Whether it constitutes a fraudulent act

It constitutes a fraudulent act by disposing of the responsible property called the right to claim ownership transfer registration.

§ 406. Revocation of Civil Code

Suwon District Court of Suwon District 2014Gahap23871

Korea

AA, KimB

October 2015

October 29, 2015

1. The plaintiff's primary claim against the defendant Jeong-A is dismissed.

2. The agreement dated June 24, 2013 entered into between Nonparty ParkCC and Defendant Jeong-A shall be revoked within the limit of KRW 286,150,00,00, and Defendant Jung-A shall pay to the Plaintiff 286,150,000 with 5% interest per annum from the day following the day this decision became final and conclusive to the day of full payment.

3. The plaintiff's claim against the defendant KimB and the remaining preliminary claim against the defendant Jeong-B

The dismissal is dismissed.

4. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant KimB shall be borne by the Plaintiff, and the part arising between the Plaintiff and the Defendant Kim Jong-B shall be borne by the Plaintiff.

Cheong-gu Office

1. Claim against the defendant KimB and the primary claim against the defendant Jeong-B

With respect to the real estate listed in the separate sheet (hereinafter referred to as the "real estate of this case"), the defendant Jung-A performed the cancellation registration procedure for the ownership transfer registration completed on June 24, 2013 by the Incheon District Court, Incheon District Court, Busan Branch of the Incheon District Court, Kimpo Office, Kimpo Office (hereinafter referred to as the "instant ownership transfer registration"), and the defendant KimB implemented the procedure for the ownership transfer registration based on the property division agreement on June 24, 2013 to the non-party Park Young-B.

2. Preliminary Claim against Defendant A;

The termination of the gift agreement between the non-party ParkCC and the defendant Jeong-A, which was concluded on June 24, 2013, and the defendant Jung-A shall pay to the plaintiff 286,150,000 won and 5% interest per annum from the day following the day this decision became final and conclusive to the day of complete payment.

1. Basic facts

1) Although the written application for the modification of the purport and cause of the claim submitted by the Plaintiff on May 27, 2015 is stated as " June 24, 2014", it appears to be a clerical error of June 24, 2013, which is thus corrected ex officio.

○ ParkCC paid KRW 50,00,000 to Defendant KimB until June 24, 2013, and Defendant KimB received the said money from ParkCC, and at the same time, issued documents necessary for the registration of transfer of ownership of the instant real estate to Defendant JeongA, and Defendant JungA takes over taxes, public charges, and collateral security obligations of the instant real estate in the name of the Livestock Cooperatives established on June 29, 2012.

○ ParkCC waives the remainder of the claim in the Daegu Family Court case No. 2012 2974 and withdraws the lawsuit in the above case.

○ ParkCC’s side and Defendant KimB’s relation to de facto marriage between the next ParkCC and Defendant KimB

A. Nonparty GabCC is the Silver of Defendant U.A., and the Defendant KimB had a de facto marital relationship from around 1998.

B. Defendant KimB completed the registration of ownership transfer on September 8, 2008 on the instant real estate due to sale and purchase on September 8, 2008. At the time, most of the acquisition funds of the instant real estate were borne by ParkCC.

C. On July 9, 2012, 2012, on which the de facto marital relationship with Defendant KimB took place, the ParkCC filed a provisional injunction against the instant real estate disposition with the Incheon District Court Branch Branch of Incheon District Court (2012 business group149), and on July 20, 2012, the provisional injunction registration was completed on July 20, 2012. On August 23, 2012, ParkCC filed a lawsuit against Defendant KimB for property division, etc. (the first Daegu District Court was accepted as the Daegu District Court 2012Ra2974 (the first Daegu District Court 2012Ga8509) and was transferred to the Daegu Family Court on November 21, 2012 (hereinafter “instant property division lawsuit”).

D. On June 24, 2013, on which the instant lawsuit for division of property was pending, ParkCC agreed with Defendant KimB, and Party A (hereinafter “instant agreement”) on the following terms (hereinafter “instant agreement”).

