Revocation of Fraudulent Act

Where the State exercises its right of revocation by making a claim preserved for a taxation claim the State has a right of revocation, it is reasonable to deem that a tax official in charge of the business of collecting and preserving a taxation claim knew of the debtor's intention to understand such fact at the time when he

Article 30 of the National Tax Collection Act (Cancellation of Fraudulent Act)

Article 406 of the Civil Code / [Right of Revocation]

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The contract of donation concluded on April 19, 2002 between the defendant and the non-party Kim ○ shall be revoked within the limit of KRW 175,964,220. The defendant Yoon○ shall pay to the plaintiff 175,964,220 with 5% interest per annum from the day following the day this decision became final to the day of complete payment.

2. Purport of appeal

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

1. Basic facts

The following facts may be acknowledged in full view of the following facts: Gap evidence 1-1 through 8, Gap evidence 3, 4-1, 5-2, Gap evidence 5-1, 6-2, Gap evidence 7-1, 7-2, Gap evidence 11-1, 2, 3, Gap evidence 12-1 through 7, Gap evidence 13-1 through 9, Eul evidence 14-1, Eul evidence 14-2, 2, 3, 6, 7-4, Eul evidence 13-4, and Eul evidence 13-1 to 14-4, Eul evidence 1, 2, 3, 6, 7, and Eul evidence 13-4, and the whole purport of the oral argument at the court of first instance Kim ○ (excluding the part which is not trusted later).

(1) With respect to the value-added tax on the non-party 1, 2, 203 (hereinafter referred to as "non-party 1 claim for value-added tax for 2,74,040") on January 31, 200; 2, 30,750 won (hereinafter referred to as "non-party 1 claim for value-added tax for 2,000"); 3,40,750 won (hereinafter referred to as "non-party 1 claim for value-added tax"); 2,400 won for the amount of value-added tax for 2,00 won for the amount of value-added tax for 2,00 won for 3,00 won for the amount of value-added tax for 2,00 won for 3,00 won for the amount of value-added tax for 2,379,080 won for each of 2,000 won for the amount of value-added tax (hereinafter referred to as "value-added tax claim for 2, 3, 94, 19, 193.

B. On the other hand, on April 19, 2002, Kim○-○ concluded a donation contract with the Defendant, the only property indicated in the separate sheet (hereinafter “instant real estate”) as the only property between the Defendant, his wife, and completed the registration of ownership transfer under the Defendant’s name as the receipt No. 23424 on the ground of this contract.

C. With respect to the instant real estate, the Seoul Central District Court concluded on March 19, 199 with the registry office of 290,00,000 won, the maximum debt amount of 290,000,000 won, the debtor Kim○○○ and ○○○ Bank Co., Ltd. (hereinafter “○○○○○○ Bank”) as the registry office’s registration of creation of a mortgage (hereinafter “registration of the first collateral security”) and 39,00,000,000 won as the maximum debt amount of 30,000,000 won, the debtor Kim○○ and ○○○○ Bank as the secured debt amount of 205,000,000 won, respectively, and concluded on April 22, 2002 with the registry office of 205,000,000 won and 30,000,000 won, 205,000 won, 205,07,006.

D. On June 1, 2005, Kim ○ paid KRW 328,700 and additional 16,340,000, totaling KRW 345,130.

2. Determination on this safety defense

A. As the lawsuit in this case, the contract of this case between Kim ○ and the defendant was made for the purpose of undermining the plaintiff, who is a tax claim holder, and thus, the right of revocation was revoked, and as such, the defendant asserts that he sought compensation for the equivalent value of the tax claim in lieu of the cancellation of the ownership transfer registration, the defendant asserted that the lawsuit in this case was unlawful since the plaintiff filed the lawsuit in this case only on February 27, 2004, even though he knew of the donation between Kim ○ and the defendant around April 19, 2002, even though he knew of the fact that the gift in this case was made on or around February 19, 20

