Ulsan District Court-2018-Ban-67515 (28 June 2018)

The Plaintiff’s taxation claim can be the preserved claim of the obligee’s right of revocation of the instant case.

In light of the fact that the Plaintiff’s taxation claim may be the preserved claim of this case, and there was an exchange relationship between the delinquent taxpayer and the Defendant, the Defendant shall be considered as a malicious beneficiary, and thus, the sales contract between the delinquent taxpayer and the Defendant shall be revoked. The Defendant shall be liable to perform its restoration to its original state accordingly.

Article 30 of the National Tax Collection Act

2018Na23889 Revocation of Fraudulent Act

Korea

정QQ

Ulsan District Court Decision 2018Gadan67515 Decided June 28, 2018

November 22, 2018

December 20, 2018

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The purchase and sale contract concluded on August 18, 2016 with respect to Ulsan Sss (hereinafter referred to as the “1 forest of this case”) as to the same Dodddds (hereinafter referred to as the “2 forest of this case”) between the Defendant and Japan (hereinafter referred to as the “instant 1 forest”) shall be revoked. The Defendant will implement the registration of transfer of ownership as to the forest of this case completed on August 22, 2016 by Ulsan District Court No. 157465, Aug. 22, 2016; the registration of transfer of ownership as to the forest of this case completed on September 21, 2016 by the Ulsan District Court No. 174648, Sep. 21, 2016.

2. Purport of appeal

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

1. Basic facts

A. Japan is a company that had been engaged in civil engineering and construction business from October 10, 1998, and is delinquent in corporate tax for 2013 and value-added tax for 1 year 2013 for the Plaintiff. The details of default are as follows (unit: source).

No.

Items of Taxation

Date of establishment

Date of Confirmation

Amount of delinquent tax

Principal Tax

Additional Dues

1

Corporate Tax

December 31, 2013

2014.05.01

1,066,637,580

712,041,240

354,596,340

2

Value-added Tax

2013.06.30

2014.04.08

6,524,620

4,355,810

2,168,810

1,073,162,200

716,397,050

356,765,150

B. On February 2010, Japan concluded a sales contract to purchase the instant forest land owned by it from suss for KRW 150 million, and around May 2010, Japan concluded a sales contract to purchase the instant forest land owned by it for KRW 160 million from suss for purchase and to pay all the above sales amount to the seller.

C. On May 6, 2013, when the Defendant had not completed the registration of ownership transfer of the forest land of this case between sss and effa, the Defendant delegated the instant lawsuit for ownership transfer registration and the instant lawsuit for ownership transfer registration against the Defendant with respect to the forest land of this case 1 that Japan filed against the Defendant, and the Defendant agreed to sell the forest land of this case to the Defendant at KRW 200,000 per square day (hereinafter referred to as the “agreement”).

D. On March 28, 2016, according to the instant agreement, the Defendant filed a lawsuit claiming the registration of ownership transfer of the forest land of this case (Ulsan District Court 2016Kadan6568), with the Plaintiff as the Plaintiff, respectively. In the said lawsuit, a decision of recommending reconciliation was rendered to the effect that the claim is accepted by Japan, and the registration of ownership transfer was completed on August 22, 2016 in accordance with the said decision of recommending reconciliation.

E. On August 18, 2016, according to the instant agreement, the Defendant concluded a sales contract to purchase each of the instant forest land from Ila for KRW 140,00,000 (hereinafter “instant sales contract”), and completed the registration of ownership transfer as to the instant forest land No. 157465, August 22, 2016 by Ulsan District Court No. 157465, Sept. 21, 2016; and the registration of ownership transfer as to the instant forest No. 2 forest land under the Ulsan District Court No. 174648, Sept. 21, 2016 (hereinafter “each of the instant registration of ownership transfer”).

F. Meanwhile, at the time of the conclusion of the instant agreement and the sales contract, Japan did not hold any property other than the rights to each forest of this case.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, Eul evidence 1 through 4 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) Since the instant contract is at issue as to whether a fraudulent act is a fraudulent act, the determination of a fraudulent act ought to be made as of August 18, 2016, which was the date of the conclusion of the instant contract, as of August 18, 2016. At that time, Ils bears tax liability of KRW 1,073,162,20 against the Plaintiff and were in excess of the obligation.

2) Even if the determination of the fraudulent act ought to be made as of May 6, 2013 upon the conclusion of the instant agreement, it is highly probable that the Plaintiff had already commenced the taxable period of the taxation claim against Ila, and there exists a legal relationship which forms the basis of the establishment of the claim, and that the claim is to be established in the near future, and the tax claim is established due to the realization of the possibility in the near future. Accordingly, the Plaintiff’s claim 1,073,162,200 against Ila may be the preserved claim of the lawsuit seeking the revocation of the fraudulent act in question. Accordingly, Japan was in excess of its liability.

3) Therefore, Japan concluded the instant agreement and the instant sales contract to dispose of the rights to each forest of this case, which is the only property for the Defendant under excess of the above obligation, and accordingly completed the registration of ownership transfer to the Defendant. Accordingly, each of the instant sales contracts should be revoked by fraudulent act.

B. Defendant’s assertion

1) Since the Defendant’s acquisition of ownership of each forest of this case is subject to the instant agreement, it is necessary to determine whether a fraudulent act was made based on May 6, 2013, upon which the instant agreement was concluded. Of the Plaintiff’s taxation claims against Ila, corporate tax was established on December 31, 2013, and value-added tax was established on June 30, 2013, and the pertinent taxation claim was not established at the time of the instant agreement, and thus, there is no Plaintiff’s preserved claim.

