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(영문) 부산지방법원 2008. 12. 24. 선고 2008가합1562 판결
부가가치세 체납자가 하도급한 공사의 대금을 채권으로 변제한 경우 사해행위에 해당하는지 여부[국패]
Title

Whether a fraudulent act constitutes a fraudulent act where a delinquent taxpayer paid the price of a subcontracted project with his/her bonds

Summary

Since there is no evidence that the repayment of the obligation for the construction price pursuant to the subcontract with the bonds has been conspired with the intention of undermining other creditors, the transfer contract of bonds cannot be deemed as a fraudulent act.

The decision

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

Text

1. The plaintiff's claim is dismissed.

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

Purport of claim

On October 3, 2007, the defendant and the non-party ○○ Construction Co., Ltd. cancel the bonds transfer and takeover contract between the defendant and the non-party ○○ apartment council, and the defendant notify the non-party ○○○ apartment council of occupants’ representatives that the bonds transfer and takeover contract for the above bonds was cancelled.

Reasons

1. Basic facts

The following facts may be acknowledged, either in dispute between the parties, or in relation to Gap evidence 1-1 through 3, evidence 1-2-1 through 3, evidence 3-1-2, evidence 4-1 through 6, evidence 5 through 31, Eul evidence 1, 2-1, 3-2, and evidence 3-1, and evidence 3-2, and testimony of the witness door ○○.

A. The plaintiff's claim against the non-party company

(1) Non-party 1, 206 and the first taxable period portion of the tax base return filed with the Plaintiff in relation to the operation of the above business, Non-party 1, 2, and 207, the non-party 1, 2006 integrated construction company (hereinafter referred to as the "non-party 1") was a corporation operating the construction business, and the director of the Seosan Tax Office issued a correction notice including the additional charge on each of the above value-added tax.

(2) However, as of October 15, 2007, the non-party company did not pay national taxes following the notice of correction as above, and thus, the amount in arrears of the value-added tax of the non-party company reaches KRW 129,183,950 in total.

B. Conclusion, etc. of the instant contract to install the instant parking lot and children playgrounds

(1) On June 21, 2007, the non-party company entered into a contract with the ○○○○ apartment apartment council (hereinafter referred to as the "○○○ apartment council"), with the non-party company's execution of the construction work ordered by the ○○○○ residents' council. The non-party company entered into a contract with the construction site, Kimhae-si, Kimhae-dong, ○○○○○, and the construction period from June 30, 2007 to August 28, 200 of the same year to set the construction cost as KRW 527,318,00, respectively (hereinafter referred to as the "instant contract for the construction of the parking lot and children's playgrounds"), and the defendant jointly and severally guaranteed the obligations owed by the non-party company to the ○○ residents' council according to the construction of the instant parking lot and children's playgrounds.

(2) On June 21, 2007, the non-party company entered into a subcontract for the construction of the above parking lot and children's playgrounds (hereinafter "the subcontract of this case") with the defendant, with the non-party company ordered the construction of the parking lot and children's playgrounds by the ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 1,000 (the construction cost was changed to KRW 521,70,000) and entered into a subcontract for the construction of the above parking lot and children's playgrounds (hereinafter "the subcontract of this case"), and the defendant completed the construction of the above parking lot and children's playgrounds in accordance with the subcontract of this case.

(3) Under the instant subcontract, the non-party company paid KRW 246,10,000 ( KRW 118,000,000 + KRW 128,100,000) to the Defendant on June 22, 2007, and KRW 128,10,000 in total, as August 29, 200, respectively.

C. Attachment of claims indicated in the separate sheet and conclusion of the instant contract for transfer and takeover of claims

(1) On October 3, 2007, the non-party company transferred to the defendant the claim stated in the attached Form to the defendant in lieu of the repayment of the unpaid construction price claim under the instant subcontract (hereinafter referred to as the “instant contract for transfer and takeover of claim”).

(2) On October 15, 2007, in order to execute the claim against the non-party company for the amount in arrears of the value-added tax on the non-party company, the court below confirmed the conclusion of the contract to build the instant parking lot and children's playgrounds between the non-party company and the non-party company and the ○○○ residents' representatives' representatives, and notified the ○○ residents' representatives' representatives of the seizure of the claim against the amount of 129,183,950 won of the amount in arrears among the amount in arrears under the above contract to build the parking lot and children's playgrounds. The non-party company sent a notice to the ○ residents' representatives' representatives' representatives at around

D. Meanwhile, while the non-party company did not have any specific property at the time of entering into the instant contract for the transfer and takeover of claims, the non-party company was in excess of its liability because it bears the Plaintiff’s debt equivalent to the amount of value-added tax in arrears of KRW 129,183,950 as above and the Defendant’s debt

2. The parties' assertion

A. The plaintiff's assertion

Since the non-party company in collusion with the defendant to evade the plaintiff's debts in excess of its debts, the contract on the transfer and takeover of the claim in this case should be revoked as it constitutes a fraudulent act, and the defendant has a duty to notify the ○○○ Council of Residents that the contract on the transfer and takeover of the claim in this case was revoked.

