The remittance to a deposit account alone is not sufficient to readily conclude that it is a fraudulent act.

In a case where a remittance is made to transfer money to a bond deposit account, such remittance may be made based on various legal grounds. Thus, it is not presumed that there was a mutual agreement between the remitter and the account holder that the remittance amount should be provided to the account holder without compensation.

Article 30 of the National Tax Collection Act

Jeonju District Court 2014 Gohap6892 Revocation of Fraudulent Act

Korea

aa

May 27, 2016

August 19, 2016

1. The contract of donation concluded on August 16, 2013 between the Defendant and BB is revoked. 2. The Defendant pays to the Plaintiff the amount calculated by the annual rate of 5% with respect to KRW 00 and its amount from the day following the day when the instant judgment became final and conclusive to the day of full payment. 3. The Plaintiff’s remainder of the primary claim and the conjunctive claim are dismissed, respectively.

4. The costs of lawsuit shall be borne by the plaintiff 65% and the defendant 35%, respectively.

1. The primary purport of the claim

The Defendant and BB cancel a donation or a monetary loan agreement on August 16, 2013 with respect to KRW 000 won, and the Defendant shall pay to the Plaintiff 5% interest per annum from the day following the day when the judgment of this case became final and conclusive to the day of full payment. 2. Preliminary claim

The defendant shall pay to the plaintiff 00 won with 5% interest per annum from August 16, 2013 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of full payment.

1. Facts of recognition;

A. On August 9, 2013, BB entered into a sales contract with CCC and itself (hereinafter “instant site”) with a sale of at least KRW 000,000,000 (hereinafter “instant site”) for KRW 521,000,000,000 for the purchase price (hereinafter “instant sales contract”).

B. BB requested CCC to deposit its purchase price in the DDR’s account (hereinafter “instant account”) under the Defendant’s name. Accordingly, on August 16, 2013, BB received 000 won out of the above purchase price (hereinafter “the instant payment”) from the instant account. The Plaintiff agreed to purchase part of the purchase price at KRW 000, and paid a part of the purchase price to the Defendant. On December 10, 2013, BB notified the Plaintiff to pay KRW 000 of the capital gains tax imposed on the instant sales contract to BB on December 10, 2013, but BB did not pay the said amount, and the capital gains tax in arrears by October 17, 2014, which was the date of the instant lawsuit, was the total amount of KRW 00,000,000,000,000,0000,000,0000 won, as indicated in the following table.

E. Meanwhile, BB paid to the Plaintiff KRW 50 million on Nov. 4, 2015, and KRW 0 million on Feb. 2, 2016, respectively. The fact that there is no dispute with recognition, and the purport of each of the entries and arguments written from No. 1 to No. 10, and No. 15 (including the serial number; hereinafter the same shall apply) and the entire purport of the pleadings.

2. Determination on the defense prior to the merits

Since BB had already returned the said money from the Defendant using the said money after the payment of the instant money was made, the Defendant asserts that the lawsuit for revocation of a fraudulent act regarding the instant money was unlawful as there is no benefit of protection of rights. On the other hand, there is no evidence to support that BB used the entire payment of the instant money deposited into the instant account or that the said money was returned to BB, the Defendant’s defense is rejected. 3. Determination on the primary claim is without merit.

(a) the existence of the preserved claim and the status of excess of the BB’s debt;

According to the above facts, around August 16, 2013, BB’s delinquent amount reaches KRW 000 (=0000 - 00000). The Plaintiff’s claim for capital gains tax of KRW 000 against BB against the Plaintiff is a preserved claim for revocation of a fraudulent act, and the Plaintiff was a person with bad credit standing and did not have any other active property. Therefore, it is reasonable to deem that BB had been in excess of its liability at the time when the instant payment was remitted. (b) Whether a fraudulent act was established is established or not.

1) Whether the donation contract on the instant payment was concluded

A) Summary of the Plaintiff’s assertion

BB entered into a donation agreement with the Defendant on August 16, 2013 with respect to the instant payment, and made CCC transfer the instant payment to the instant account. The said donation agreement shall be revoked as a fraudulent act, and the Defendant shall pay KRW 00,000 to the Plaintiff as restitution for the revocation of the fraudulent act.

B) Determination

(1) In the event of remitting money to another person’s deposit account, it is difficult to conclude that the remittance may be made based on various legal causes. The mere fact that a person with a certain personal relationship consented or understood to remit money to his/her own deposit account or to actually control his/her deposit account for such purpose is difficult to conclude that there was an agreement between the remitter and the account holder that he/she would give the remittance money free of charge as above to the account holder (see Supreme Court Decision 2012Da30861, Jul. 26, 2012). It is difficult to conclude that the Defendant’s act of lending money belongs to the Defendant for repayment of 00m270, supra, based on the following facts: (i) the above recognized evidence; (ii) the Defendant’s order to submit financial transaction information to DD credit cooperatives; and (iii) the Defendant’s act of paying the transferred money to the Defendant for repayment of 00m270,000,000 won of the instant deposit account.

