If a debtor donates his/her own property to another person in excess of his/her obligation, such act becomes a fraudulent act unless there are special circumstances.

It is difficult to regard the repayment of a loan as repayment, and there is no other right to receive remittance. Therefore, it is reasonable to deem that the loan was a donation, and the evidence alone presented by the mother, who is the actual debtor, not the nominal owner, alleged that the loan was consumed by the mother while completing the registration of establishment of a neighboring mortgage, is insufficient to recognize it, and there

Revocation of Fraudulent Act

2016 Gohap45970 Revocation of Fraudulent Act

Korea

Over 00 et al.

May 11, 2017

June 15, 2017

1. The respective gift agreements concluded on October 00, 2014; and on October 00, 2014; and on October 0, 2014 between Defendant A and KimCC are revoked.

2. The defendant headA shall pay to the plaintiff 00,000,000 won, and the defendant headB shall jointly and severally pay to the plaintiff 00,000,000 won with 5% interest per annum from the day following the day when this judgment is finalized to the day when the payment is complete.

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

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. The relationship between the parties

The KimCC is the owner of the 1/2 share of the building and the 1/2 share of the land among the land and the 1/2 share of the land in ○○○○○○○○○○○○-dong 000-000 and the 1/2 share of the land (hereinafter referred to as the “instant real estate”). The Defendants are the children of the KimCC (the Defendant headA was born between the network DozD, which was the husband of the KimCC, and the head B is the friendly children of the KimCC). The Defendant headB owns the 1/2 share of the building out of the instant real estate.

B. Defendant BB: (a) from October 0, 2005 to October 0, 2014, on a total of 22 occasions against KimCC.

The details of the remittance made by transferring a total of KRW 000,000,000 are as follows.

[Attachment] omitted.

C. Establishment of a right to collateral security on the instant real estate

On October 20, 2012, on the instant real estate, the registration of creation of a mortgage (hereinafter referred to as the “registration of creation of a mortgage”) consisting of the debtor, Defendant BB, the mortgagee, the mortgagee of the right to collateral security at KRW 0,000,000,000, the maximum debt amount, and the registration of creation of a mortgage (hereinafter referred to as the “registration of creation of a mortgage”) with the same debtor on October 0, 2012, the debtor, the same mortgagee as the right to collateral security, and the amount of maximum debt at KRW 00,000,000, was completed.

D. Sales contract for the instant real estate

1) On October 00, 2014, KimCC sold the instant real estate to KimF in KRW 0,000,000,000 (=building00,000,000 + land0,000,000 +) and completed the registration of ownership transfer in the future of KimF on October 00, 2014.

2) The payment of KimF’s price related to the acquisition of the instant real estate is as follows.

[Attachment] omitted.

3) On October 20, 2014, KimF remitted the amount of KRW 0,000,000,000,000, which was transferred to the account of Defendant Chapter BB, was used for the repayment of the secured debt of each of the above secured claims under the name of Defendant Chapter BB.

E. Transfer to the Defendants by KimCC

After the real estate sales contract of this case, KimCC remitted to the Defendants a total of KRW 000,000,000 as shown in the attached table of remittance (i.e., KRW 000,000 + KRW 000,000 for Defendant headB0,000) (i.e., each money remitted as above).

F. Tax claim against KimCC

1) The KimCC transferred the instant real estate, but did not pay the transfer income tax, and the portions under-reported among the reported details were confirmed, and the head of △△△ Tax Office under the Plaintiff’s control issued a notice of correction of KRW 00,000,000 and KRW 00,000,000 as the due date for payment on October 0, 2014 and October 00, 2016.

2) At the time of the filing of the instant lawsuit by KimCC, the amount of national taxes in arrears is KRW 000,000,000 including additional dues as follows.

[Attachment] omitted.

Facts that there is no dispute over recognition, Gap's 1 through 7 evidence, Eul's 1 certificate (including able numbers; hereinafter the same shall apply) and the purport of the whole pleadings.

2. Judgment on the plaintiff's claim

(a)the existence of preserved claims;

1) The Defendants asserted that the taxation claims asserted by the Plaintiff as the preserved claim were established after the payment date of each of the instant payments claimed by the Plaintiff as the fraudulent act, and therefore, they are not qualified as the preserved claim.

2) We examine the following facts: (a) claims protected by the obligee’s right of revocation need to be, in principle, arising prior to the commission of an act that can be deemed a fraudulent act; (b) however, there is a high probability that the legal relationship, which is the basis of the establishment of a claim, has already occurred at the time of the fraudulent act; and (c) the claim is established in the near future because the probability is realized in the near future; and (d) where a claim has been created by realizing it 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 201Da76426, Feb. 23, 2012); (c) an obligation to pay income tax on the transfer margin of assets is established abstractly on the last day of the month in which the amount that serves as the tax base for the transfer margin occurred (see, e.g., Supreme Court Decision 92Nu787, Mar. 23, 1993); (d) Article 21 of the National Tax Collection Act provides that the additional amount shall be determined by the due date.

