The confession is not valid because the confession is contrary to the truth and is not made due to mistake, and the revocation of confession is not valid, and the act of monetary payment by the insolvent debtor is fraudulent act.

Since the confession by the defendants cannot be deemed to be contrary to the truth and due to mistake, the revocation of confession is not effective, and the act of monetary payment by the debtor in insolvent status constitutes a fraudulent act.

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

2012 Gohap 54426 Revocation of Fraudulent Act

Korea

Kim AA et al.

December 2, 2016

on April 24, 2016

1. The Defendants and leB shall revoke their monetary payment activities on November 4, 201, respectively.

2. The Defendants shall pay to the Plaintiff 400,000,000 won with 5% interest per annum from the day following the conclusion of the judgment of this case to the day of complete payment.

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

Cheong-gu Office

The same shall apply to the order.

1. Summary of the parties' arguments;

A. The plaintiff's assertion

The Plaintiff is a creditor with a tax claim against leB. The Plaintiff is a creditor with a tax claim against leB. The Plaintiff sold each real estate listed in the separate sheet (hereinafter referred to as “attached real estate”) owned jointly with MaCC, his mother, and paid 80 million won out of the total contract deposit and intermediate payment of 2 billion won on November 4, 2010, which he received by leB, as the down payment of 2 billion won in Incheon Bupyeong-gu, Incheon, MOOno 136 and 14 units (hereinafter referred to as “OOono”) located in OOno 136, and paid 40 million won each to the Defendants by changing the buyer to the Defendants (hereinafter referred to as the “instant monetary payment”). Since the said monetary payment constitutes a fraudulent act, even if the repayment of the loan to the Defendants constitutes a fraudulent act, it also constitutes a collusion between BB and the Defendants, and thus, it should be revoked.

B. The defendants' assertion

In the meantime, since the Defendants received money from KimCC, not a leB, there is no fraudulent act between leB and the Defendants asserted by the Plaintiff.

Preliminaryly, leB was not in excess of the obligation at the time of the instant monetary payment, and the Defendant’s repayment of the loan to the Defendants is a bona fide beneficiary, and thus, the fraudulent act is not established.

2. Determination as to preserved claims

According to Gap evidence Nos. 1 and 18-1 through 27, the plaintiff had a taxation claim of KRW 3,430,685,270 as of November 4, 2010, which is the date of the monetary payment of this case against leB (hereinafter "the taxation claim of this case"), and its details are as follows.

(Contents omitted)

Since the portion notified after the act of monetary payment among the instant taxation claims was prior to the date of establishment of each tax liability, there was a legal relationship that serves as the basis of the instant taxation claim, and there was a high probability that tax claims were generated in the near future, and the possibility was realized by the notification in the near future. Accordingly, the instant taxation claim may be the preserved claim under the revocation of creditor’s revocation.

3. Determination as to the insolvency of leB

(a) Active property;

(i)an unsatisfy portion;

At the time of the instant monetary payment act, the parties concerned have no dispute over the fact that the leB had a deposit claim of KRW 1,196,567 against the △△ Investment Company.

2) 서초동 ◊◊◊하우스2 6층 501호

In determining whether a fraudulent act constitutes a creditor’s subject matter of revocation, if an asset owned by an obligor is provided as a physical collateral for another creditor’s claim, the portion provided as a physical collateral cannot be deemed a debtor’s liability property for the general creditors, and thus, only the balance obtained by deducting the amount of secured claim held by other creditors from the value of the asset provided as a physical collateral is assessed as an obligor’s active property. In such cases, where a joint mortgage is established on several real estate, the amount of secured claim borne by each real estate should be deemed as the amount apportioned the amount of secured claim by the joint mortgage in proportion to the value of each real estate provided as a joint mortgage in light of the purport of Article 368 of the Civil Act, barring any special circumstance (see, e.g., Supreme Court Decision 2010Da64792, Jan. 12,

을 제2호증의 28, 제3호증의 1, 제5, 6호증, 제11호증의 1의 각 기재에 의하면 다음과 같은 사실이 인정된다. ① □□□뱅크 주식회사가 주식회사 □□□□상호저축은행(□□□저축은행 주식회사로 상호가 변경됨)에게 부담하는 대출금채무를 담보하기 위하여 2008. 2. 1. 윤BB 소유인 서울 서초구 XX동 0000-0외 1필지 지상 ◊◊◊하우스2 6층 501호(이하 '501호'라 한다) 및 김CC 소유인 위 ◊◊◊하우스2 3층 202호(이하 '202호'라 한다)에 채권최고액 5,600,000,000원, 채무자 □□□뱅크 주식회사, 근저당권자 주식회사 □□□□상호저축은행으로 하는 공동근저당권이 설정되었다. ② 이 사건 금전지급행위 당시 위 공동근저당권의 피담보채권은 4,684,246,574원이다. ③ 서울중앙지방법원 2011타경5692 사건에서 실시된 시가감정결과 501호는 2,900,000,000원으로, 한국자산관리공사가 시행한 공매절차에서 실시된 시가감정결과 201호는 3,000,000,000원으로 평가되었고, 위 각 시가는 이 사건 금전지급행위일인 2010. 11. 4. 당시에도 유사하였던 것으로 추인된다.