A) Summary of the Plaintiff’s assertion

BB concluded a monetary loan agreement with the Defendant and made the CCC transfer of KRW 000 to the instant account even though it was out of the status of excess of the obligation. The said monetary loan agreement should be revoked as a fraudulent act, and the Defendant shall pay the Plaintiff KRW 000,000 as compensation for the equivalent amount as restitution following the revocation of the fraudulent act.

However, the evidence submitted by the Plaintiff alone is insufficient to acknowledge that the monetary loan contract for consumption was concluded between BB and the Defendant with respect to the payment of this case, and there is no other evidence to acknowledge it, and the Plaintiff’s above assertion is not accepted.

3) Whether a title trust agreement on the instant payment was concluded

A) Summary of the Plaintiff’s assertion

BB concluded a title trust agreement with the Defendant with respect to the instant payment in order to evade compulsory execution, and made CCC transfer the instant payment to the instant account. The judgment on cancellation of the said title trust agreement and sought the payment of the instant payment as restitution. B

According to the evidence evidence Nos. 1, 2, and 3, the account of this case was opened on May 25, 2012. The employee identification column of the passbook was registered with the seal impression of BB. The fact that BB’s seal impression was affixed on the side of the part stating “BA” in the name column of the applicant for withdrawal of money from the account of this case. However, the fact that BB out of the payment deposit of this case deposited in the Plaintiff’s account was used for the Defendant’s debt repayment purpose is as seen above. Considering the above facts, the above evidence was written as evidence Nos. 1 and 4, the result of the order to submit financial transaction information on DD credit cooperatives by this court, and the purport of the whole pleadings, the fact that BB and the Defendant’s address was registered on May 25, 2012, and the fact that BB’s seal impression was affixed on the account of this case’s water supply and sewerage charges, and there was no other evidence that the Defendant’s account was established on the account of this case.

The defendant asserts that the payment of this case is merely deposited into the account in the name of the defendant, and the defendant cannot be readily concluded as a malicious beneficiary. The defendant argues that the defendant is not a malicious beneficiary. The defendant's assertion is without merit, since the beneficiary's bad faith is presumed in a lawsuit seeking revocation of fraudulent act. Thus, in order for the beneficiary to be exempted from his/her responsibility, the beneficiary is responsible for proving his/her good faith (see, e.g., Supreme Court Decision 2007Da74621, Jul. 10, 2008).

1) Therefore, the instant donation contract shall be revoked as a fraudulent act, and the Defendant, the beneficiary, shall be obligated to pay to the Plaintiff KRW 000 as its restitution and damages for delay calculated by the rate of 5% per annum as stipulated in the Civil Act from the day following the day this judgment becomes final and conclusive to the day of full payment.

2) As to this, the Defendant alleged that BB’s repayment to the Plaintiff should be reduced to the extent of restitution. However, the fact that BB’s delinquency in capital gains tax at the time of the said donation agreement is a total of KRW 000,000 as seen earlier, and even if BB paid the Plaintiff a total of KRW 00,000,000, the Plaintiff’s taxation claim, which is the preserved claim, still remains 00,000 won (=000 - 0000 won). Accordingly, the Defendant’s above assertion is rejected.

4. Judgment on the conjunctive claim

A. The plaintiff's assertion

BB concealed the purchase price of real estate using the instant account in the name of the Defendant for the purpose of evading compulsory execution in excess of debt, and the Defendant conspireded with BB’s act of evading compulsory execution by accepting the use of the instant account to BB, or made it impossible or difficult for BB to execute the Plaintiff’s claim by facilitating negligence. Therefore, the Defendant is liable for tort pursuant to Article 760 of the Civil Act. Accordingly, the Defendant is liable to compensate the Plaintiff for damages.

B. Determination

1) Where a third party’s act of reducing a debtor’s liability property makes it impossible or difficult for the creditor to execute or satisfy the claim, it may be deemed as infringement of the claim. However, the mere fact that the third party’s act was involved in the act of reducing the debtor’s property in order to constitute a tort against the creditor is insufficient. It should be limited to cases where the intent, negligence, and illegality of the claim infringement is acknowledged, such as where the third party actively recruited with the debtor, or used unlawful means contrary to social norms with the intent to obstruct the exercise of the claim. Here, the illegality of the claim infringement should be determined on an individual basis by taking into account the contents of the claim infringed, the form of the infringement, the intent of the infringer, and the existence of the year. It should be determined after careful consideration of the need to guarantee the freedom of transaction, the public interest including economic and social measures, and the balance between the parties (see, e.g., Supreme Court Decision 2005Da25021, Sept. 6, 2007).

5. Conclusion

Therefore, the plaintiff's main claim is justified within the above scope of recognition, and the remaining main claim and the conjunctive claim are dismissed as they are without merit. It is so decided as per Disposition.