Seoul High Court 2008Na3116 (Law No. 25, 2008)

Whether there was no intention of deception, such as paying part of the apartment sale price;

Even if a part of the apartment sale price was directly paid or borrowed by acquiring the apartment sale right, it cannot be viewed that there was no intention to do so merely because of such circumstance.

The contents of the decision shall be the same as attached.

Article 30 of the National Tax Collection Act (Cancellation of Fraudulent Act)

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

All of the records of this case and the judgment of the court below and the grounds of appeal were examined, but the assertion on the grounds of appeal by the appellant is clear that it falls under Article 4 of the Act on Special Cases Concerning the Procedure of Appeal. Thus, the appeal is dismissed under Article 5 of the same Act. It is so decided as per Disposition

[Seoul High Court Decision 2008Na3116, 2008.25)]

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

On June 14, 2004, the purchase and sale contract between the defendant and the defendant shall be revoked. The defendant shall pay to the plaintiff 213,811,340 won and 5% interest per annum from the day following the day this decision became final and conclusive to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of the pleadings as a result of the market price appraisal by the first instance court appraiser Nos. 1, 2, 3, 4, and 13-1, 2, 14-2, 15, 17-1, 2, 3, 4, 19, 19, 1, 23-1, 23-1, and 2, and 13-2.

(a) Formation and notice of tax claims;

(1) In the tax investigation on ○ Technology Investment Co., Ltd. (hereinafter referred to as “○○ Technology Investment”) from May 17, 2004 to June 14, 2004, the Plaintiff’s Samsung Tax Office confirmed the omission of securities transaction tax and transfer of the unlisted stocks owned by ○ Technology Investment Co., Ltd. in the course of operating ○ Technology Investment from November 4, 1999 to March 20, 2001.

(2) On June 25, 2004, Samsung C&T notified the head of Seodaemun-gu Tax Office having jurisdiction over the domicile of the N&T to notify his transfer income tax and securities transaction tax of his transfer income tax and securities transaction tax, and the head of Seodaemun-gu Tax Office notified his tax to ○ S&C as shown in the following table 1, and arrived at ○’s interference on August 5, 2004.

Table 1

No.

Items of Taxation

Date of Notice

Deadline for payment

guidance.

Principal Tax

Additional Dues

Year of Reversion

1

Securities Transaction Tax

204.71

7.31

62,310

60,500

1,810

6. 201.06

2

Securities Transaction Tax

204.71

7.31

15,282,480

14,837,360

45,120

201.02

3

Securities Transaction Tax

204.71

7.31

815,760

792,000

23,760

200.04

4

Securities Transaction Tax

204.71

7.31

14,127,610

13,564,670

562,940

200.12

5

Transfer Income Tax

204.71

7.31

183,523,180

178,177,850

5,345,330

200.01

guidance.

213,811,340

207,432,380

6,378,960

(3) Meanwhile, in the process of the above tax investigation, ○ Intervention submitted each written confirmation confirming the tax evasion due to gratuitous stock donation on two occasions on March 17, 2004 and May 6, 2004 to the public official in charge of tax investigation. On May 24, 2004, Samsung chief of Samsung District Tax Office notified ○○ of the purport that it will impose national taxes on the person in charge of tax investigation according to the results of tax investigation.

B. Sale of the sales slip of this case

On the other hand, on June 27, 2001, ○○ Construction Co., Ltd. (hereinafter referred to as "the apartment of this case") claims for the registration of ownership transfer (hereinafter referred to as "the sales contract of this case") against the defendant, who is the wife, on June 14, 2004, sold the apartment of this case on the 16th of the same month. The defendant completed the registration of ownership transfer with respect to the apartment of this case on September 9, 2004.

C. The status of the property of the conflict

At the time of selling the right to sell the apartment in this case to the defendant, the status of active property and small property are as shown below.