2) In addition, corporate tax is a tax imposed on a corporation’s income as a taxable object. Value-added tax is imposed on the premise of the occurrence of sales, and the amount of tax is determined based on the income and the scale of sales. Therefore, it cannot be deemed that there was a basic legal relationship regarding taxation claims or there was a high probability that a tax claim in the near future may be established. Therefore, the Plaintiff’s taxation claim in Japan cannot be the preserved claim in the lawsuit seeking revocation of fraudulent act in this case.

3) At the time of the instant agreement, the Defendant, a third party, was not aware of the amount of tax to be borne by Il-a to the Plaintiff on the ground that the 2013-2013-201-200 and the first-term sales were not finalized, and thus, constitutes a bona fide beneficiary who did not know of the excess of the obligation under

3. Determination

A. The point of time to determine the requirements for fraudulent act of the instant sales contract

1) In a case where a debtor has committed multiple property acts in succession, it is in principle determined in accordance with whether each act causes insolvency. However, in a case where there exist special circumstances to regard such a series of acts as a single act, whether such act constitutes a single act ought to be determined as a whole. In such a case, whether there exists any special circumstance ought to be determined based on the identity of the other party to the act, the interval between each property act and the other party, the relationship between the debtor and the other party, the motive or opportunity of the act, etc. (see Supreme Court Decision 2010Da15387, May 27, 2010).

2) The following circumstances are revealed with respect to the instant case: (i) the instant agreement and the instant sales contract are identical to the Defendant as the Defendant; and (ii) the purpose of the agreement is not different as a juristic act entered into for the Defendant to acquire ownership of each forest of this case; (iii) the agreement appears to have been entered into on August 18, 2016 with respect to each forest of this case through a lawsuit brought under the agreement of this case; and (iv) the ownership transfer registration was completed on August 18, 2016 with respect to each forest of this case on August 18, 2016, which was four (4) days before the date the ownership transfer registration was completed in Japan; and (a) the agreement of this case and the sales contract of this case were concluded to implement the agreement of this case, and thus, it is reasonable to conclude that the agreement of this case and the instant sales contract of this case were to take precedence over the agreement of this case as a series of legal acts concluded between each of the instant forest of this case and the Defendant.

(b)the existence of preserved claims;

1) In principle, a claim that may be protected by the obligee’s right of revocation needs to be, in principle, arising prior to the commission of an act that could be deemed a fraudulent act, but there exists a legal relationship that has already been based on which the claim was established at the time of the fraudulent act, and there is high probability as to the fact that the claim is established in the near future in the near future. In cases where the probability is realized in the near future and where a claim has been created due to the realization of the possibility, such claim may also become a preserved claim (see, e.g., Supreme Court Decision 2011Da76426, Feb. 23,

2) As to the instant case, the Plaintiff’s taxation claim amounting to KRW 712,041,240 of the principal tax for the year 2013, established on December 31, 2013, the Plaintiff held KRW 4,35,810 of the principal tax for the year 2013, which was established on June 30, 2013, and the following circumstances, which can be known through the facts recognized as above and the entire pleadings, are as follows: ① the corporate tax period for the year 2013 was from January 1, 2013 to December 31, 2013; ③ the tax period for the corporate tax for the year 2013, which was for the first time from January 1, 2013 to June 30, 2013, the Plaintiff’s taxation claim amounting to KRW 4,355,810 of the corporate tax for the year 2013, which was established after the lapse of each of the above taxation claim period.

(c) The intention to commit fraudulent acts and to injure himself;

1) According to the above facts, Japan did not own other properties except the right to claim for ownership transfer registration of the forest land No. 1 of this case purchased from ssss for KRW 150 million at the time of the agreement of this case and the right to claim ownership transfer registration of the forest land No. 2 of this case purchased from s for KRW 160,00,000 from f. On the other hand, the Plaintiff was in excess of its obligation by bearing the principal tax of KRW 712,041,240, which is recognized as preserved bonds, with the obligation to pay the principal tax of KRW 712,041,240, which is recognized as preserved bonds. In Japan, the conclusion of the agreement of this case with the Defendant to sell the ownership of each forest land of this case constitutes a fraudulent act by transferring all property owned by the Defendant in excess of its obligation, and thereafter, the sales contract of this case concluded according to the agreement of this case constitutes a fraudulent act.

2) Furthermore, the following circumstances, which can be known by the overall purport of the statements and arguments set forth in Gap evidence Nos. 5 through 8, namely, from February 22, 2012 to April 30, 2013, and from August 11, 2016 to November 10, 2017, the defendant's in-house director Park Jong-a, who was the defendant's in-house director, was appointed as the representative director of Il-a on November 18, 2013, and the olda, the largest shareholder of Il-a, was appointed as the defendant's in-house representative director until July 28, 2012. In light of the fact that the defendant's in-house and the majority shareholder were in relations between Il-a and the defendant, the testimony of the witness at the court of first instance alone is insufficient to recognize that the defendant was a bona fide beneficiary, and there is no evidence to prove otherwise.

D. Sub-committee

Therefore, the sales contract of this case must be revoked as a fraudulent act, and the defendant is obligated to implement the procedure for cancellation registration of each transfer of ownership of this case to Japan as a restoration subsequent thereto.

3. If so, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.