Daejeon District Court 2008Na3426 (207.03)

The burden of proving that there was no bad faith of the purchaser for ratification of the fraudulent act.

In a case where it is not clearly revealed through the evidence of the Defendants whether the Defendants were unaware of their knowledge at the time of purchase of real estate or the time of payment in substitution or not, the Defendants’ disadvantage cannot be returned to the Defendants who have the burden of proof under the civil law.

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

Article 30 of the National Tax Collection Act

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

Although examining all of the records of this case and the judgment of the court below and the grounds of appeal, the argument of the appellant's grounds of appeal cannot be accepted pursuant to Article 4 of the Act on Special Cases Concerning the Procedure of Appeal. Therefore, the appeal is dismissed pursuant to Article 5 of the Act, and it is so decided as per Disposition by

Daejeon District Court Decision 2008Na3426 (Law No. 03, 2008)

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of the claim

A. As to the real estate No. 1 listed in the separate sheet, the sales contract concluded on Jan. 19, 2007 between Defendant Manhee and Nonparty Kim Kim ○, was revoked, and Defendant Manhee implements the procedure for cancellation of ownership transfer registration completed on Jan. 31, 2007 by the Daejeon District Court’s Head of the Daejeon District Court’s Port Office and its Branch Office of Registry No. 1854, and

B. As to the real estate listed in the separate sheet No. 2 and 3, the sales contract concluded on January 24, 2007 between Defendant Kim ○ and Nonparty Kim Kim ○, is revoked, and Defendant Kim Kim ○-gil will implement the procedure for registration cancellation of ownership transfer registration completed on January 31, 2007 by the Head of Daejeon District Court’s District Court’s port registration office and 1853.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim against the defendants is dismissed in entirety.

1. Basic facts

A. In relation to the illegal use of gasoline supplied by Nonparty Kim ○-si, the director of the tax office under the Plaintiff’s jurisdiction determined and notified that the aggregate amount of value-added tax and traffic tax between January 2003 and June 2006 was KRW 72,758,470 as of March 31, 2007.

B. On the other hand, Kim Jong-ki sold the real estate No. 1 listed in the separate sheet to Defendant ○○ who is in a relative relationship on January 19, 2007, and completed the registration of ownership transfer on January 31, 2007. On January 24, 2007, the real estate No. 2 and 3 listed in the separate sheet was sold to Defendant Kim Jong-sik who is a relative relationship on January 24, 2007, and completed the registration of ownership transfer on January 31, 2007. The real estate No. 4 listed in the separate sheet was sold to his relative Kim Jong-ro, a relative on January 25, 2007, and completed the registration of ownership transfer on January 31, 2007, which led to the status of excess obligations.

[Ground of recognition] Facts without dispute, entry of Gap 1 through 7 evidence (including paper numbers) and the purport of the whole pleadings

2. Judgment on the ground of the Plaintiff’s claim

According to Article 21 (1) 7 of the Framework Act on National Taxes, the time when the liability for the payment of value-added tax is established when taxable goods such as gasoline are taken out from the manufacturing place, and in the case of traffic tax, each liability for payment is established when taxable goods such as gasoline are taken out from the manufacturing place. Therefore, the tax claim against the debtor Kim ○-kak are already established prior to the disposal of the above real estate by Kim ○-kak's dispositive act, and thus the debtor's claim against the debtor can be a preserved claim for revocation of fraudulent act. Since Kim ○-kak, which bears the liability for payment against the plaintiff, sells each of the real estate listed in the separate sheet to the defendants in the same birth or in a relative relationship with the plaintiff, which is easily consumed for consumption, and thus, it is a fraudulent act against the plaintiff as the creditor, barring any special circumstances

3. Judgment on the defendants' assertion

As to this, the Defendants asserted that their purchase of real estate listed in the separate sheet was impossible because they could harm the creditors without knowledge of their tax liability or purchased real estate at a price equivalent to the market price in lieu of payment in lieu of payment in lieu of the debtor Kim Jong-k's own property. However, since the debtor's purchase of real estate and alteration of money which is easy to consume is a fraudulent act against the creditor, barring any special circumstance, the intent of harm in the debtor Kim Jong-k's intent is ratified, and the burden of proof that the purchaser or the transferee did not have bad faith is against the defendants, who are the beneficiary (see, e.g., Supreme Court Decision 200Da41875, Apr. 24, 2001). If it is not clearly revealed through the defendants' proof that the defendants did not know that they would harm the creditors at the time of the purchase in lieu of payment in lieu of the defendants' burden of proof under civil law, the defendants could not have any disadvantage to the defendants who have the burden of proof.

4. Conclusion

Therefore, each sales contract between the defendants and the non-party 1 entered in the separate sheet has been revoked, and the defendants are obligated to perform the procedure for cancellation registration of each transfer of ownership, which was completed with respect to each of the above real estate, so the plaintiff's claim against the defendants shall be accepted for all of the reasons. The judgment of the court of first instance is justified in conclusion, and it is so decided as per Disposition by the defendants' appeal.