Suwon District Court 2011 Gohap21191

Whether the act of transferring money to the account holder with excess of liability is subject to revocation of a fraudulent act as a donation.

Although the act of transferring money to the account holder with excess of debt is a donation and is subject to some revocation of fraudulent act, it cannot be recognized as a title trust of the deposit owner.

Article 5 of the National Tax Collection Act

202Na100830 Revocation of Fraudulent Act

Korea

Is 00

2011 Gohap21191

April 17, 2014

May 15, 2014

1.The judgment of the first instance shall be modified as follows:

A. The contract of donation of KRW 00 shall be revoked between the defendant and the DamageA during the period from February 20, 2008 to August 22, 2009.

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

C. The plaintiff's remaining main claims and additional conjunctive claims are dismissed, respectively.

2. The total costs of the lawsuit shall be five minutes, and such three minutes shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

(1) The judgment of the court of first instance shall be revoked. (1) The judgment of the court of first instance entered into between the defendant and the grandchildren on February 20, 2008.

From February 23, 2008 to December 23, 2008, ② 00 won on July 15, 2008, ③ 000 won on August 13, 2008, ④ 000 won on September 10, 2008, ⑤ 5000 won on August 22, 2009, respectively, shall be revoked. Preliminaryly, the contract on title trust of the deposit owner concluded between the Defendant and SohA on each date described in the above (Account Number 00) shall be revoked within the limit of 00 won on the deposit account account (the Plaintiff added a preliminary claim at the trial) and the amount calculated by the rate of 5% per annum from the next day of this judgment to the date of full payment (the Plaintiff added a preliminary claim at the trial).

1. Basic facts

A. The Plaintiff’s establishment of a taxation claim against the Plaintiff’s grandchildren

1) The grandchildren did not report the value-added tax and the comprehensive income tax while carrying on the financial business from March 2005 to March 2000.

2) The director of the tax office under the Plaintiff-affiliated 00 of the tax office, around October 2010, notified the grandchildren to pay the unreported value-added tax and the comprehensive income tax as indicated in the table 1 below with respect to the above business, but the failure of the grandchildren to pay it was in arrears with the total of KRW 000 and the additional 000 of the principal tax as of October 201.

In the corporate bank account (00) in its name, the DamageA remitted the sum of KRW 000,000,000 in total, from February 20 to February 23, 2008, to February 15, 2008, the amount of KRW 200,300 on August 13, 2008, and ④ KRW 000 on September 10, 2008, and ⑤ August 22, 2009 to August 22, 2009 (hereinafter referred to as “each of the instant transfers”).

(c) The status of the property of the DamageA;

The DamageA had, at the time of each transfer of this case, active properties of the particulars as stated in Table 2 below, while it bears tax liability with respect to the plaintiff as set forth in Table 1 as small property, and the above amount of debt exceeded all even on the basis of the date and time of each transfer.

D. Divorce and the defendant's divorce

On the other hand, the DamageA and the defendant reported the divorce on July 26, 2010.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, Gap evidence 2-1 to 7, Gap evidence 3, and Gap

4, 5, 7 evidence, Eul evidence 4-1, 2-2, and the purport of the whole pleadings

2. Judgment as to the main claim

A. The plaintiff's assertion

The DamageA remitted the sum of KRW 000 to the account in the name of the defendant, who is the wife, in excess of the obligation, such as the burden of tax liability to the plaintiff. This constitutes a fraudulent act as a donation to the defendant. As such, the defendant is obliged to pay KRW 000 and the damages for delay to the plaintiff due to its restitution.

B. Whether there is a preserved claim

1) In principle, it is required that a claim protected by the obligee’s right of revocation was created prior to the commission of an act that can be viewed as a fraudulent act, but there was a legal relationship that has already been formed at the time of such fraudulent act, and there was a close legal relationship in the future.

A high probability exists as to the establishment of the right of revocation, and where a claim has been created due to the realization of the probability in the near future, the relevant claim may also become the preserved claim of the obligee’s right of revocation. This legal doctrine applies as it is to the taxation claim. Thus, in a case where a claim has been established specifically through a series of procedures in the near future where there was no specific taxation disposition at the time of a fraudulent act, and there was no basic legal relationship as to the occurrence of the taxation claim even though there was no specific taxation disposition, and where a claim has been established specifically through a series of procedures in the near future at a high probability of establishing a claim (see, e.g., Supreme Court Decisions 200Da37821, Mar. 23, 2001; 2006Da66753, Jun. 29, 2007).