No civil or criminal objection shall be raised for all reasons.

In the event that 00,000,000 won is paid to Defendant KimB as a penalty for a civil or criminal action against Defendant KimB by 00,000, 000 won is jointly and severally paid to Defendant KimB.

When Defendant KimB raises an objection to the transfer income tax of ParkCC, Defendant KimB shall pay the sum of KRW 30,000,000,000 to ParkCC and Defendant JeongA as penalty.

E. Accordingly, Defendant AA on June 24, 2013 with respect to the instant real estate on June 22, 2013.

On June 28, 2012, following the completion of the registration of ownership transfer of this case on the ground of each of the reasons, the secured debt (60,000,000) established on the instant real estate was repaid and cancelled.

F. Since June 28, 2013, ParkCC withdrawn the instant property division lawsuit, and July 15, 2013.

The above provisional disposition registration, which was completed on the real estate of this case, was revoked.

G. Meanwhile, ParkCC’s total amount of KRW 371,612,380, including additional charges, around June 2013, which was at the time of the instant agreement (i.e., capital gains tax of KRW 367,120,020 + KRW 3,174,470 + global income tax of KRW 3,174,470 +

614,770 won + Securities Transaction Tax 703,120 won) was delinquent in the amount of national taxes, and this was in excess of the liability.

[Ground of Recognition] Unsatisfy, entry in Gap evidence 1 to 8, 10 (including each number), and change

The purpose of the whole theory

2. Determination as to the claim against the defendant KimB and the primary claim against the defendant Jeong-B

A. Summary of the plaintiff's assertion

ParkCC purchased the instant real estate from Defendant KimB and entrusted only the ownership transfer registration title of this case to Defendant Park Jong-B. As such, the ownership transfer registration of this case must be cancelled by the Act on the Registration of Real Estate under Actual Titleholder’s Name. Therefore, the Plaintiff, the title holder of Park Jong-sik, shall exercise against Defendant Jeong-A the right to claim the cancellation registration of the ownership transfer registration of this case against Defendant Kim Jong-B, the owner of the instant real estate, in succession, by subrogation of Defendant KimB and ParkCC, and exercise the right to claim the transfer registration of ownership under the agreement of this case against Defendant Kim Jong-B.

B. Determination

Therefore, it is insufficient to acknowledge that ParkCC and Defendant Jung-AA had a title trust agreement to purchase the instant real estate from Defendant Kim Jong-le, and only the name of the registration was completed in the future of Defendant Jung-A, solely with the evidence submitted by the Plaintiff, as to whether the instant transfer registration was made in accordance with the title trust agreement, and there is no other evidence to acknowledge otherwise.

Rather, the following circumstances are revealed by considering the overall purport of the pleadings in the evidence Nos. 3 through 17 (including each number), i.e., (10,000,000 won which was loaned by YE, the husband of which was transferred on June 24, 2013 to NA and paid 50,000,000 won to the defendant KimB on behalf of YCC in accordance with the instant agreement, and the remaining 60,000,00 won was used to repay the secured debt of the right to collateral security established on the instant real estate; (2) the cost of completing the registration of ownership transfer of the instant real estate; (3) the cost of a certified judicial scrivener for completing the registration of ownership transfer of the instant real estate; and (4) the cost of a fine for negligence for failure to report the real estate transaction, which was imposed by YY, appears to have been borne by the defendant Jeong; and (3) the real right to the instant real real estate, such as the lease agreement, was concluded between the defendant Jeong and the real right to the instant real real property.

Therefore, the Plaintiff’s claim against Defendant KimB, which was premised on the existence of a title trust agreement between ParkCC and Defendant Jung-A, and the primary claim against Defendant Jeong-B, are without merit.

