Revocation of Fraudulent Act

Since the transfer of this case is a single fraudulent act as a whole, it is reasonable to determine whether the said transfer is insolvent of 00 related to each of the above transfers, as of September 25, 2017, which was completed a series of fraudulent acts.

2018 Doz. 409274 Revocation of Fraudulent Act

Korea

Kim 00

April 2, 2019

April 11, 2019

1. To revoke a contract of KRW 00,000,000 entered into on August 25, 2017 between the Defendant and Park 00; a contract of KRW 00,000,000 entered into on August 26, 2017; and a contract of KRW 00,000,000 entered into on September 25, 2017, respectively.

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

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

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

(a) Sale of real estate at 00;

Park 00 entered into a sales contract to sell 0,00,000 dong and 00-00 dong and 000-00 building in Seoul (hereinafter referred to as "the real estate in this case") to August 24, 2017, and entered into a sales contract to sell 0,000,000,000 won from Kim 00,000 after deducting the deposit money, the collateral collateral mortgage cancellation, and other expenses related to the real estate in this case from the purchase price, among the purchase price of KRW 00,000,000,000 from August 24, 2017; and the intermediate payment of KRW 00,000,000 from August 25, 2017; and the remainder of KRW 00,000,000 on September 25, 2017; and the registration of ownership transfer to the real estate in this case was completed on September 20, 2017.

(b) Transfer to the defendant by Park 00;

Park 00 remitted total of KRW 000,000,000 on August 25, 2017 with the Defendant’s 00 bank accounts (number: 000,000), KRW 00,000 on August 26, 2017, and KRW 000,000 on September 25, 2017, including KRW 00,000,000 (hereinafter “the remittance”).

C. Plaintiff’s transfer income tax claim

Park 00 did not pay capital gains tax after the transfer of the instant real estate, and the head of the tax office, on January 10, 2018, determined capital gains tax amount as KRW 00,000,000, and notified 00 to the Park Dob, which was around January 31, 2018, around November 2018, around the time of filing the instant lawsuit, the amount of arrears at Park 00,000, including the said capital gains tax and the said additional charges, reaches KRW 00,000,000 (hereinafter referred to as “tax in arrears”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 8 (including a provisional number; hereinafter the same shall apply), the purport of the whole pleadings

2. The assertion and judgment

A. Whether the remittance of this case was fraudulent

1) Formation of preserved claims

A) Relevant legal principles

Even if the preserved claim for exercising the right of revocation did not have yet occurred at the time of the fraudulent act, the legal relationship was already established, and if there was a high probability that the preserved claim will be realized in the near future, in view of the situation at the time of the fraudulent act, it may be deemed as the preserved claim even if the claim was finally embodied and established (see Supreme Court Decision 2013Da213861, Jan. 29, 2014).

B) Determination

According to the above facts, the instant remittance was made from August 25, 2017 to September 25, 2017, and the real estate sales contract of this case, which serves as the basis for establishing the Plaintiff’s taxation claim, was established on August 24, 2017. As such, there was a high probability of the Plaintiff’s establishment of the taxation claim at the time of the instant transfer, and that the taxation claim was created by determining the determined amount of tax arising from the instant real estate sale and purchase as KRW 00,000 to KRW 00, and the said fact was actually established. Accordingly, the Plaintiff’s taxation claim can be the preserved claim of the obligee’s right of revocation.

2) Park 00's fraudulent act

A) in excess of 00 obligations and the transfer of this case

(1) Relevant legal principles

In case where a debtor continuously disposes of several properties, in principle, it shall be judged whether each act causes insolvency. However, when there are special circumstances to regard the series of acts as a single act, it shall be determined as a whole. In this case, in determining whether there is such special circumstances, the other party to the disposition is the same, whether each disposition is close to time, whether the other party to the disposition has special relations with the debtor, and whether the motive or opportunity of each disposition is identical (see Supreme Court Decision 2005Da7795, Jul. 22, 2005).

(2) Determination

First of all, we examine the criteria for determining the fraudulent act of the remittance of this case. In full view of the following circumstances acknowledged by the aforementioned evidence, namely, the defendant and Park Park 00 were the mother and child-related persons, and Park 00 was continuously connected with the payment of the real estate of this case, such as the transfer of part of the purchase price from Kim 00 on or after the day when the real estate purchase price was received from Kim 1-2 or after the day when the payment of the purchase price was received, and thus, it is reasonable to view that the remittance to the defendant constitutes a donation, and that there are special circumstances to regard the series of acts as a single act, each of the above transfers to the defendant must be determined as a whole.

Next, we examine the insolvent of 00. As seen earlier, since the instant remittance was a single fraudulent act as a whole, it is reasonable to determine whether the said remittance is insolvent of 00 related to each of the above transfers as of September 25, 2017, when a series of fraudulent acts has been completed. However, if the entire purport of the pleadings is added to the evidence and evidence Nos. 2, 3, 8, and 9, then the active and negative properties of 00 around September 25, 2017 are as follows. Therefore, it is recognized that 00 won was in excess of the debt at the time of the completion of the instant remittance, and, according to the instant remittance, donation of KRW 00,000, out of the purchase price of the real estate in question, may be deemed as a result of the reduction of the general creditors’ joint security against 00 or that it constitutes an objective fraudulent act.

B) Determination on the Defendant’s assertion

The Defendant, on August 25, 2017 and August 26, 2017, lent money from KRW 00,000 to Park 00,000, out of the money received from Park 00 on August 25, 2017, again, and claimed that the instant remittance is a legitimate repayment for Park 00 to Park 00, and is not a donation.

However, each statement in Eul evidence Nos. 1 through 15 alone was in a monetary lending relationship between 00 and the defendant, and there is insufficient evidence to acknowledge the fact that the remittance of this case was repaid, and there is no other evidence to acknowledge it. Even if the relationship between 00 and the defendant is acknowledged, in case where the debtor, in collusion with some of his creditors, made a repayment with the intent to harm other creditors, the act of performance is also a fraudulent act (see, e.g., Supreme Court Decision 2003Da1205, Jun. 24, 2003). Considering the various circumstances revealed in the argument of this case, such as the above 00 and the defendant's relationship, the time of remitting the real estate purchase price of this case, the date of remitting the money transfer of this case, and the existence of other debts of 00, etc., it can be deemed that the defendant made a repayment with the intent to harm other creditors including the plaintiff in collusion with the defendant.

3) The intention of gambling00 and the defendant's bad faith

As seen earlier, insofar as the remittance of this case is objectively deemed as a gift and constitutes a fraudulent act, it is presumed that the Defendant’s intent to commit suicide and the Defendant’s bad faith as a beneficiary is presumed, and it is also insufficient to reverse the evidence alone by the Defendant.

4) Sub-committee

Ultimately, as long as the remittance of this case is a gift and constitutes a fraudulent act, the Plaintiff, a creditor, can seek its revocation.

(b) Methods and scope of cancellation and reinstatement;

According to the above evidence, since the amount of remittance of this case exceeds the above amount of delinquent tax of this case, which is the plaintiff's preserved claim, the whole amount of the above donations shall be revoked and recovered. Therefore, the remittance of this case, which is a donation contract concluded between Park 00 and the defendant, shall be revoked as a fraudulent act, and the defendant shall be obliged to pay to the plaintiff 1 the total amount of remittance of this case and damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day following the day when the judgment became final to the day when the above decision is fully repaid.

3. Conclusion

Thus, the plaintiff's claim of this case is accepted on the ground of the reasons.