B. Defendant’s assertion

The contract for the transfer and takeover of bonds of this case is a subcontractor of the non-party company, and the defendant, who performed the construction of the parking lot and children's playgrounds of this case, transferred the bonds owned by the non-party company according to the above construction contract in lieu of the payment of the construction price claim under the above construction work. Thus, the contract for

3. Determination

A. The obligee’s right to seek repayment of an obligation does not interfere with the obligee’s exercise of its right, and the obligor does not refuse to perform the obligation on the ground that there are other creditors, as it bears the obligation to perform the obligation according to the nature of the obligation. As such, even in a case where the obligor’s repayment to a specific obligee in excess of the obligation leads to a decrease in the joint security of other creditors by performing the obligation, such performance does not constitute, in principle, constitute a fraudulent act unless the obligor, in collusion with some other creditors, performs the obligation with the intent to harm other creditors, and the same applies to the case where the obligor transfers other monetary claims in lieu of performing the existing monetary obligation (see, e.g., Supreme Court Decision 2003Da1205, Jun. 24, 2003).

In addition, the issue of whether a debtor in collusion with some of his creditors to harm other creditors is a fraudulent act should be proved by the person asserting that the debtor is a fraudulent act. It should be determined by comprehensively taking into account all the circumstances such as whether the debtor's claims against the debtor exist, the amount of repayment or assignment of claims received from the debtor, and the amount actually collected from the debtor's claims, the relationship between the debtor and the beneficiary, the debtor's ability to repay and the beneficiary's awareness thereof, the act of the beneficiary before and after repayment or assignment of claims, the situation of the debtor and the beneficiary at that time, and the circumstance of repayment or assignment of claims (see, e.g., Supreme Court Decision 2003Da60822, May 28, 2004

B. As to the instant case:

(1) The Defendant jointly and severally guaranteed the obligation owed by the non-party company to the ○○ Council of Residents following the creation of the instant parking lot and children’s playgrounds, and the fact that the non-party company notified the Plaintiff to the ○○ Council of Residents of the fact that the Plaintiff attached the unpaid construction cost due to the said installation work.

(2) Meanwhile, comprehensively taking account of the purport of the above facts, the Plaintiff: (a) concluded the instant contract with Nonparty 1 on October 15, 2007, which was directly related to the Defendant’s transfer of bonds; (b) concluded the instant contract with Nonparty 2, which was the date of the transfer of bonds; (c) there is no evidence to acknowledge it; and (d) on October 23, 2007, it is difficult for the Defendant to obtain the notice of the instant contract from Nonparty 1 to obtain the Plaintiff’s transfer of bonds from Nonparty 1, the Plaintiff’s representative director at the time of signing the instant contract; and (e) there is no need to obtain the Plaintiff’s notification of the transfer of bonds from Nonparty 2 to Nonparty 1, the Plaintiff’s owner and the Plaintiff’s representative director at the time of signing the instant contract; and (e) there is no need to obtain the Plaintiff’s notification of the transfer of bonds from Nonparty 2 to Nonparty 3, the Defendant, who was de facto in charge of the instant construction work.

(3) In light of the above circumstances, the facts acknowledged in paragraph (1) alone are difficult to view that the non-party company in collusion with the defendant in the process of repaying the obligation to pay the construction price under the instant subcontract against the defendant and concluded the instant claim transfer and takeover contract with the intent to harm other creditors, and there is no other evidence to acknowledge it. Thus, even if the instant claim transfer and takeover contract was concluded on October 15, 2007, it cannot be deemed that the instant claim transfer and takeover contract constitutes a fraudulent act (in light of the above circumstances asserted by the plaintiff, it is difficult to recognize that it was concluded on October 15, 2007 with the intent to harm the plaintiff in collusion with the non-party company, and thus, it is difficult to readily recognize that the instant claim transfer and takeover contract was concluded on the premise that the instant claim transfer and takeover contract constitutes a fraudulent act).

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

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