In addition, according to Article 21 (1) 1 and 7 of the Framework Act on National Taxes, income tax and added-value.

The respective liability for tax payment shall not be the separate act of the tax authority or the taxpayer when the taxable period expires.

This is naturally constituted by law, and furthermore, Article 5 (1) of the Income Tax Act imposes income tax.

The period is from January 1 to December 31, and according to Article 5 (1) of the Value-Added Tax Act, the taxable period of value-added tax is from January 1 to June 30 in the case of the first period, and from July 1 to December 31 in the case of the second period.

2) Pursuant to the above legal principles, the Plaintiff’s respective tax claims on the Plaintiff’s grandchildren were established on the date of establishing each tax liability indicated in Table 1, as shown in the table 1. Among them, the Plaintiff’s respective tax claims on the Plaintiff’s grandchildren were established on the date of establishing each tax liability. Among them, the amount of value-added tax claims on the first year of 2008 shall be determined as follows: ① After the transfer transfer of this case, global income tax claims on the second year of 2008 and the second year of 2008, respectively, were established after the transfer of this case ④ but the above tax claims were established upon the commencement of the tax period in the near future, and each of the above tax claims was established upon the expiration of the near future period, each of the above tax claims claims may be the preserved claim of the obligee’s right of revocation in the tax claims in the above year of 2008. Furthermore, since the additional dues under Articles 21 and 222 of the National Tax Collection Act are the additional dues imposed on the unpaid portion by the due date for payment.

(c) The establishment of fraudulent act and the intention of deception;

(i) the existence of a gift agreement

If a debtor donated his/her own property to another person in excess of his/her obligation, such act would constitute a fraudulent act, barring special circumstances (see Supreme Court Decision 97Da57320, May 12, 1998). The debtor’s intent to commit an act is presumed also presumed (see Supreme Court Decision 200, Apr. 24, 2001).

200Da41875, see Supreme Court Decision 2000Da41875).In addition, if the debtor intends to establish a gift contract with respect to money remitted to another person's deposit account, it shall be interpreted that the debtor and another person agree to grant the money remitted as such to the third person by "donation" so that it can be ultimately reverted to another person, and the burden of proof for such transfer is the creditor who asserts that the above remittance act is a fraudulent act subject to creditor's right of revocation.

Meanwhile, in a case where a remittance is made by transferring money to another person’s deposit account, such remittance may be made based on a variety of legal causes. Thus, it cannot be readily concluded that there was an agreement between the remitter and the account holder that the remittance amount would have been granted to the account holder objectively, barring any special circumstance, on the sole basis that the person having a certain personal relationship consented or understood to transfer money to his/her own deposit account with the knowledge that he/she would transfer money to his/her own deposit account in order to avoid tracking the taxation authority, etc., or that he/she actually permitted to control his/her own deposit account for such purpose (see Supreme Court Decision 2012Da30861, Jul. 26, 2012).

In light of the above legal principles, as examined below, some of the amounts remitted to the account of this case was remitted again by the Defendant to the Defendant or to his designated person, and the fact that the amount for the use of card in the name of the Defendant and the amount for the use of family card in the name of the Defendant has been settled from the account of this case. In light of the circumstances surrounding the transfer circumstance or purpose of the DamageA, the purpose of the remittance, the use of the remitted money, the relationship between the Defendant and the Defendant, etc., if it is recognized that 00 did not temporarily keep the money to the Defendant, and if it can be recognized that 10 was returned to the Defendant or remitted the money under the settlement name such as the amount for the use of card, etc. used by the Defendant, it cannot be deemed that there was an agreement between the DamageA and the Defendant to grant the relevant money free of charge to the Defendant, within the extent of such recognized amount. hereinafter each item shall be examined.

2) The part of the money remitted to the account of this case which was returned

Written evidence No. 1 to 11, written evidence No. 27 and written evidence No. 27, all pleadings

In full view of the purport, the defendant's account in the name of the Corporation in the Account of this case

(00) On February 27, 2008, KRW 00 million, KRW 15 million on April 15, 2008, KRW 00 million on May 2, 2008, KRW 15 million on May 15, 2008, and KRW 10 million on May 27, 2008, and KRW 20 million on each of the above accounts under the name of the Defendant’s nominal holders is difficult to recognize the transfer of KRW 1 million on March 21, 200 to KRW 1 million on each of the above accounts (the above money from KRW 2 million on April 28, 2008, KRW 3 million on each of the above accounts under the name of the Defendant’s nominal holders, and KRW 2 million on each of the above accounts (the above money from KRW 8 million on April 28, 2008, to KRW 3 million on each of the above accounts under the name of the Defendant’s nominal holders).

