Whether a fraudulent act is established when the title trustee suffered losses

In the event that a debtor has held a title trust of real estate under high probability of establishing a tax claim as long as the debtor was insolvent at the time of the fraudulent act, whether the trustee’s profit can not be deemed any obstacle to the establishment of a fraudulent act

Article 31 of the National Tax Collection Act (Cancellation of Fraudulent Act)

1. The title trust agreement concluded on February 26, 2007 between the defendant and the non-party ○ on each real estate listed in the separate sheet shall be revoked within the limit of KRW 44,870,440.

2. The defendant shall pay to the plaintiff 44,870,440 won with 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of complete payment.

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

The primary purport of the claim is as shown in the text of the claim.

Preliminary claim: The contract of donation concluded on February 26, 2007 with respect to each of the real estate listed in the separate sheet (hereinafter referred to as the "real estate of this case") between the defendant and the non-party ○○ shall be revoked within the limit of KRW 44,870,440. The defendant shall pay to the plaintiff the amount of KRW 44,870,440 and the amount at the rate of KRW 5% per annum from the day following the date of the final decision of this case to the day of full payment.

1. Basic facts

The following facts are not disputed between the parties, or can be recognized in full view of the whole purport of Gap's testimony and pleading with witness in each statement (including each number) of Gap's evidence 1 to 6.

A. From December 21, 2006 to January 5, 2007, through a tax investigation, it was found that 44,870,40 won was omitted in global income tax on interest income on non-business proceeds through monetary loans from December 21, 2006 to January 5, 2007, and that the debtor was notified as of May 1, 2007.

B. Meanwhile, on February 22, 2007, an obligor who was insolvent at the time was transferred the ownership of the instant real estate at the time of the time as payment in lieu of the claim amounting to KRW 290,80,000 of loan amounting to KRW 22,000,000 for Nonparty 1’s gambling (the date of the agreement later appears to have been amended to June 22, 2007). However, the obligor agreed to receive the transfer of ownership in the name of the Defendant, the husband, for repayment of the debt to other creditors (the president, the Hong○) or for convenience of financial security.

C. Accordingly, on February 26, 2007, the debtor agreed with the defendant to title trust the real estate of this case with the defendant, and directly completed the registration of ownership transfer on the real estate of this case to the defendant from Park ○ following the following day, and thereafter, the real estate of this case was sold to a third party on or around 2007.

2. The assertion and judgment

A. It is reasonable to view that an act of an obligor in excess of his/her obligation under title trust with a third party to make it difficult for creditors to enforce compulsory execution constitutes a fraudulent act in relation to creditors, barring any other special circumstances. According to the above acknowledged facts, the obligor was aware of the fact that he/she was investigated at the tax office prior to his/her Park ○ case and the agreement on payment in kind, and thus notified the amount of tax due to his/her failure to pay a large amount of national taxes, and even though he/she had already been unable to repay the total amount of debts to other creditors, it would constitute a fraudulent act in relation to the creditors including the Plaintiff, etc.

Therefore, the title trust agreement concluded on February 26, 2007 between the debtor and the defendant with respect to the real estate of this case shall be revoked within the limit of 44,870,440 won in amount of national taxes, but since the ownership of the real estate of this case is already transferred to a third party and it is impossible to restore the real estate to its original state by the method of cancelling the ownership, the defendant who is the beneficiary shall compensate the plaintiff for the amount equivalent to the above amount of 44,870,440 won and the amount equivalent to 5% per annum under the Civil Act from the day following the date of the final decision of this case to

B. Defendant’s assertion

(1) As to this, the Defendant asserts that the tax imposition disposition by the Plaintiff is null and void on the grounds that three creditors other than the obligor are more than the obligor. However, there is no evidence to acknowledge that the Plaintiff’s tax imposition disposition by the obligor is obvious and important, but there is no apparent and important defect in the Plaintiff’s taxation disposition by the obligor. Therefore, the Defendant’s above assertion is without merit.

(2) In addition, the defendant acquired the real estate in this case and sold it to a third party and did not gain any profit, and thus, the title trust agreement between the debtor and the defendant cannot be deemed a fraudulent act for the purpose of tax avoidance. However, it is not sufficient to recognize that the entries in the evidence Nos. 1 and 2 (including each number) and the witness testimony of the debtor alone are damages equivalent to the above argument, and there is no other evidence to acknowledge otherwise. Even if it is not a domestic case, since the debtor was insolvent at the time of the fraudulent act, the real estate in this case was trusted in trust to the defendant under the condition that it is highly probable that the plaintiff's tax claim would be established, as seen earlier, it cannot be deemed that the defendant's profit or loss has any obstacle to the establishment of the fraudulent act in this case. Thus, the defendant's above assertion has no merit.

3. Conclusion

Therefore, the plaintiff's primary claim of this case is reasonable, and it is so decided as per Disposition with the assent of all participating Justices.