There is no reason to deem that the transfer income tax was likely to not paid or that it was not a speculative act.

In light of the above, there is no evidence to acknowledge that the act of delivery constitutes a fraudulent act by means of a collusion, in view of the fact that there is no circumstance to presume that the act of delivery was likely to not pay capital gains tax, and there is no evidence to acknowledge that the act of delivery constitutes a fraudulent act by means of a collusion in collusion.

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

Busan District Court 2014Kahap52011 Revocation of Fraudulent Act

Korea

AA

April 22, 2015

May 20, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The contract for donation between the defendant and BB on October 5, 201 is revoked, and the defendant shall pay to the plaintiff 125,000.010 won and its amount at the rate of 5% per annum from the day following the day this judgment becomes final and conclusive to the day of complete payment.

1. Basic facts

A. The defendant concerned is the person who is the subject of BB.

B. Assignment of each real estate of this case

(1) BB entered into a contract with CCC on transfer with the content that the transfer proceeds shall be paid in advance in the form of a loan for 00-0 forest land and 628 square meters (hereinafter “each of the instant real property”) such as Changwon-si DD 00 forest and 19.104 square meters, and that the transfer proceeds shall be converted into the land transfer proceeds until the time land transaction permission, etc. can be granted. EE entered into a contract on transfer with CCC on August 16, 201;

(2) After July 25, 2012, BB determined the transfer amount as KRW 65,00,000 between CCC and CCC, and on July 27, 2012, CCC completed the registration of ownership transfer for each of the instant real estate on July 25, 2012.

(c) Delivery of money by BB;

BB on October 5, 201, issued 125,000 won cashier's checks (one bank check number: 00000) to the Defendant (hereinafter "delivery of this case") at the face value of 125,000,000.

D. The Plaintiff’s taxation claim against BB

BB reported KRW 650,00,000 as the price for the transfer of each of the instant real estate, and on December 10, 2012, the Plaintiff decided to pay KRW 146,478,738 of the capital gains tax on each of the instant real estate (=230,824,239 KRW 230,824,239- KRW 83,501 of the capital gains tax on each of the instant real estate accrued in the same year) to the BB on December 31, 2012;

Facts that there is no dispute over the basis of recognition, entries in Gap evidence 1 through 8 (including each number; hereinafter the same shall apply), the purport of the whole pleadings.

2. The parties' assertion

A. The plaintiff's assertion

(1) As long as long as the Plaintiff had received the transfer income tax of KRW 146,478,738 and its additional tax claim, the Plaintiff had a tax claim.

(2) BB made a donation of the above money by delivering 125,00,000 won to any person who is the defendant at the time of the delivery of this case while it was anticipated that the transfer income tax would have been created at the time of the delivery of this case. This constitutes a fraudulent act detrimental to the general creditors of BB by reducing joint security, and it shall be revoked, and the defendant shall be obliged to pay to the plaintiff 125,00,000 won and damages for delay.

(3) Even if the instant delivery act constitutes a repayment of loans to the Defendant of BB, the Defendant, in collusion with BB, received the said money with the intent to prejudice other creditors, and thus, constitutes a fraudulent act and thus, should be revoked.

B. Defendant’s assertion

(1) The Defendant did not enter into a donation contract of KRW 125,00,000 between the Defendant and BB, but merely took part in the Defendant’s lending of money to BB prior to the instant delivery.

(2) At the time of receiving KRW 125,00,00 from BB, the Defendant was unaware of the status of excess of the BB’s debt, and in collusion with BB, did not receive reimbursement with the intent to prejudice other creditors of BB. Thus, there is no fraudulent act between the Defendant and BB.

3. Determination on the defense prior to the merits

A. The defendant's assertion (the motion and assertion of the exclusion period)

The defendant asserts to the effect that the lawsuit in this case is unlawful because it was filed one year after the plaintiff became aware of the cause for cancellation, and that the exclusion period is too excessive.