3. Determination as to the conjunctive claim against Defendant A.A.

A. Determination as to Defendant AA’s defense on this part of this case

1) Summary of the assertion

The Plaintiff: (a) around the end of 2013, ParkCC filed a provisional injunction against disposal of the instant real estate; (b) and (c) was aware of the fact that ParkCC filed a lawsuit claiming the division of property against Defendant KimB and withdrawn the said lawsuit. In addition, around the end of 2013, the instant real estate had already been registered as the ownership transfer to Defendant JeongA; and (c) Defendant JungA paid the fine for negligence imposed on December 23, 2013 due to the failure to file a report on real estate transactions on December 23, 2013. Therefore, the Plaintiff ought to be deemed to have known that ParkCC, which was in excess of the obligation, was the disposal of the instant real estate at least at the end of the end of 2013, and thus, the instant claim seeking the revocation of a fraudulent act filed on May 27, 2015, which was unlawful by setting the exclusion period.

2) Determination

In light of the following circumstances, it is difficult for the Plaintiff to know that the Plaintiff had obtained the complaint (Evidence No. 3), the withdrawal from the lawsuit (Evidence No. 4), and the preparatory documents (Evidence No. 6) around the end of 2013, and according to the evidence No. 2 and evidence No. 13, it is acknowledged that Defendant Jeong had completed the registration of ownership transfer of this case around the end of 2013, and that Jung had paid a fine for negligence on December 23, 2013 due to the failure to report real estate transactions (Evidence No. 4 and 6, and No. 11). However, considering the following circumstances, it is difficult to view that the Plaintiff had obtained the real estate property registration of this case at the time of the Plaintiff’s request for property division of this case at the time of the Plaintiff’s request for property division of this case, the Plaintiff’s fraudulent act alleged by the Plaintiff only donated the real property of this case or equivalent property to the value of the Plaintiff’s claim for property division of this case to the Defendant Jeong at the time of 1’s request for property division of this case.

B. Judgment on the merits

1) The parties' assertion

2) The sales amount was KRW 36,000,000, and for this reason, Defendant A paid a fine for negligence.

A) Plaintiff

The instant real estate is subject to the division of property between ParkCC and Defendant KimB. On the basis of the instant agreement, ParkCC demanded that the instant real estate be reverted to Defendant KimB immediately complete the registration of ownership transfer in its own name without completing the registration of ownership transfer under its own name. This ought to be deemed to have been donated the instant real estate or equivalent property to the instant real estate to Defendant JeongA. However, since ParkCC had been in excess of the time’s debt, and Defendant Jeong also had been well aware of the financial status of Park Young-CC, donation pursuant to the instant agreement constitutes a fraudulent act against the creditors of Park Jong-A. Accordingly, the Plaintiff revoked the said gift act against Defendant Jung-A, a beneficiary, and cancelled the right to collateral security established on the instant real estate after acquiring the ownership of the instant real estate, and thus, it should be deemed that the value of the instant real estate at the time of fraudulent act is equivalent to KRW 396,150,000, KRW 10000, KRW 15000, KRW 10000, KRW 1000.

B) Defendant UAA

ParkCC was not the owner of the instant real property, and there was no authority to take any measure against it, and thus, the Plaintiff’s donation of ParkCC’s property to Defendant Jung-A as a fraudulent act does not exist. Moreover, it cannot be deemed that ParkCC did not dispose of its own property by the instant agreement. Furthermore, Defendant Jung-A was unaware of the fact that ParkCC was in excess of its liability due to its failure to pay national taxes over KRW 00 million at the time of the instant agreement.

2) Determination

A) Whether a fraudulent act was established

Therefore, as seen earlier, the agreement of this case is about whether ParkCC disposed of its own responsible property to the defendant Jeong due to the agreement of this case, and as seen earlier, the agreement of this case is about the secured debt of the right to collateral established in the real estate of this case, and at the same time, the defendant KimB delivered documents necessary for the registration of the transfer of ownership of this case to the defendant Park Jong-B, and the settlement of disputes, such as this case's property division lawsuit between Park Jung-B and the defendant KimB. In full view of the contents of the agreement of this case and its conclusion, the agreement of this case is about the division of property between Park Jung-B and the defendant KimB, which were paid a certain amount of money and transferred the ownership of this case's real estate to Park Jung-B, and since the agreement of this case is about the division of property between the defendant Park Jong-B and the defendant KimB, which had no special relation with the above real estate property division agreement, the defendant Park Jong-B, which was about the property division registration of this case's property, shall be paid to the plaintiff 500 million.