3) The payment portion of card use payment

B Before oral pleadings are made in each entry of evidence 2-1 to 30, Eul evidence 3, Eul evidence 4-1 and 2

Comprehensively taking account of the purport of the body, the name of the defendant from January 2008 to August 2010 by the DamageA

Eth Bank Family Card used a total of 000 won as stated in the Schedule of Calculation in the separate sheet.

The above payment was paid from the account of this case, and the sum of the Samsung Card price in the name of the DamageA from January 2008 to August 2010, as stated in the above calculation statement.

It can be recognized that 00 won has been paid. The following circumstances can be recognized by comprehensively taking into account each of the evidence and evidence of Nos. 10 and 11 of the above evidence, and each of the above evidence and evidence of evidence of the defendant's name, i.e., that the defendant and the defendant are under duty to support each other as a husband and wife (Article 974 of the Civil Act), that the husband and wife jointly bears living expenses (Article 833 of the Civil Act), that the payment of insurance premiums, card payments, public charges, etc. from the account of this case, and that the use of Samsung Card in the name of the defendant's name was made in most of the daily expenses such as food expenses, liquor expenses, communication expenses, convenience stores, etc. In particular, in light of the fact that it appears that the defendant and his children were under duty to support each of the above acts in the name of the defendant's family bank in the name of the defendant, it is difficult to recognize that each of the above acts in the name of the defendant's family bank in the name of 000 won.

4) Determination on the assertion of division of property or cumulative child support and reimbursement of living expenses

On the other hand, the defendant's assertion that among the money received from the DamageA, the money transferred by the defendant to the DamageA or his designated person, excluding the money transferred by the defendant again to the DamageA or his/her designated person, was made by the intention of division of property, or was transferred under the pretext of payment of the child support or living expenses borne by the defendant up to

First of all, as a property division premised on divorce between the DamageA and the Defendant, the health care room for whether each remittance of this case was committed by agreement, and the following circumstances, which can be acknowledged by comprehensively taking account of the overall purport of the pleadings as to each of the aforementioned evidence, namely, each remittance of this case was made over the period from February 2008 to August 22, 2009, and on July 26, 2010, around 1 to 205 months after July 26, 2010. The agreement between the DamageA and the Defendant was reached between the DamageA and the Defendant on July 26, 2010, which was the date on which the agreement between the DamageA and the Defendant was reported by divorce. On the other hand, even if the property division of the Plaintiff did not exist in light of the fact that each of the remittance of this case was made by 10% of the Defendant’s joint property division and maintenance, it appears that the Defendant did not have any degree of contribution to each of the Defendant’s joint property division and maintenance.

It is difficult to see that the case became.

Next, as to whether each remittance of this case was made under the pretext of the payment of the child support and living expenses borne by the Defendant up to that time by the Defendant, No. 3

The following circumstances, which may be inferred by comprehensively taking account of the respective descriptions of No. 2-1 through 30, Eul evidence No. 3, Eul evidence No. 4-1, 2, Eul evidence No. 6-1, 2, and Eul evidence No. 11, and the overall purport of the pleadings, are deemed to have been used as an amount equivalent to the payment of living expenses, such as management expenses, communications fees, etc., since the marriage in 1988 by the DamageA and the defendant

Most of the living expenses are actually borne by the defendant until a single agreement is reached, and the defendant's hand.

The fact that the defendant and the grandchildren have been responsible for the education and fostering of 00, and the study in the United States since 2002

In full view of the fact that the defendant had been living, and most of the study expenses, living expenses, and staying expenses are assumed by the defendant, grandchildren during the money for each remittance of this case

and 00 shall include money remitted as a result of the performance of a duty to support living expenses and child support.

It is reasonable to view it.