B. Determination

The lawsuit for revocation of fraudulent act stipulated in Article 30 of the National Tax Collection Act is a kind of lawsuit at least for fraudulent act as stipulated in Article 406 of the Civil Act. Since there is no special provision that provides otherwise in its exercise, it shall be filed within the period for filing a lawsuit under Article 406 (2) of the Civil Act (see, e.g., Supreme Court Decisions 2000Da28001, Oct. 13, 2000; 91Da14079, Nov. 8, 1991). Meanwhile, "the date when the obligee becomes aware of the cause for revocation" in the exercise of the right of revocation refers to the date when the obligee becomes aware of the fact that the obligor committed a fraudulent act while knowing that the obligee would prejudice the obligee, namely, it is insufficient to say that the obligor’s act of disposal of the property is prejudicial to the obligee, i.e., the act detrimental to the obligee, i., the lack of the obligor’s intent to preserve the claim within 1300 years.

On April 19, 2002, the Plaintiff entered into a donation contract with the Defendant with respect to the instant real estate, which is the only property of the Plaintiff on April 19, 2002, and completed the registration of ownership transfer under the name of the Defendant on the ground of such contract. However, such circumstance alone is insufficient to readily conclude that the Plaintiff was aware of the said donation on the registration date, and there is no other evidence to acknowledge it. In full view of the purport of the entire pleadings in the statement in subparagraph 3, the Plaintiff’s tax official’s computerized inquiry about the Plaintiff’s property, etc. on April 9, 2003, and it is only recognized that Kim○-○ was aware of the fact that the Plaintiff donated the instant real estate, and the Plaintiff filed the instant lawsuit on February 27, 2004, which is within one year thereafter, and thus, the Defendant’s safety defense is without merit.

3. Determination on the revocation of fraudulent act and the claim for restitution

A. Formation of preserved claims

First of all, the value-added tax claim is established when the taxable period expires as prescribed by Articles 21(1) and 7 and 22(1) of the Framework Act on National Taxes, and Article 10-2 subparag. 1 and 2 of the Enforcement Decree of the Framework Act on National Taxes. According to Article 3(1) of the Enforcement Decree of the Framework Act on National Taxes, the taxable period of value-added tax is from January 1 to June 30 of the corresponding year. The second period is from July 1 to December 31 of the corresponding year. The global income tax claim is established when the taxable period expires pursuant to Article 21(1) subparag. 1 and 22(1) of the Framework Act on National Taxes, Article 10-2 subparag. 1 and 2 of the Enforcement Decree of the Framework Act on National Taxes, and all of the claims asserted by the Plaintiff as preserved claims are established for global income for 20 years from January 1 of the corresponding year to December 31, 199; 20 years from the end of the pertinent taxable period for 20 years from the end of 10.

B. Scope of preserved claims

The amount of tax belonging to the scope of the above preserved bond 181,694,070 won (7,74,040 won + 3,825,240 won) + (19,379,080 won + 9,107,850 won + (240,750 won + 12,030 won) + (10,487,160 + 4,802,910 won) + (40,512,130 won + 18,54,360 won + (45,90 won + 21,05,430 won) + (00 won) + (10,487,160 won + 4,802,910 won) + (45,973,090 won + 21,05,430 won) + (00 won)).

(1) Since additional dues and aggravated additional dues for 7,744,040 won and additional dues for the principal tax of the principal tax on the claim of value-added tax for the second period of two years 2000 [the amount prior to the amendment by Act No. 7004, Dec. 30, 2003; hereinafter “former National Tax Collection Act”) are 387,200 won (7,74,040 won) and additional dues for the amount equivalent to 5/100 of the national tax in arrears from the expiration of January 31, 203, which is the due date for payment pursuant to the main sentence of Article 21 of the former National Tax Collection Act (amended by Act No. 7004, Dec. 30; hereinafter the same shall apply] ＋ the Plaintiff’s claim for additional dues for the amount of 30/100 of the total income in arrears until the expiration of 30/300,000 won which is the due date for payment pursuant to Article 221 of the former National Tax Collection Act];