3) The Plaintiff considered it as a donation and sought revocation of fraudulent act. Defendant Jeong contributed only a total of KRW 110,00,000 to acquire the instant real estate in excess of the market price of KRW 300,000 at the time, and there may be room to deem that there was a gift of the remaining property equivalent to the difference. However, on the other hand, it may be deemed that ParkCC sold the right to the instant real estate in KRW 110,00,000, more than the market price.

The defendant Jeong-A's bad faith is also presumed to be the next.

As to the above, although the defendant Jeong argued that he did not know about the excess of his obligation at the time of the agreement in this case, the evidence submitted by the defendant Jeong alone is insufficient to accept it, and there is no evidence to accept it, and therefore, the above assertion by the defendant Jung-A is without merit.

(B) the method and scope of restitution;

In the event a legal act regarding real estate constitutes a fraudulent act, the court is in principle to revoke the fraudulent act and order the restoration of the real estate itself, such as the cancellation of the registration of ownership transfer. However, in the event of a fraudulent act with respect to real estate on which the right to collateral security is established, such fraudulent act is established only within the extent of the balance remaining after deducting the secured debt amount from the value of the real estate. If the court revokes the fraudulent act and issues an order to recover the real estate itself at the time of cancellation of the registration of ownership transfer due to repayment, etc. after the fraudulent act, etc., the court orders the recovery of the portion that was not the initial general creditors’ joint security. Accordingly, in such a case, the court must order the revocation of the fraudulent act within the extent of the balance remaining after deducting the secured debt amount of the real estate at the time of the conclusion of the arguments in the fact-finding court

In this case, if the disposition of this case is revoked, the right to claim the ownership transfer registration of the real estate of this case shall be returned to ParkCC. However, as seen earlier, Defendant Jeong has already completed the ownership transfer registration in its own name based on the right to claim the ownership transfer registration acquired by the disposition of this case, and immediately thereafter repayment and cancellation of the secured debt of the right to collateral security established on the real estate of this case. As such, the Plaintiff may seek compensation for damages equivalent to the value of the right to claim the ownership transfer registration on the real estate of this case, which is a bond in lieu of the original return.

Furthermore, according to the evidence No. 8 as to the scope of compensation for value, the market price of the instant real estate (the value of the right to claim ownership transfer registration of the instant real estate) around June 2013, which was around the time of fraudulent act, is recognized to have been 396,150,000, and the value of the right to claim ownership transfer registration of the instant real estate at the time of the closing of argument in the instant case is confirmed to be identical to the market price of the instant real estate. Accordingly, the amount to be returned is KRW 50,150,000 paid to KimB from the amount of the right to claim ownership transfer registration of the instant real estate at the time of the closing of argument in the instant case (396,150,000) and the amount of the secured debt of the right to claim ownership transfer registration of the instant real estate, which was 60,000,000 won deducted.

3) Sub-decisions

Therefore, the agreement concluded on June 24, 2012 between ParkCC and Defendant AA on June 24, 2013 is revoked within the limit of KRW 286,150,000 (the Plaintiff claims to revoke the agreement on June 24, 2013; however, the Plaintiff’s claim that exceeds the scope of the value to be refunded is rejected);

Defendant Jeong-A is obligated to pay to the Plaintiff 286,150,000 won and damages for delay at the rate of 5% per annum from the day following the day this judgment becomes final and conclusive to the day of full payment.

4. Conclusion

If so, the plaintiff's claim against defendant KimB and his primary claim against defendant KimB

The plaintiff's conjunctive claim against defendant Jeong-A is all dismissed. The plaintiff's conjunctive claim against defendant Jeong-A is within the scope of the recognition.

For reasons, the remainder of the conjunctive claim shall be accepted, and it shall be dismissed as it is without merit:

It is so decided as per Disposition.