defendant of the sum of OOB’s payment on August 9, 201 and August 10, 201 (=OO’s payment by subrogation + Cash Transfer OO’s payment by subrogation) is a donation to the Defendant.

B) Defendant’s assertion

① At the time of ParkB’s purchase of the instant real estate from KimF, the Defendant paid OB out of the sales price to ParkB, which was governed by an implied title trust agreement between the Defendant and ParkB at the time. Therefore, the Defendant is the actual owner of the share of 13/120 (OOO/OO20) out of the instant real estate 1, and thus, the Defendant is entitled from ParkB to receive OB out of the sales price under a sales contract concluded on July 8, 2011, as the Defendant is the actual owner of the share of 13/120 (OO/O20) out of the instant real estate 1.

② On June 15, 2007, the Defendant lent the sum of OOOB to ParkB’s business partners (YG and CH) on June 15, 2007, and transferred the sum of OOOB to ParkB on June 20, 2007 and June 27, 2007, and lent OOOB to ParkB on February 1, 2008, such as remitting OOB to Kim II.

Therefore, the Defendant’s receipt of a total amount of OOO on August 9, 2011 and August 10, 2011 from ParkB does not constitute a fraudulent act, since it is a co-owned share holder who received a sales amount equivalent to a share or received a repayment of a loan.

3) Determination

According to the statements in Eul 1 through 4, 7, and 8 (including paper numbers), each of the following facts: (i) ParkB purchased the real estate of this case from KimF on March 29, 2003 to OE and completed the registration of ownership transfer on April 1, 2003; (ii) transferred from the defendant's head of Tong on March 31, 2003 to OB's head of Tong on April 1, 2003; and (iii) transferred property tax on the real estate of this case to OB's head of Tong on April 1, 2003; (iv) paid from the defendant's head of Tong on June 15, 2007 to OB's head of Tong; and (v) recognized that the defendant's head of Tong 207.27.27.207, respectively, transferred from OB to O27.207, respectively;

However, the following circumstances revealed by the evidence as seen earlier, namely, (i) ParkB and the Defendant are legally married couples; (ii) other than the above transfer details, from the Defendant’s passbook to ParkB’s passbook or from ParkB’s passbook to the Defendant’s passbook; and (iii) in light of such transfer details, it is difficult to conclude that the amount transferred from the Defendant’s passbook to ParkB’s passbook on March 31, 2003 and April 1, 2003 is part of the purchase price of the instant real estate; (iii) it is difficult to conclude that the Defendant’s money transferred from GG, SH, Kim II, and ParkB’s passbook to the Defendant’s passbook is a loan to ParkB; and (iv) it is difficult to view that the repayment after the lapse of 4 years from the time of lending money was made to the Defendant 100,000,000 won, as alleged in the empirical rule, and it is difficult to view that the Defendant’s loan was made from 180,1981.

Since ParkB paid OOO to the Defendant on August 9, 201 and August 10, 2011, the fact that ParkB, in excess of debt, donated money to the Defendant constitutes a fraudulent act by reducing the creditors’ joint collateral, and the Defendant, a beneficiary, is presumed to have been malicious.

(c) Methods of reinstatement;

Therefore, both the contract of donation between ParkB and the defendant on August 9, 201 and the contract of donation between OOOOO members concluded on August 10, 201 and the contract of donation between OOOO members concluded on August 10, 201 shall be revoked as it constitutes a fraudulent act. Since it is impossible or considerably difficult to return the original amount of money which is the object of the fraudulent act, the defendant is obligated to pay to the plaintiff compensation for its value at a rate of 5% per annum as stipulated in the Civil Act from the day following the day when this judgment becomes final and conclusive to the day when the payment is made.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.