No claim that was incurred after the fraudulent act may be considered as a preserved claim in a lawsuit seeking revocation of the fraudulent act.

In principle, a claim that can be protected by the obligee’s right of revocation is derived before an act that can be viewed as a fraudulent act was conducted. The instant taxation claim cannot be considered as a preserved claim in a lawsuit seeking revocation of a fraudulent act, which is a claim arising after the gift contract alleged as a fraudulent act.

Article 30 of the National Tax Collection Act

2011Chap 20167 Revocation of Fraudulent Act

Korea

ParkA et al.

October 18, 2012

November 8, 2012

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Along with respect to the real estate listed in the separate sheet No. 1, the contract for the gift concluded on March 20, 2007 between the defendant Park Jong-B and the KimB, and the defendant Park Jong-B implemented the procedure for cancellation of ownership transfer registration that was completed on May 22, 2007 by the Busan District Court of Busan, Busan, Busan, and the registration office of the ownership transfer that was completed on May 22, 2007. The contract for the gift concluded on March 20, 2007 between the defendant KimCC and KimB was canceled, and the defendant KimCC fulfilled the procedure for cancellation of ownership transfer registration that was completed on May 22, 2007 to the Busan District Court of Busan, Northern District Court of Justice No. 28834, receipt on May 22, 2007, and the registration office of the Chang-won District Court of Justice No. 27136 and No. 27137, Dec. 7, 2007.

1. Basic facts

A. Defendant ParkB is the wife of KimB, Defendant KimCC is the son of KimB, and Defendant KimCC is the son of KimB, and KimCC is the only heir of the network KimB (Death of April 11, 2007).

B. On May 22, 2007, Defendant Park Young-B completed the registration of ownership transfer for the real estate listed in the separate sheet 1 (hereinafter referred to as “real estate 1”) as the gift on March 20, 2007, which was owned by the deceased KimB. Defendant KimCC received the registration of ownership transfer for each of the real estate listed in the separate sheet 2 through 5 (hereinafter referred to as “the real estate 2 to 5”) from the Busan District Court's Northern District Court's 28834 on May 22, 2007, and the registration of ownership transfer was completed for the gift on February 10, 1994, and for each of the real estate listed in the separate sheet 6 (hereinafter referred to as “the real estate 6 real estate”) as the registration office's receipt on March 27, 2007 with respect to each of the real estate 2 to 37, 2007.

C. On June 20, 2007, after the death of KimB, Kim Jong-B reported the voluntary payment tax amount of KRW 000,000 on the gift of the first through fifth real estate in the name of the deceased KimB, and the director of the tax office affiliated with the Plaintiff reported the tax base of capital gains tax on the gift of the first through fifth real estate in the instant case, and on October 10, 2007, the director of the tax office affiliated with the Plaintiff issued a disposition to collect capital gains tax of KRW 00,000 on October 31, 2007 to the deceased KimB who did not pay the said voluntary payment amount.

[Reasons for Recognition] The non-satched Facts, Gap evidence 1, 2, 3, and 5 evidence 1 to 7, 17, and 21, and the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The defendants' defense

On June 20, 2007, the Plaintiff was aware of the existence of the gift agreement on each of the instant real estate between the deceased KimB, a fraudulent act, and the Defendants at the time of the return of transfer income tax, and it is reasonable to deem that the Plaintiff was aware of the intention of the year to harm the Plaintiff to the deceased KimB on May 3, 2010, which was designated as a joint and several tax obligor because he did not pay the transfer income tax reported by the deceased KimB at the latest, and therefore, the lawsuit of this case filed on September 23, 2011, which was about one year thereafter, was filed after the exclusion period expires.

B. Determination

The date when the creditor, who is the starting point for the exclusion period of the plaintiff's right of revocation, becomes aware of the fraudulent act. This means the date when the debtor becomes aware of the fact that the debtor engaged in the fraudulent act despite the knowledge that the debtor engaged in the act of disposal of the property, and it is required to know the existence of specific fraudulent act, and further that the debtor had an intention to injure the debtor. (See, e.g., Supreme Court Decision 2007Da63102, Mar. 26, 2009) Kim 207, Kim Jong-B, which reported the tax base of transfer income of this case to the gift of this case 1 through 5, and that the plaintiff did not know of the fact that the plaintiff's act of disposal of the tax claim of this case 1, 207, 200, 3, 1, 2, 3, 1, 3, 48, 17, 1, 2, 2, 3, 1, 2017.

3. Determination as to the cause of action

A. The plaintiff's assertion

The Plaintiff had a tax claim of KRW 000,000 for the transfer income tax of KRW 2007 for the Plaintiff KimB, and on March 20, 2007 for the Defendants of the deceased KimB, the act of donation in excess of the obligation constitutes a fraudulent act, and the Defendants were aware of such facts. Accordingly, the instant donation contract should be revoked, and the Defendants are obliged to perform the registration of cancellation of ownership transfer registration for each of the instant real estate to the deceased KimB.

B. Determination

It is required that a claim that can be protected by the obligee’s right of revocation has arisen prior to the commission of an act that can be viewed as a fraudulent act in principle (see Supreme Court Decision 98Da56690, Apr. 27, 199). The preserved claim asserted by the Plaintiff is a tax claim of KRW 000 capital on the net KimB, and the above taxation claim is a tax claim of KRW 00 capital on the income acquired by the net KimB as a result of the above gift contract, and it is hard to say that the above taxation claim cannot be considered as a preserved claim in the lawsuit for revocation of the fraudulent act in this case, as a claim arising after the gift contract of this case alleged by the Plaintiff as a fraudulent act, the above taxation claim cannot be considered as a preserved claim in the lawsuit for revocation of the fraudulent act in this case, and there is no reason to further examine the plaintiff’s argument on this premise (see Supreme Court Decision 98Da56690, Mar. 20, 199).

4. Conclusion

Then, the claim of this case against the defendants of the plaintiff is without merit, and it is so decided as per Disposition.