If so, only 604,719,179 won can be assessed as active property of leB in the balance obtained by deducting the secured debt from the market value of 2,90,000,000 to the market value of 501 above 2,295,280,821 won (4,684,246,574 won x 49%) in proportion to the above 501 value.

3) Each 1/3 share in attached real estate.

According to the statements in Eul evidence Nos. 1 and 2-1 through 27, it is recognized that each of the 1/3 shares in attached real estate was assessed as KRW 5,405,723,677 in total as of August 30, 201 as a result of the market price assessment conducted in Jung-gu District Court, Yangyang-do, 201ta, 21507, and that the market price was similar at the time of November 4, 2010, which is the date of the instant monetary payment.

The plaintiff asserts that with respect to the right to collateral security established in the name of the largestGG, the amount of the secured debt of the above right to collateral security should be deducted in proportion to the share value of the leB and the KimCC.

In the event a joint mortgage is established on several real estate, if part of the debt is owned by the debtor and other parts are owned by the person who has pledged the property, considering the fact that the person who has pledged the property is in a position to exercise the mortgage on the real estate owned by the debtor by subrogation under the provisions of Articles 481 and 482 of the Civil Act, it is reasonable to view that the amount of the secured debt on the real estate owned by the debtor is the total amount of the secured debt on the joint mortgage unless there are special circumstances in which the person who has pledged the property is unable to exercise the right to demand a reimbursement against the debtor. Such a legal principle likewise applies to cases where some of the co-owned real estate is owned by the debtor and some other shares are owned by the other person who has pledged the property (see, e.g., Supreme Court en banc Decision 2012Da

According to the evidence Nos. 2-1 through 27, it is recognized that the right to collateral security established with the maximum debt amount of Sep. 11, 2006, the debtor KimCC and the mortgagee HH on September 1, 2006 on the attached real estate jointly owned by leB and KimCC. Thus, since some of the co-owned real estate are owned by the debtor, and other shares are owned by the surety, the total amount of the secured debt amount should be borne by KimCC in accordance with the above legal doctrine. The plaintiff's above assertion is without merit.

(iv) 2/3 shares in the real estate in Gangnam-do.

According to the statement Nos. 29, 3-2 of the evidence Nos. 29, 3-2, the market price appraisal conducted by the Korea Asset Management Corporation with the management number of 2009-07107-01 is acknowledged to have been assessed as KRW 17,121,706 of the 2/3 shares of the 2/3 shares of the 2/3 shares of the 2/3 of the 2009-0 00-0 958 m2, Gangnam-gu, Gangnam-gun-gun, Seoul. The market price is confirmed to have been similar at the time of November 4, 2010, which is the date of

5) ▲▲▲▲텍 주식

The market price of unlisted stocks shall be determined based on the value assessed by a method generally recognized (net asset value method, profit value method, and similar type of business comparison method, etc.) in relation to the assessment of unlisted stocks in the absence of such transaction cases, where a normal transaction example is properly reflected in the objective exchange value, and the reasonable transaction value reflecting objective exchange value should be determined by considering the special characteristics of the relevant transaction (see, e.g., Supreme Court Decision 2003Da69638, Oct. 28, 2005).

갑 제19호증의 기재, ▪▪▪▪▪▪먼트 주식회사에 대한 사실조회 결과와 변론 전체의 취지를 종합하면, 이 사건 금전지급행위 당시 윤BB이 주식회사 ▲▲▲▲텍의 주식 20만 주를 소유하고 있었는데, 비상장주식인 위 주식을 2010. 11. 4. 기준으로 순자산가치방식에 의하여 평가한 금액이 1주당 232원인 사실이 인정된다. 이에 어긋나는 을 제13, 14호증의 각 기재는, 해당 신주인수계약이 주식회사 ▲▲▲▲텍 주식의 객관적 교환가치가 적정하게 반영된 정상적인 거래인지 여부가 불분명하므로 믿지 아니한다. 따라서 이 사건 금전지급행위 당시 윤BB이 소유한 주식의 가치는 46,400,000원(20만 주 × 232원)이다.

6) Proceeds from the sale of distributed real estate

The Defendants asserted that the sales price received by selling the land and buildings in Seocho-gu Seoul, Seocho-gu, Seoul, which was jointly owned with the KimCC on July 1, 2010, is still owned at the time of the instant monetary payment act, and should be included in active property. However, the evidence submitted by the Defendants alone is insufficient to recognize this.