(2) The additional dues and aggravated additional dues for 19,379,080 won for the principal tax on the claim 2 of value-added tax for 2000 and the additional dues and aggravated additional dues for 9,107,850 won [the additional dues equivalent to 5/100 of the national taxes in arrears from the expiration of March 31, 2003, which is the payment time limit under the main sentence of Article 21 of the former National Tax Collection Act (19,379,080 won) + The additional dues for 968,950 won (19,379,080 won) for 5/100 of the national taxes in arrears (19,379,080 won) + The additional dues for 19,379,080 won for each month from May 1, 2003 to March 31, 2006 to the increased additional dues equivalent to 12/100 of the national taxes in arrears]

(3) The principal tax amount of value-added tax claim No. 1 for the year 2000 and the additional tax amount of KRW 12,030 for this amount [2,030 (240,750 won and X.05) equivalent to 5/100 of the national tax in arrears from the expiration of March 31, 2003, which was due date under the main sentence of Article 21 of the former National Tax Collection Act + the additional tax of KRW 12,030 (240,750,05) + Since the national tax in arrears under Article 22(2) of the former National Tax Collection Act is below KRW 50,000,00

(4) The additional dues and aggravated additional dues for 10,487,160 won of the principal tax on value-added tax claim for the second period of 1999 and additional dues for 4,802,910 won [5/100 of the additional dues equivalent to 5/100 of the national taxes in arrears (10,487,160 won) from the expiration of April 30, 2003 under the main sentence of Article 21 of the former National Tax Collection Act] + 524,350 won (10,487,160.05) + one month after the expiration of April 30, 2003, which is due date under Article 22(1) of the former National Tax Collection Act, sought by the Plaintiff from June 1, 2003 to March 31, 2006, increased additional dues equivalent to 12/100 of the national taxes in arrears until March 31, 2006]

(5) The additional dues and aggravated additional dues 18,554,360 won for the principal tax on value-added tax claim for 1 January 2001 [2,025,130 won (40,512,130 won) equivalent to 5/100 of the national taxes in arrears from the expiration of April 30, 2003, which is the due date under the main sentence of Article 21 of the former National Tax Collection Act] + The additional dues 2,025,60 won (40,512,130.05) £« the one month after the expiration of April 30, 2003, which is the due date under Article 22(1) of the former National Tax Collection Act, sought by the Plaintiff from June 1, 2003 to March 31, 2006, increased additional dues equivalent to 1216,528,7604 won (1304,4105 won)]

(6) Additional dues and aggravated additional dues of KRW 21,05,430 [2,298,650 (45,973,090,090) equivalent to 5/100 of the national taxes in arrears from the expiration of April 30, 2003, which was the due date under the main sentence of Article 21 of the former National Tax Collection Act] + Amounting to KRW 2,298,650 (45,973,090,000) + one month after the expiration of April 30, 2003, which was due date under Article 22(1) of the former National Tax Collection Act, from June 1, 2003 to March 31, 206, which was sought by the Plaintiff; and

(7) Value-added tax claim 2 for the second period of February 2001 0 won, additional dues and increased additional dues for this.

(8) Value-added tax for the second period of February 2000, the principal tax for the second period of value-added tax claim 0 won, additional dues and increased additional dues for this.

(9) The principal tax of the global income tax claim in 2001 0 won, additional dues and increased additional dues

C. Establishment of fraudulent act

As seen earlier, the act of making a donation to the Defendant, the sole real estate of this case, which is the real estate of this case by Kim ○○, a tax liability of 180,000,000 won or more to the Plaintiff, constitutes a fraudulent act in relation to other creditors, barring any special circumstance, as it brings about the reduction of the creditors’ joint security. Unless this donation contract constitutes a fraudulent act, the Defendant, the beneficiary, is presumed to have been malicious, as long as this donation

D. Judgment on the defendant's assertion

The defendant raised to the effect that from April 2002, since Kim ○ and the de facto distress situation, Kim ○ did not know the fact that various taxes of this case were in arrears, and that the defendant received consolation money and division of property on divorce from Kim ○○ while divorced with Kim ○○, and thus, he did not have any intention to harm the defendant. However, the defendant's assertion that Eul's testimony as stated in Nos. 15 and 16 and part of the witness Kim ○ at the trial court's trial witness Kim ○ was not trusted, and there is no other evidence to acknowledge it ( even according to the testimony of the witness Kim ○, the defendant and Kim ○ did not have any agreement yet) is groundless.