B. Determination

"(1) The date when the obligee becomes aware of the cause for revocation" in the exercise of the obligee's right of revocation refers to the date when the obligee becomes aware of the requirement for the obligee's right of revocation, that is, the date when the obligee becomes aware of the fact that the obligor committed a fraudulent act knowing that the obligee would prejudice the obligee. Thus, the mere fact that the obligor was aware of the act of disposal of the property is insufficient merely by the fact that the juristic act is an act detrimental to the obligee, and it is necessary to know that the obligor was unable to fully satisfy the claim due to the lack of joint security of the claim or the lack of joint security that was already insufficient, and that there was an intent to harm the obligor. Furthermore, it cannot be presumed that the obligee was aware of the objective fact of the fraudulent act, and that the burden of proof regarding the lapse of the exclusion period constitutes the other party to the obligee's right of revocation (see Supreme Court Decision 2009Da47852, Oct. 29, 2009; Supreme Court Decision 2015Da16514, Apr. 26, 2013, 2013).

(3) Therefore, the defendant's defense prior to the merits is without merit.

4. Judgment on the merits

A. The plaintiff's preserved claim

(1) In principle, a claim that can be protected by the obligee’s right of revocation requires that an act was conducted prior to the occurrence of a fraudulent act. However, there exists a legal relationship that has already been based on which the claim was established at the time of the fraudulent act. In the near future, there is a high probability of the establishment of a claim based on such legal relationship in the near future. In the near future, where a claim has been created by realizing such probability in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2011Da76426, Feb. 23, 201

(2) As seen earlier, the instant transfer income tax claim against BB, a preserved claim by the Plaintiff, was incurred after the instant transfer act. However, at the time of entering into the instant transfer contract, there was a high probability that the said transfer income tax claim will be established in the near future since the abstract tax liability for the transfer income tax was already established at the time of entering into the instant transfer contract, or the taxable period was commenced. Accordingly, the probability was realized and the Plaintiff actually incurred the transfer income tax claim by determining and notifying BB of the transfer income tax by the transfer of each of the instant real estate. Accordingly, the said transfer income tax claim becomes a preserved claim for the revocation of fraudulent act.

B. Whether the delivery of this case constitutes a fraudulent act

(1) Property status of BB at the time of delivery of the instant case

(A) the active property of BB;

Comprehensively taking account of the purport of the entire arguments in Gap evidence Nos. 5 and 8, which are the evidence mentioned above, BB at the time of the delivery of the case on October 5, 201 as follows (in relation to the value of each real estate of this case, the implementation of the transfer contract of this case at the time of the donation of this case is deemed completed).

(Omission of List)

(B) AB’s passive property

In full view of the aforementioned evidence, BB at the time of the delivery of the instant case, including the transfer income tax liability of this case, was liable for the following obligations.

(Omission of List)

C) According to the above facts, BB’s small assets were in excess of his/her obligation exceeding his/her positive assets.

(2) Legal nature of the delivery act of this case

(A) If a debtor donated his/her own property to another person under excess of his/her obligation, such act would constitute a fraudulent act, barring any special circumstances. However, in cases where the debtor’s repayment of debts to a certain creditor under excess of his/her obligation would result in a 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, performed performance with intent to prejudice other creditors (see, e.g., Supreme Court Decision 2005Da62167, Jun. 15, 2006). However, in cases where the creditor seeking revocation of the fraudulent act claims that the debtor’s monetary payment to the beneficiary is a donation of the debtor’s existing obligation, the beneficiary is dissatisfied with the denial of the creditor’s assertion that it was a repayment of the existing obligation, and the creditor’s monetary payment is considerably different, and thus, it constitutes a fraudulent act under the burden of proving and proving that the above payment of money constitutes a donation to be recognized as a fraudulent act (see, e.g., Supreme Court Decision 2007 208).

(B) On October 5, 201, the fact that the Health Board and BB issued a cashier’s check of KRW 125,000,000 at face value to the Defendant on this case is as seen earlier.

(C) On the other hand, according to the above evidence, Gap evidence Nos. 12-14, Eul evidence Nos. 12-2, and Eul evidence Nos. 1 and 2, the result of this court’s order to submit financial transaction information to HH bank and the whole purport of pleadings, the following facts can be acknowledged.

① On January 18, 2007, the Defendant set up a mortgage of the maximum debt amount of 60,000,000 won with respect to the above apartment Nos. 000, J apartment No. 185-1, 2000, which is owned by the Defendant, KKKK on the security of the debtor, the debtor, and the mortgagee, and the debtor, KKK on January 19, 2007 (II Dong branch; hereinafter referred to as the "KK"), borrowed KRW 49,540,000,000, excluding the cost of mortgage, from among the above funds, to BB on the same day. ② On September 5, 2007, the Defendant set up a mortgage of 36,000,000,000 won with respect to the above apartment as the collateral of 30,000,0000 won, 300,300,000,000 won or less.

