Seoul Eastern District Court 201 Gohap3938 ( November 09, 2011)

(b) with respect to any deficiency in the joint security of the claim, such deficiency shall be revoked by the

In order to become a fraudulent act, the debtor's act of disposing of his/her assets shall cause a decrease in the debtor's whole property and a shortage of claims in joint security due to such act is required to cause a decrease in the amount of active property due to the payment of this case, which is implemented under the gift contract in this case, and there is a decrease in the joint security of claims, so the fraudulent act

2011Na98145 Revocation of Fraudulent Act

Korea

PP

Seoul Eastern District Court Decision 201Gahap3938 Decided November 9, 2011

June 29, 2012

August 24, 2012

1. Of the judgment of the court of first instance, the part regarding the Defendant’s failure which revoked the above contract exceeds the scope of KRW 000 as to the 000 gift contract concluded on December 5, 2007 between the Defendant and Nonparty A, and the Plaintiff’s claim corresponding to the revoked part is dismissed.

2. The part against the defendant ordering payment in excess of the amount ordered under the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

The defendant shall pay to the plaintiff 00 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

3. The defendant's remaining appeal is dismissed.

4. One-half of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant.

1. Purport of claim

The contract of donation of KRW 000 concluded on December 5, 2007 between the defendant and the non-party A shall be revoked. The defendant shall pay to the plaintiff 00 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

2. Purport of appeal

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed.

1. Quotation of judgment of the first instance;

This Court’s reasoning is as follows, inasmuch as the reasoning of this case is the same as that of the corresponding part of the judgment of the court of the first instance, in addition to the addition of the following specifications, this Court cites it as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act. Two parts written or added.

A. The third side of the judgment of the first instance court is as follows:

(b) add "No. 22 No. 1 to 4," following the evidence No. 1, No. 2 of the first instance judgment No. 4 to "No. 22".

C. On the 6th judgment of the first instance court, the 14th "No. 15th "The 3rd "Real Estate Transfer Income Tax Act" is added to the following.

(d) Forms 6 through 7, 9, 6, 16, and 9, of the judgment of the first instance shall be followed as follows.

C) Determination

(1) All claims for comprehensive real estate holding tax of this case and claims for the transfer income tax of the first real estate of this case are claims established prior to the date of a donation contract claiming that the plaintiff is a fraudulent act, and thus the creditor is subject to the revocation right.

(2) Each additional tax portion among the claim for transfer income tax on the first real estate of this case, the claim for transfer income tax on the second real estate of this case, and the claim for transfer income tax on the third real estate of this case (the main tax and additional tax) were established after the date of the donation contract claiming that the plaintiff was fraudulent act. However, since the sale of the first, second, and third real estate of this case and the receipt of balance was made before December 5, 2007, which was already owned by the formerA before the date of the donation contract of the plaintiff's assertion, there was a legal relationship that forms the basis for establishing the plaintiff's transfer income tax claim for the former real estate of this case and the claim for transfer income tax on the non-report and non-payment of additional tax, and the formerA did not perform all the preliminary return of transfer income tax base as well as the procedure for filing a final return and voluntary return as to each of the above real estate, it is highly probable that the transfer income tax claim of this case and additional tax on each of the above real estate of this case were established in the near future.

(e) No. 14 of the 7th judgment of the first instance court has no dispute, or there is no dispute, with Gap evidence No. 18, No. 21-1 and No. 2. It can be recognized by the statements.

(f)on No. 8 of the first instance judgment, the following items shall be added to positive property under paragraph 3(h)(h) of the third instance judgment:

(g) 563,285,166 in the aggregate column of No. 8th of the judgment of the first instance court shall be 000.

H. Following the 'Written Notice No. 5 of the Decision of the court of first instance No. 9 (Evidence No. 8)', the 'Written Notice No. 12 of the Real Estate Lease Contract (Evidence No. 12)' is added.

(i)Nos. 3 and 4 of the first instance judgment shall be followed by the following:

(C) Ultimately, the active property of the previous AA at the time of the donation contract alleged by the Plaintiff as a fraudulent act is KRW 000 (=00 won +00 won).

(j) there has been no dispute or there has been no dispute about 10th 7th 7th son of the first instance judgment. It can be recognized by the respective provisional actions in Gap evidence 21-1 and 2.

(k)on 10 pages 10 (No. 2) of the first instance judgment, the following items shall be added to the small property under paragraph 10 (No. 2):

l. The '000' in the total column of No. 11 of the first instance judgment shall be '000'.

(m) Forms 10, 12, and 11 of the first instance judgment shall be conducted in the same manner as multi-Eup.

(3) Determination

In order to become a fraudulent act of a debtor's act of disposing of his/her assets, such act shall cause a decrease in the debtor's whole property and in short of the joint security of claims, namely, the debtor's passive property shall be more than active property (Supreme Court Decision 2009Da47852 Decided October 29, 2009). According to the above facts, the active property of the wholeA exceeds 000 won (=00 won -00 won) at the time of the date of the contract for the donation of the plaintiff's assertion, but the active property was reduced to 000 won, and there is a shortage of the joint security of claims against the wholeA due to the payment of this case (=00 won -00 won). Thus, the contract for the donation of the plaintiff and the payment of this case may constitute a fraudulent act.

(n) On the 6th written judgment of the first instance court, only the fact of the 13th written judgment and the statement in the 11th and 12th written evidence are written.

(o) Forms 14, 20, 15, and 8 of the first instance judgment shall be followed as follows.

2) As to the instant case, even though the active property of the previous A was more than KRW 000 (=00 - 000 won) at the time of the instant donation contract, the active property has been reduced to KRW 000 due to the instant payment, which was implemented under the instant donation contract, and there is a shortage in the joint security of claims against the previous A. As such, only the said KRW 00 among the instant donation contract should be revoked as fraudulent act.

3) Therefore, the instant donation contract shall be revoked within the limit of 000 won, and the Defendant is obligated to pay to the Plaintiff losses for delay calculated at the rate of 5% per annum under the Civil Act from the day following the day when the instant judgment became final and conclusive to the day when the instant judgment is fully repaid to the day when the instant judgment is fully repaid.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable within the above scope of recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, part of the defendant's appeal is accepted, and the part against the defendant in the judgment of the court of first instance is revoked and the plaintiff's claim corresponding to the revoked part is dismissed as per Disposition.