Therefore, within the scope recognized as the performance of the obligation to support, even though each remittance of this case resulted in the reduction of the joint security of the DamageA against the general creditors of the DamageA, it shall not be subject to the creditor's right of revocation unless it is judged that there are special circumstances to regard the performance of the obligation to support as an act of disposal of property in violation of the intent of the obligation to support. Furthermore, the scope of the performance of the obligation to support as an act of disposal of property in violation of the obligation to support is examined as follows: (a) considering the above various circumstances, Gap evidence Nos. 9, 10, Eul evidence Nos. 12-1 and 2-1 and 2-2, the defendant continues to engage in economic activities after marriage; (b) although the agreement does not remain one of the active property of the DamageA at the time of establishment of the agreement, small assets reach KRW 000,000,000 for the defendant's real property and the defendant's real property, and (c) the status and extent of the defendant's living status of the children and the defendant's property.

5) Sub-committee

If so, the act of remitting each of the instant transfers within the limit of KRW 000,000,000, whichever is the Defendant

It is reasonable to see that such donation was made by the State, and that the State is in excess of its obligation, each of the instant shipments.

Between February 20, 2008 and August 22, 2009, the Defendant 000

Since the gift contract of this case was concluded with the terms that pay the original amount (hereinafter referred to as "the gift contract of this case"), the contract of this case is a fraudulent act detrimental to the plaintiff who is another creditor.

Each remittance of this case constitutes a donation (the entire remittance of this case cannot be deemed as a donation, and from February 20, 2008 to August 2009.

22. To specify that an act of remittance is a donation contract by making transfers several times;

In addition, in light of the background and timing of each of the instant transfers, the size of remittance, and the personal relationship between the DamageA and the Defendant, it is inevitable to deem that the Plaintiff would be harmed by the conclusion of the instant donation contract, and the Defendant, a beneficiary, is presumed to have been maliciously committed.

D. Determination as to the defendant's bona fide defense

As to this, the defendant argued to the effect that he was a bona fide beneficiary since he did not know about the state of his property since he was living abroad with 00 million won at the time of each remittance of this case. However, as seen above, the defendant and sona were married on April 28, 198 and divorced on July 26, 2010, and it seems that he was aware of the economic situation of the defendant, such as using his family card, etc. together with his family card, and obtaining approval from the account of this case. Although the defendant did not receive almost living expenses, it is difficult to recognize that the defendant received large amounts of money of 0 million won from 2008 to 209 from 209, and that the defendant had no other evidence to acknowledge that it was transferred from 205 to 300 years since 200.

(e) Cancellation and reinstatement;

The contract on donation of KRW 000 between the defendant and the DamageA between February 2008 and August 22, 2009 constitutes a fraudulent act, and thus the contract is revoked, and the original state shall be restored to its original state, and the defendant shall be obligated to refund to the plaintiff the amount of KRW 00 and the damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day following the day this judgment becomes final and conclusive to the day of full payment.

3. Judgment on the conjunctive claim

Since the defendant's preliminary claim contains a claim seeking determination of the preliminary claim within the scope of the amount not accepted in the primary claim where the primary claim is not accepted in whole, it will examine the preliminary claim (hereinafter referred to as "preliminary claim").

A. The plaintiff's assertion

In light of the fact that the DamageA remitted the sum of KRW 000 to the account under the name of the Defendant, the wife, in excess of its liability such as bearing tax liability against the Plaintiff, etc., and then returned it or made the Defendant transfer it to the person designated by the Defendant, and used it in settling the card price, each of the instant remittance acts constitutes a fraudulent act under the name of the deposit owner, and thus, should be revoked.

B. Determination

In light of the following facts: (a) no evidence exists to prove that the DamageA entrusted the name of the owner of the deposit to the Defendant that the Defendant opened the instant account under the name of the owner of the deposit and transferred each of the instant accounts to the said account; and (b) the Defendant could only recognize the fact that the Defendant continued his deposit transactions unrelated to the DamageA through the instant account in full view of the entire purport of the pleadings in each of the entries in subparagraph 1-1-11, and in addition, in light of the fact that the card, the payment of which was withdrawn from the instant account, was used as the cost of living while running the Defendant and the family, it is difficult to recognize that the circumstance alleged by the Plaintiff alone, as alleged by the Plaintiff, entered into a contract of title trust between the DamageA and the Defendant on the deposit account. The Plaintiff’s conjunctive claim has no merit.

4. Conclusion

The plaintiff's primary claim is justified within the scope of the above recognition, and the remainder of the plaintiff

Each conjunctive claim shall be dismissed in the primary claim and in the first instance. The judgment of the first instance shall be subject to this.

Inasmuch as the conclusion is partially different, it is unfair to accept part of the Plaintiff’s appeal and to revise the judgment of the first instance court as above. It is so decided as per Disposition.