(e) Scope of revocation of fraudulent act and methods of reinstatement;

(1) In a case where a legal act on real estate constitutes a fraudulent act, in principle, cancellation of the fraudulent act and cancellation of the registration of transfer of ownership, etc. However, in a case where a fraudulent act was committed with respect to real estate on which a mortgage is established, such fraudulent act shall be established only within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate. Therefore, in a case where a registration of creation of a mortgage was cancelled by repayment, etc. after a fraudulent act, ordering cancellation of a fraudulent act and restoration of the real estate itself would result in a violation of the fairness and fairness because ordering the restoration of the portion which was not initially constituted a joint security of the general creditors. Accordingly, an order for compensation for the value of the real estate can only be sought, and such calculation shall be based on the date of the conclusion of the arguments at the trial court (see, e.g., Supreme Court Decision 2001Da337

(2) 살피건대, 갑 제24호증의 1, 2, 갑 제25호증, 을 제6, 7호증의 각 기재에 변론 전체의 취지를 종합하면, 이 사건 사해행위일 무렵인 2002. 4. 12. 당시 감정평가사 김○○에 의한 이 사건 부동산의 감정가액은 금 352,893,600원인 사실, 당심 변론종결일에 가까운 2006. 3. 15.을 기준으로 할 때 이 사건 부동산 중 별지 목록 제1, 2항 기재 대지의 개별공시지가는 ｍ²당 3,690,000원으로 별지 목록 제1항 기재 대지의 공시지가는 414,756,000원(112.4 X 3,690,000원), 별지 목록 제2항 기재 대지의 공시지가는 50,184,000원(13.6 X 3,690,000원)이며, 별지 목록 제3항 기재 건물의 기준시가는 ｍ²당 126,000원으로 그 기준시가 합계액은 48,484,800원(384.8 X 126,000원)으로 이 사건 부동산의 공시지가와 기준시가로 평가한 금액합계가 513,424,800원인 사실을 인정할 수 있고, 반증이 없는 바, 김○○에 의한 감정평가금액이 당심 변론종결일로부터 약 4년 전에 감정평가된 금액인데 반하여 위 공시지가 및 기준시가는 당심 변론종결일 직전을 기준 시점으로 결정된 가액인 점, 부동산에 관한 공시지가나 기준시가가 통상 시가보다는 낮은 금액인 점 등을 고려할 때 피고가 배상하여야 할 가액의 기준이 되는 이 사건 부동산의 가액은 위 공시지가 및 기준시가로 환산한 513,424,800원으로 봄이 상당하다 할 것이다.

Furthermore, prior to the instant donation contract, the establishment of a mortgage on the instant real estate was completed under the name of ○○ Bank, and the Defendant repaid the amount of KRW 255,80,819 on April 22, 2002, which was after the instant contract was concluded, with respect to the instant real estate, and cancelled the registration of the instant first and second collateral mortgage on April 2, 2002. As seen earlier, since the instant fraudulent act was established prior to the instant fraudulent act, the instant fraudulent act is only established within the legal framework of the balance calculated by deducting the amount of the secured debt of 1 and second collateral security from the value of the instant real estate. Ultimately, the scope of the instant fraudulent act is limited to 257,623,981 (513,424,80 won - 25,805,819 won, which was the Plaintiff’s creditor, and within the scope of KRW 1060,819,00,000,000).

4. Conclusion

Therefore, the contract of donation concluded on April 19, 202 between Kim ○○ and the defendant with respect to the real estate of this case shall be revoked within the limit of 175,964,220 won as requested by the plaintiff in accordance with the plaintiff's purport of claim, and the defendant is obligated to pay to the plaintiff losses for delay calculated at the rate of 5% per annum as stipulated by the Civil Act from the day following the day when the judgment became final and conclusive to the day when the judgment is fully paid. Thus, the plaintiff's claim against the defendant of this case against the defendant of this case shall be accepted as reasonable. The judgment of the first instance court which partially different conclusions are unfair, but the judgment of the court of first instance cannot be changed to the defendant's disadvantage in the case of this case where only the defendant appealed, and thus the defendant's appeal is dismissed. It is so decided