If it is impossible or considerably difficult to return the original property, compensation for value is allowed.

Restoration due to the revocation of fraudulent act is, in principle, a method of returning originals, or when there are circumstances where it is impossible or significantly difficult to return originals, monetary compensation is allowed as monetary compensation in lieu of returning originals.

Article 30 of the National Tax Collection Act: Revocation and Restoration of Fraudulent Act

2018 Ghana 113799 Revocation of Fraudulent Act

Korea

IsaA

2019.06.25

2019.07.09

1. The sales contract concluded on February 25, 2017 between the defendant and the non-party KimB with respect to the real estate listed in the separate sheet shall be revoked within the scope of KRW 30,980,000.

2. The defendant shall pay to the plaintiff 30,980,000 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

3. The plaintiff's remaining claims are dismissed.

4. The costs of lawsuit shall be borne by each person;

Cheong-gu Office

The sales contract concluded on February 25, 2017 between the defendant and the non-party KimB is revoked. The defendant shall pay to the plaintiff 106,700,000 won with 5% interest per annum from the day following the conclusion of this judgment to the day of full payment.

1. Facts of recognition;

A. Nonparty KimB, while operating a personal business chain, was in arrears with the payment of value-added tax and global income tax from 2013 to 2016. As of the filing of the instant lawsuit, the amount of arrears, including the additional dues, reaches KRW 129,300,480 in total.

B. (1) B B B B leased and resided the real estate stated in the separate sheet (hereinafter “instant real estate”) from DD Housing Co., Ltd. before the instant lawsuit was filed in KRW 30,980,000 prior to the instant lawsuit.

SheB decided on February 24, 2017 that the sale price for the instant real estate shall be KRW 106,70,000,000 for the instant real estate between the company and the foregoing company; however, the deposit deposit shall be KRW 30,980,000 for sale in lots; and the remainder of KRW 75,720,000 shall be paid on March 23, 2017.

Fidelity KimB determined the purchase price of the instant real estate as KRW 106,70,000 with the Defendant, who is the wife on February 25, 2017, and drafted a sales contract stating that the down payment of KRW 30,980,000 shall be paid at the time of the contract and the balance of KRW 75,720,00 shall be paid at the time of the contract, and that the remainder of KRW 75,720,00 shall be paid on March 23

Applicant on March 14, 2017, the Defendant set up a collateral on the instant real estate and borrowed KRW 84,000,000 from EE Bank Co., Ltd., to the said company, and remitted KRW 75,859,90 to the said company.

(v) On March 14, 2017, the registration of transfer of ownership in the name of KimB (No. 3322) and the registration of transfer of ownership in the name of the defendant (No. 3323) with respect to the instant real estate was successively terminated, and the registration of establishment of a neighboring mortgage in the name of the EE bank (No. 3324) was completed, and the registration of establishment of a neighboring mortgage in the FF bank (No. 3329) was cancelled.

C. Meanwhile, KimB has no current assets.

Evidence A Evidence Nos. 1 through 6, Eul No. 6, 7, the purport of the whole pleadings

2. Determination

(a) The responsibility property of KimB;

The obligee’s right of revocation is a right to revoke the obligor’s act of disposal of his/her property and to seek restitution thereof, with the aim of returning the obligor’s property deviating from the fraudulent act to the obligor for all creditors (see, e.g., Supreme Court Decision 2007Da40802, May 27, 2010).

However, as seen earlier, KimB leased and resided the instant real estate in KRW 30,980,00, and prepared a sales contract between the company and the above company on February 24, 2017. On March 14, 2017, the registration of ownership transfer concerning the instant real estate was completed, and the Defendant purchased the instant real estate on February 25, 2017, before the completion of the registration of ownership transfer concerning the instant real estate by KimB.

Ultimately, the sales contract alleged by the Plaintiff as an act of disposal by KimB was concluded before the acquisition of the instant real property claimed by the Plaintiff as the responsible property by KimB. At the time of the sales contract, the responsible property by KimB is KRW 30,980,000, not the instant real property.

B. Whether a fraudulent act was committed

The substance of the instant sales contract is for KimB to transfer to the defendant the claim for the refund of the deposit deposit against the non-party company, and it constitutes a fraudulent act where KimB entered into the instant sales contract with the defendant under the status of excess of the deposit.

Meanwhile, as long as the intent of the damage of KimB, a debtor, is recognized, the defendant's intention of injury is presumed to be the beneficiary, so the burden of proof that there was no bad faith is the defendant (see, e.g., Supreme Court Decision 9Da2515, Apr. 9, 199). In light of the circumstances of the sales contract and the details of the sales contract as seen earlier, it cannot be deemed that there was a proof that there was no bad faith on the part of the defendant.

(c) Methods of reinstatement;

In principle, restitution due to the revocation of fraudulent act shall be based on the method of returning originals. However, in cases where it is impossible or significantly difficult to return originals, the equivalent amount of monetary compensation shall be allowed in lieu of returning originals (see, e.g., Supreme Court Decisions 2003Da40286, Dec. 12, 2003; 2018Da203715, Apr. 11, 2019).

In this case, the lease contract between KimB and the non-party company is terminated due to the transfer of the balance for sale in lots to the non-party company on March 14, 2017 after the contract of this case was concluded, and the lease deposit repayment claim against the non-party company of KimB was extinguished. This constitutes a case where it is impossible or considerably difficult to return originals, and thus, the defendant shall be ordered to order compensation for value.

D. Sub-determination

Therefore, the sales contract of this case is revoked within the scope of KRW 30,980,00, and the defendant shall be ordered to pay the plaintiff 30,980,000 with interest calculated at the rate of 5% per annum from the day following the conclusion of the judgment to the day of full payment.

3. Conclusion

Thus, the plaintiff's claim is justified within the above scope, and it is partially accepted.