Seoul Eastern District Court 2007Kahap10311 ( April 11, 2008)

Whether a collusion in collusion constitutes a fraudulent act by acquiring a claim;

채권양수자가 양도자의 처남댁이며, 동일지번 건물에 거주한 사실, 피고의 동 건물 임대차 계약 관련 소송시 사실관계를 종합할 경우 통모하여 다른 채권자들을 해하기 위하여 채권을 양도한 것으로 판단됨

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

Article 30 of the National Tax Collection Act (Cancellation of Fraudulent Act)

1. The plaintiff's appeal is dismissed.

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

1. Purport of claim

피고와 곽◯◯ 사이에 별지 1 목록 기재 채권에 관하여 2007. 1. 10. 체결된 확정채권 양도, 양수 계약을 취소한다. 피고는 곽◯◯에게 피고가 한국자산관리공사에 대하여 별지 2 목록 기재 공매절차에 의하여 가지는 250,000,000원의 배분금지급청구권을 양도하고, 한국자산관리공사에게 위 채권을 양도하였다는 취지의 통지를 하라.

2. Purport of appeal

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

1. Quotation of judgment of the first instance;

The court's explanation of this case is the same as the reasoning of the judgment of the court of first instance, and thus, citing this as it is in accordance with the main text of Article 420 of the Civil Procedure

2. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Seoul Eastern District Court 2007Kahap10311, 2008.11]

1. On January 10, 2007, the contract for the transfer and acquisition of confirmed bonds entered into on January 10, 2007 between the defendant and the peripheral area shall be revoked.

2. The defendant transferred 250,000,000 won, which the defendant had with respect to the Korea Asset Management Corporation according to the public sale procedure listed in the attached list No. 2 list, to the YY and notified the Korea Asset Management Corporation that he transferred the above claim.

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

The same shall apply to the order.

1.Basics

가. 곽○근은 원고에 대한 조세채무자이고, 피고는 곽○근의 처남댁이다.

B. As of June 1, 2007, a person who operated a salt plant, etc. with the trade name of “○○ Salt Business” is delinquent in taxes as described below as of June 1, 2007, including the failure to pay up to the present day, even though he was notified of February 13, 2001 of global income tax of 176,93,370 won and global income tax of 167,542,330 won in 198 and global income tax of 1999.

C. On October 1, 1997, 1997, ○○○-9 ○○-9 Dadong, Seoul, ○○○○○-9 Dadong, 2, 101 (hereinafter “the instant real estate”) with respect to the instant real estate, 250,000 won, which was paid on October 22, 1992 by the Seoul East Eastern District Court, and 250,000,000 won, and 3682,00 won, which was paid on October 1, 1997, were transferred to the mortgagee as the secured claim of the said right, and on January 10, 207, the mortgagee transferred the secured claim of the said right to the Defendant (hereinafter “the instant claim”). On January 10, 2007, the said registration of the transfer under the name of the Defendant (Seoul East East District Court Decision 682, Jan. 24, 2007).

D. Around the time of the assignment of the above bonds, there was no particular assets other than the above bonds.

E. Meanwhile, the Seoul Metropolitan Government requested the Korea Asset Management Corporation to sell the real estate of this case on the ground of the delinquency in paying the local taxes on the Ma○-ro. In the above public sale procedure, the Defendant requested the distribution of the maximum debt amount of the said right to collateral security in the above public sale procedure and distributed KRW 250,000,000 as shown in the attached Table 2 on October 25, 2007, but the Plaintiff did not receive the provisional seizure of the Defendant’s right to claim the distribution amount (hereinafter “the right to claim the distribution amount of this case”).

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 7, purport of whole pleadings

2. The parties' assertion and judgment

A. The parties' assertion

The Plaintiff’s act of transferring the instant claim constitutes a fraudulent act since it transferred its own property to the intent of harming the Plaintiff, a tax claim holder, who is an obligor, and therefore, the Defendant, a beneficiary, should transfer the right to claim the instant amount to the YYY. As such, the Defendant asserted that the instant claim should be legitimately transferred the instant claim with the repayment of KRW 130,000,000, lease deposit money, KRW 30,000,00, and the agreed deposit money, etc. against the YYYY, as it is based on the principal place of debt, and it cannot be deemed that ○○ and the Defendant in collusion with the intent to harm the Plaintiff, and thus, the Defendant did not constitute a fraudulent act.

B. Determination

According to the facts based on the facts, it is recognized that the claim of this case, which is the only property under the condition that the ○○○ is liable for the tax liability against the plaintiff, has been transferred to the defendant to reduce joint security.

Furthermore, considering whether the above assignment of claims constitutes a fraudulent act, it does not interfere with the obligee’s exercise of right on the ground that there exist other creditors. Inasmuch as an obligor cannot refuse to perform his/her obligation on the ground that there are other creditors because it bears the obligation to perform the obligation according to the principal place of the obligation, even in cases where the obligor’s repayment according to the principal place of the obligation exceeds the obligation, thereby reducing the joint security of other creditors, such repayment does not constitute a fraudulent act as a matter of principle, unless the obligor, in collusion with some creditors and with some other creditors, intended to harm other creditors, and thereby, transfers other monetary claims instead of performing the existing monetary obligation. In addition, the issue of whether the obligor performed performance or assignment of claims with some creditors in collusion with other creditors should be proved by the person who asserts that it is a fraudulent act. This should be determined by comprehensively taking into account whether the obligor’s claim exists, the amount of repayment or collection received by the beneficiary from the obligor, the circumstances surrounding the repayment and delivery of claims between the obligor and the beneficiary and the beneficiary and the beneficiary’s ability to perform and its entire circumstances at the same time.

Therefore, according to the facts that the defendant in collusion with the above ○○○○○○○○○○○○○ and transferred the above claims to the above ○○○○○○○○○○○○○○○○○○○○○○, 1 to 3, 2, 6-1 to 6, 20, and 25, in light of the overall purport of pleadings, the defendant, who is the wife of the ○○○○○○○ and ○○○○○○○○○○’s 0, 1978, 100, 200, 200, 300, 300, 00, 40, 000, 50, 40, 000, 70, 000, 00, 150, 200, 200, 200, 30, 200, 197, 30, 30,000.

Therefore, the contract on the transfer of the instant claim concluded on January 10, 2007 between the defendant and the outer ○○ and the defendant should be revoked by fraudulent act, and the defendant has a duty to transfer the right to the instant claim to the Korea Asset Management Corporation and to notify the Korea Asset Management Corporation that the defendant transferred the said claim to the outer ○○ branch.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.