Table 2

Active Property

Petty Property

Property

Value;

Obligations

Amount

132/6,191 shares among 00 ○○-ri ○○-8 Forest Land in Pakistan, 132/6,191 shares

1,162,920

Tax Liabilities of this case

213,811,340

The sales right of the apartment of this case

260,000,000

An obligation to ○ Investment (State)

2,170,505,380

○○ Investment (States) Shares 3,740 Shares

2,105,620

claim on ○○ Investment (State)

91,778,544

Total

1,255,047,084

Total

2,384,316,720

2. Determination on the cause of the claim

A. Establishment of fraudulent act

According to the above facts, the right of revocation of this case's right of revocation is a tax obligation of capital gains tax and securities transaction tax to be paid by ○ interference to the plaintiff between January 1, 2000 and June 14, 2001, which is the date of the sales contract of this case, and since ○○ interference has reduced joint security by selling the right to sell the apartment of this case to the defendant under the status of excess of obligation, the sales contract of this case is a fraudulent act detrimental to the plaintiff, and ○○ interference constitutes a fraudulent act detrimental to the plaintiff. The tax office's failure to report capital gains tax and securities transaction tax pursuant to the transfer of non-listed stocks from May 7, 2004 to June 14, 2004, clearly stating that the tax office did not report capital gains tax and securities transaction tax pursuant to the transfer of non-listed stocks on its own over two occasions, and it is sufficiently acknowledged that the defendant's owner, the beneficiary of this case, and the beneficiary of this case, has sold the right to sell the apartment of this case.

B. Judgment on the defendant's assertion

(1) The Defendant asserts to the effect that, at the time of the instant sales contract, ○○○ Co., Ltd.: ① 22,000 shares issued by ○○○ branch Co., Ltd; ② 187,500,000 shares invested in ○○ Venture Korea Investment Association; ③ claim amounting to KRW 50,000,000 against ○○ex; ④ 3,740 shares of ○○ Investment Co., Ltd.; and thus, the Defendant did not have any obligation excess.

Therefore, each statement of ○○○○ Co., Ltd. is an investment association established by ○○ Technology Investment Association on June 30, 2005. ② The above investment association was established by ○○○ Investment Association on July 7, 2001, and there is no possibility of repayment of debt due to its dissolution of ○○ Investment Association on the part of ○○ Investment Association, and there is no other evidence to acknowledge it otherwise. Rather, considering each statement of ○○○○ Co., Ltd. 2, 14-2, 19, 123-1, 23-3, and 11-3, the whole purport of the oral argument is as follows: ① The above ○○○○ Co., Ltd. is not real value of property by closing its business as of 30 June 30, 2005; ② The above ○○ Investment Association was established by ○○ Investment Association on the part of the above ○○ Investment Association’s active property, and there is no possibility of reimbursement of debt due to its dissolution.

In addition, the defendant asserts to the effect that ○○ Investment Co., Ltd. holds approximately KRW 2.8 billion in claims against ○○ Investment Co., Ltd., except the active property of the above assertion, but each of the statements in the Evidence Nos. 20 through 23 (including the serial number) submitted in the trial alone is insufficient to see it as such, and there is no other evidence to acknowledge it, the above assertion is without merit.

(2) The defendant asserts to the effect that the defendant had no intention of deception in light of the fact that the defendant had paid part of the purchase price, and that the defendant did not intend to do so, in the light of the fact that he had purchased the apartment house of this case at the market price with the right to sell the apartment of this case and the loan of KRW 115 million with the security of the right to sell the leased house of KRW 15 million and KRW 215 million

However, even if the defendant purchased the right to purchase the apartment of this case and directly paid a part of the purchase price or acquired the loan obligations, such circumstance alone cannot be deemed as having no intention to do so to the defendant. The entries in the evidence Nos. 1, 2, 3, 4, and 4 of the evidence Nos. 1, 10, 11, 1-1, 4, and 25-1, 25-2 are not sufficient to recognize that the defendant had no intention to do so. Rather, in full view of the whole purport of arguments, ① although the contract of this case stated that the defendant succeeded to the unpaid remaining amount in the selling company and paid it on behalf of the defendant, ② the presumption that the defendant purchased the above apartment of 10,000 won among the above apartment of 10,000 won, and ③ the fact that the defendant did not have been granted the right to purchase the house of this case after the contract of this case, and the defendant did not mention the fact that ○○ had no intention to purchase the house of this case as 500 billion won.