3) We examine the instant case in accordance with the foregoing legal doctrine. The obligation to pay capital gains tax on October 0, 2014, which was the last day of the month in which KimCC transferred the ownership of the instant real estate, was abstractly established, and there was a high probability that the said obligation to pay capital gains tax was established in the near future, and thereafter, the said probability was realized by imposing capital gains tax on KimCC on October 0, 2014 and October 00, 2016. Accordingly, each of the Plaintiff’s respective capital gains tax claims against KimCC may be the preserved claim against the obligee’s right to revoke revocation. Moreover, in accordance with the foregoing legal doctrine, the Plaintiff’s global income tax and capital gains tax on KimCC, including additional dues, are all preserved claims against the obligee’s right to revoke revocation.

B. Whether the fraudulent act was established

1) The nature of each of the instant payments paid to Defendant A

A) The Plaintiff asserts that KimCC donated 00,000,000 won of the instant payment to Defendant headA. As to this, Defendant headA asserts that the payment he/she remitted to himself/herself from October 0, 2005 to October 0, 2014 is the repayment of KRW 22 times in total. We look at this point.

B) From October 0, 2005 to October 0, 2014, Defendant A gave a total of KRW 000,000,000 to KimCC over a total of 22 times. KimCC’s remittance of KRW 00,000,000 on October 0, 2014, and KRW 00,000,000 on October 20, 2014.

00,000,000 won and a total of KRW 00,000,000,000 in each case over two occasions are as seen above.

C) Meanwhile, according to Gap evidence No. 11, it is recognized that KimCC remitted total amount of KRW 000,000,000 to defendant headA over 17 times from October 0, 2008 to October 00, 2014 as follows.

[Attachment] omitted.

D) In full view of the facts recognized as above and the purport of the entire pleadings, the following circumstances are as follows: (a) KimCC paid the amount of KRW 000,000,000 to Defendant 2A; (b) KimCC and other bank accounts are held by Kim Yong-A; and (c) Defendant 2A transferred KRW 00,000,000 to Defendant KimCC on 22 occasions from October 200 to October 2014; (d) Defendant A was not drafted with a loan certificate between Defendant 2A and KimCC; and (d) Defendant 2A did not appear to have any other right to receive a loan from Defendant 20,000,000, in light of the loan amount claimed by Defendant 20,000, and it is difficult to view that the loan was repaid to Defendant 20,000, and thus, Defendant 2A had no other right to receive a loan from Defendant 2A and KimCC.

2) The nature of each of the instant payments paid to Defendant B to Defendant B

A) The Plaintiff asserted that the establishment registration of the instant 1, 200,000 won was completed, and that the repayment of the instant 1,200,000,000 won that was paid from KimF was made, and that the repayment of the instant 1,200,000 won was made by the Defendant headB. Thus, the Defendant headB asserted that, despite the absence of the money to be received from KimCC, KimB donated the instant payment amount of KRW 00,000,000 to the Defendant headB. Accordingly, the Defendant headB asserted that the actual debtor of the instant 1, 200,000 won was used by KimCC, and all of the funds borrowed while the establishment registration of the instant 1,20,000,000 won was partially paid out of the sales price of the instant real estate.

B) The fact that the establishment registration of the first and second collateral mortgage was completed with respect to the instant real estate; that KimCC sold the instant real estate to KimF in KRW 0,000,000,000; that KimF paid in KRW 0,000,000,000, which was paid by KimF; that the Defendant of the loan transaction agreement drawn up after completing the establishment registration of the first and second collateral collateral collateral security in the instant case’s 1 and second collateral security in the testimony of the witness kingG; and that the obligor of the loan transaction agreement set up after completing the establishment registration of the second collateral security in the instant case’s 1 and second collateral security in light of the overall purport of the pleadings; and that the debtor of the agreement set up in

C) The interpretation of a declaration of intent is clearly confirming the objective meaning that the parties gave to the act of indicating the intent, and in a case where the contents of a contract are written in writing as a disposal document between the parties, the objective meaning that the parties gave to the act of expressing the intent should be reasonably interpreted by the contents of the written statement regardless of the parties’ inner intent (see, e.g., Supreme Court Decision 2002Da23482, Jun. 28, 2002). In such a case, if the objective meaning of the text is clear, barring any special circumstance, the existence and content of the declaration of intent should be recognized (see, e.g., Supreme Court Decision 200Da72572, May 24, 2002).