(g) Total amount of active property: 6,235,161,129 won (1,196,567 won + 604,719,179 won + 5,405,723,677 won + 177,121,706 won + 46,400,000 won);

B. Petty property

1) Tax liabilities;

As seen earlier, at the time of the instant monetary payment, the Plaintiff’s claim of this case was KRW 3,430,685,270.

2) Joint and several liability obligations

갑 제16호증, 제17호증의 1, 2, 을 제11호증의 2, 제12호증의 각 기재를 종합하면, 이 사건 금전지급행위 당시 윤BB은 XX협동조합중앙회에 대해 4,152,271,698원, ▪▪창업투자 주식회사에 대해 합계 1,933,150,685원의 각 연대보증채무가 있었던 사실이 인정된다.

3) ▪▪에이에 대한 채무

을 제2호증의 1 내지 27의 각 기재에 의하면, 별지 부동산에 대하여 2009. 5. 19. 채권최고액 900,000,000원, 채무자 김CC 및 윤BB, 근저당권자 주식회사 ▪▪에이로 된 공동근저당권이 설정된 사실이 인정된다. 채무자가 수인인 경우에 각 채무자는 균등한 비율로 의무를 부담하는 것이 원칙이므로(민법 제408조), 김CC과 윤BB이 주식회사 ▪▪에이에 대하여 450,000,000원씩 채무를 부담하는 것으로 추정된다.

4) Total amount of passive property: KRW 9,966,107,653 ( KRW 3,430,685,270 + + KRW 4,152,271,698 + KRW 1,93,150,685 + KRW 450,00,00)

C. Sub-committee

Therefore, inasmuch as 9,966,107,653 won of small-sized property exceeds 6,235,161,129 won of active property, leB was in excess of the obligation at the time of the instant monetary payment.

4. Determination as to whether the act constitutes a fraudulent act

A. The nature of the instant monetary payment act

The fact that the ZZ Industrial Development Co., Ltd. and the ZZ in the name of the KimCC on November 4, 2010 that the ZB paid the down payment of KRW 800 million to the Defendants by changing the purchaser of the above sales contract to the Defendants is not a dispute between the parties (the Defendant, in the preparatory document dated March 19, 2013, led to the confession that the leB paid money to the Defendants, but the previous confession was revoked through the preparatory document dated May 2, 2013, but there was no evidence to prove that the confession was contrary to the truth and due to mistake, the above confession was not valid).

In light of the following circumstances recognized by Gap evidence 2-1, 2, 9, Eul evidence 2-9, Eul evidence 9, 10-1, and 2-2 comprehensively based on the overall purport of each of the statements and arguments, it is reasonable to interpret the monetary payment of this case to have been made by leB to repay the loans to the defendants. ① leB has been engaged in real estate investment business with KimCC, and since 2008, the real estate market has been invaded and the financial difficulties has been faced. ② Defendant Kim KK and the head of leB, the head of leB, Defendant LL, Y, 600, 300,000,000,000 won, including the amount remitted from 70,000,000 won to the account of the defendants, 30,000,000,000 won, and 300,000,000 won, 200,000,000 won,00 won,0 won.

B. Whether the instant monetary payment act constitutes a fraudulent act

In a case where a debtor’s repayment according to the principal place of debt to a specific creditor in excess of his/her liability results in the reduction of the joint security of other creditors, such repayment does not constitute a fraudulent act, in principle, unless the debtor, in collusion with some creditors, has performed performance with the intent to prejudice other creditors (see, e.g., Supreme Court Decision 2005Da62167, Jun. 15, 2006).

As seen earlier, in light of the fact that the Defendants are the head of leB and the head of leB’s family relationship, and that leB received money from their relatives, including the Defendants, due to financial difficulties, the Defendants seems to have been well aware of the excess of leB’s obligations at the time of the instant monetary payment act. Accordingly, at the time when leB paid 80 million won to the Defendants as the intent to repay the Defendants’ debt, there was a collusion between the parties to harm other creditors including the Plaintiff by paying only the Defendants among the creditors of leB.

In this regard, the defendants defense that they are bona fide beneficiaries, but as long as the defendants in collusion with leB, it is not reasonable to constitute a bona fide beneficiary.

5. Revocation of fraudulent act and reinstatement;

The act of monetary payment of this case must be revoked as it constitutes a fraudulent act, and the defendants are obligated to pay to the plaintiff 4 million won each and 5% interest per annum under the Civil Act from the day following the conclusion of the judgment of this case to the day of full payment.

6. Conclusion

Thus, the plaintiff's claim of this case is accepted on the grounds of all reasons.