③ On September 14, 2010, the Defendant created a maximum debt amount of KRW 24,00,000 with respect to the above apartment, and the debtor, the debtor, the mortgagee, and the mortgagee, KKK’s right to collateral security (hereinafter “the third loan”). On the same day, the Defendant borrowed KRW 20,000,000 as security, and remitted the said KRW 20,000 to BB on the same day.

④ On June 13, 201, the Defendant set up a mortgage on the said apartment with the maximum debt amount of KRW 24,00,000,00 with respect to the said apartment, the obligor, the mortgagee, and the mortgagee of the mortgage, and, on September 5, 2007, secured the loans of KRW 2,30,000 as collateral until September 14, 2007, and repaid all the loans of KRW 2,30,000 with respect to KK on the same day, and transferred the loans of KRW 19,590,000 to BB on June 13, 2011.

⑤ On October 5, 2011, the Defendant deposited a cashier’s check of KRW 125,00,000 in the face value received from BB according to the instant issuing act in the account under the name of KK and repaid KRW 50,131,068, and KRW 70.80, a total of KRW 121,02,848 (=50.131,068 + + KRW 70,891,780).

6) After borrowing the first loan, the LLLL company operated by BB or BB paid a monthly amount to the Defendant, and the Defendant received the said amount and repaid interest on each of the instant loans.

(D) Considering the circumstances, such as before the above facts of recognition, which can be recognized by comprehensively taking into account the overall purport of the arguments, i.e., the difference between the amount loaned to the Defendant by the Defendant and the amount remitted to the Defendant by the Defendant in light of the compromise between KRK, the Defendant, and the BB, and the amount paid by the Defendant, the difference between the amount that the Defendant received from the Defendant and the amount that the Defendant paid to the Defendant is not significant, and the amount that the BB continues to pay to the Defendant the Defendant the amount corresponding to the monthly interest, it is reasonable to deem that the BB borrowed KRW 120,000,000 corresponding to the amount of the 1,40,000 and delivered to the Defendant to the Defendant in order to pay the principal and interest of the loan, and there is no evidence to acknowledge that the BB concluded a donation contract without compensation on the sole basis of the facts acknowledged earlier.

(3) Whether the act of fraudulent act and the intent of deception are intended

(A) As to whether the instant delivery act constitutes a fraudulent act upon the collusion between the Defendant and BB, the obligee’s claim for reimbursement of the debt should not be obstructed due to the existence of other creditors, as a matter of course, on the ground that there exist other creditors, and the obligor cannot refuse to perform the debt on the ground that there are other creditors, as it bears the obligation to perform the debt according to the principal place of the debt. Thus, even in cases where the obligor’s joint security at the time of excess of the debt, which resulted in a decrease in the joint security of other creditors, the obligor does not constitute a fraudulent act, unless the obligor, in collusion with some creditors, intended to prejudice other creditors, in principle. In particular, the issue of whether the obligor performed the debt with the intent of undermining other creditors in collusion with one obligee should be proved by the person asserting that it constitutes an act of fraud. This should be determined by comprehensively taking into account the circumstances such as whether the beneficiary actually received the debt from the obligor, the amount of the obligor and the beneficiary, the obligor’s ability to pay the debt, the perception of the beneficiary at the time of repayment, and circumstances at 205.

(B) With respect to the instant case, the evidence revealed earlier, Gap evidence No. 11, which can be acknowledged by comprehensively taking into account the following facts, and the purport of Gap evidence No. 11, BB, i.e., the creditors other than the plaintiff set up a collateral on the real estate and borrowed money as collateral. After the delivery of the instant case, it appears that BB had cancelled all the collateral security except the collateral security in the name of GG and discharged all the loans secured by the collateral. It is difficult to view BBB to have excluded its own creditors and discharged its excessive amount of money only to the defendant on January 10, 2012. BB transferred its own real estate to another person even before the transfer of each of the instant real estate. Since the issuance of the instant real estate, the Plaintiff could not be deemed to have carried out any other act of delivery by the defendant from June 30, 2012 to 30 years after the delivery of the instant real estate.

5. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.