(3) On August 27, 2004, the defendant seized the above ○○-ri Forest owned by the defendant on the basis of the above tax liability, and on August 31, 2004, ○○-ri Forest was reported and paid to the plaintiff on August 31, 2004 with the transfer income tax and resident tax arising from the sale of the apartment sales right of this case. The plaintiff, at the latest around August 31, 2004, knew that ○-ri sold the apartment sales right of this case and that it constitutes a fraudulent act. Thus, the lawsuit of this case filed after the lapse of one year, which is the exclusion period of the obligee’s right of revocation, is unlawful.

In light of the above, the date when the obligee becomes aware of the cause of revocation in the exercise of the obligee's right of revocation refers to the date when the obligee became aware of the requirement of the obligee's right of revocation, that is, the date when the obligor becomes aware of the fact that the obligee had committed a fraudulent act with the knowledge that the obligee would prejudice the obligee. Thus, it is not sufficient that the obligor merely knows that the obligor conducted a disposal of the property, that is, the juristic act is an act detrimental to the obligee. In other words, the obligor's joint security of the claim is insufficient, or the joint security already insufficient, making it impossible to fully satisfy the claim, and further, it is necessary to inform the obligor that the obligor had an intention to commit a fraudulent act (see, e.g., Supreme Court Decision 2003Da19435, Jul. 11, 2003), and there is no evidence to acknowledge that the Plaintiff's act was insufficient to preserve the taxation claim above on August 27, 2004.

(c) Scope of revocation and methods of reinstatement;

(1) In the event that a sales contract for the right of sale constitutes a fraudulent act, in principle, the entire sales contract is revoked and the right of sale itself shall be restored. However, as in the instant case, where a beneficiary who purchased the right of sale has completed registration of ownership transfer in the future based on the right of sale, it shall be limited to exceptional cases where return of the original property is impossible or considerably difficult. In such a case, it is reasonable to order restitution by the method of cancelling the fraudulent act and compensating for its value within the limit of the amount of the claim assessed

(2) Therefore, according to the above appraisal results as to the scope of restitution, Gap's evidence No. 21, and the appraisal results as seen above, apartment units listed in the attached list are traded at the same level as the value of apartment units themselves after approval for use was made on April 30, 2004, and the market price of the real estate listed in the attached list as of January 31, 2007 after the contract of this case was concluded as of January 31, 2007, and unless there are special circumstances, the market price of the right of sale assessed as of January 31, 200 shall be confirmed as at least as at the time of closing of argument in the trial, and thus, the contract of this case between the defendant and the defendant of this case shall be revoked within the extent of KRW 213,81,340, which is the amount of preserved bonds within the extent of the above market price.

(3) As to this, the defendant asserts that the amount of the lease deposit and the amount of KRW 115 million should be deducted from the amount to be returned by the defendant. Thus, as of June 14, 2004, the date of the sales contract of this case, the tenant had entered into a lease contract with the defendant on the apartment of this case and completed the move-in report and the grant of a fixed date, the fact that the tenant had completed the move-in report as of June 14, 2004 is not deemed as the property excluded from the creditors' joint security at the time of fraudulent act, and further, the circumstance that the defendant acquired the above lease deposit and the above loan cannot be deemed as having affected the value of the right of sale of this case as the creditor's joint security under the principle of creditor equality, and the part that the defendant did not deduct the above obligation from the amount to be returned by the defendant, and thus, it cannot be deemed as having been recovered from the part that was not the first creditor's joint security. Therefore, the above argument is without merit (the defendant's loss suffered between the debtor and the obligor due to return of unjust enrichment).

D. Sub-determination

Therefore, the sales contract of this case between the defendant and the defendant is revoked as it constitutes a fraudulent act, and the defendant is obligated to pay to the plaintiff 213,811,340 won and damages for delay at the rate of 5% per annum under the Civil Act from the day after the day when the judgment became final and conclusive to the day of full payment.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is just and it is dismissed as the defendant's appeal is without merit. It is so decided as per Disposition.