D) If the facts of the instant recognition were to be determined in accordance with the relevant legal principles, the debtor of the instant registration of the establishment of the creation of the second and second collateral security rights shall be deemed to be Defendant B. The repayment of the instant obligation of KRW 0,000,000,000 paid from KimF to Defendant 1 and the second collateral security rights shall be deemed to have been repaid by Defendant B. The said amount paid by Defendant 2B exceeds the purchase price of the instant real estate of KRW 1/2 of the building of this case, whereas the said amount paid by Defendant 2B exceeds the sales price of the instant real estate of KRW 1/2 of the building of this case, on the other hand, it may not be deemed that Defendant B had the right to receive the instant payment from Defendant 2B. Therefore, it is reasonable to deem that KimCC donated

E) Although Defendant B alleged that the borrowed money was consumed by KimCC while completing the registration of the establishment of the first and second establishment of the instant 1 and the second 2 mortgage, the evidence submitted by Defendant B alone is insufficient to accept it, and there is no other evidence to acknowledge it otherwise.

3) The base period for determining fraudulent act

A) In a case where a debtor engages in a series of acts of disposal of property, in principle, whether each act causes insolvency should be determined depending on whether each act occurred. However, in a case where there are special circumstances to deem the series of acts as a single act, whether a single act exists as a whole shall be determined by comprehensively taking into account whether the other party to the disposition is identical, whether each disposition is close to time, whether the other party and the debtor are specially related, and whether the motive or opportunity for each disposition is identical (see, e.g., Supreme Court Decision 2012Da34740, Mar. 27, 2014).

B) In full view of the following circumstances acknowledged by the aforementioned evidence, it is reasonable to view that each gift contract against the Defendants constitutes a case where there are special circumstances to deem the series of acts as a single act. As such, each gift contract against the Defendants ought to be determined as a whole as a whole, and whether it satisfies the requirements for fraudulent act ought to be determined as of October 0, 2014, which is the date of the last donation.

(1) The Defendants, the other party to the KimCC and the disposition, are children of all the births, and the Defendant headB are closely related to each other as children.

(2) Although there was a three-month interval from October 0, 2014, the first donation date to October 00, 2014, the last donation date, from October 00, 2014, the gift began immediately after the instant real estate contract, and most of the donations were raised as the purchase price of the instant real estate, the gift to the Defendants ought to be deemed to have been made the same opportunity.

4) Whether the act constitutes a fraudulent act

A) If a debtor donated his/her own property to another person under excess of his/her obligation, such act constitutes a fraudulent act unless there are special circumstances (see, e.g., Supreme Court Decision 2014Da41575, Oct. 27, 2014).

B) Comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 8 through 10, the active property at the time when KimCC donated the defendants to the defendants is 00,000,000 won [the remainder of deposit + 00,000 won + 00,000,000 won at the real estate market price of 00,000,000 ○○○○○○○-dong 000,000, 000 [the successful bidder] owned by ○○○○-dong 00,000,000 won or more (= the above ○○○ 00,000,000 won + national tax + 00,000,000 won]. However, it is recognized that the small property is in excess of the debt status.

C) If so, KimCC donated a total of KRW 000,000,000 to the Defendants in excess of its obligation, which constitutes a fraudulent act detrimental to the Plaintiff, a creditor. The KimCC knew that it would prejudice the Plaintiff, a general creditor at the time, and the Defendants’ bad faith, a beneficiary, is presumed.

(c) Scope of revocation and return of fraudulent act;

1) When a creditor exercises the right of revocation, in principle, he/she cannot exercise the right of revocation in excess of his/her claim amount, and at this time, the creditor’s claim amount includes interest or delay damages that occurred after the fraudulent act and the time of closing argument in fact-finding proceedings (see, e.g., Supreme Court Decisions 2000Da66416, Sept. 4, 2001; 2003Da19572, Jul. 11, 2003). The Plaintiff may exercise the right of revocation within the limit of KRW 00,000,000 in total of the transfer income tax, global income tax, and additional charges thereon.

2) Therefore, each gift agreement entered in the separate sheet on the details of remittance between the Defendants and KimCC shall be revoked in its entirety by fraudulent act, and the restoration to its original state shall be jointly and severally liable to the Plaintiff within the scope of KRW 000,000,000,000, and the amount of KRW 000,000 and KRW 5% per annum under the Civil Act shall be jointly and severally liable to pay damages for delay to the Plaintiff from the day following the day when this judgment becomes final and conclusive to the day when the payment is complete.

3. Conclusion

Thus, the plaintiff's claim of this case is reasonable, and it is so ordered as per Disposition by admitting it.

this decision is rendered.