The principal registration in the name of the defendant, which was made in violation of the Provisional Registration Security Act, also becomes subject to creditor's right of revocation.

Unless the juristic act which is the cause of provisional registration and the juristic act which is the cause of principal registration are clearly different, the juristic act which is the cause of provisional registration shall be established, and only the cause of principal registration shall be considered as the act subject to cancellation.

2013 Ghana 218511 Revocation of Fraudulent Act

Korea

IsaA

March 4, 2015

April 1, 2015

1. As to each real estate listed in [Attachment 1] Nos. 1 and 2:

A. The Defendant and Nonparty B’s promise to trade concluded on June 20, 201 and the sales contract concluded on September 23, 2011 are revoked within the scope of OOB, respectively.

B. The Defendant shall pay to the Plaintiff 1 0% interest per annum from the day following the day when this judgment became final and conclusive to the day of full payment.

2. As to real estate listed in [Attachment 3] No. 3:

A. The contract to establish a mortgage concluded on June 20, 201 between the defendant and the non-party BB shall be revoked.

B. The Defendant shall implement the registration procedure for cancellation of the registration of the establishment of a mortgage in the vicinity of the establishment that was completed by the Changwon District Court No. 27723, Jun. 20, 201.

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

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

A. Tax claims against the Plaintiff’s bookB

(1) From May 23, 2011 to June 3, 2011, the Plaintiff-affiliated District Tax Office investigated the transfer income tax on the transfer of the O-dong O-dong 606-1 to 1153.6m203m2.

(2) On November 4, 201, the Director of the Public Tax Office notified the POOO on November 30, 201 to the SeoB on the payment deadline for capital gains tax.

(b) Disposition of the property by the BB;

(1) In June 201, the officially announced value of land owned by SOB, including each real estate listed in the separate sheet, was an OOB.

(2) With respect to the real estate listed in [Attachment 1, 2] Nos. 1, 2, to the Defendant, who is the births of the Party’s former wife, the registration of the transfer of ownership was completed on June 20, 201 by the receipt OOO under the Changwon District Court Jinju Branch Branch of the Changwon District Court, and the registration of transfer of ownership was completed on September 30, 201 by the receiptOOO on September 30, 201.

(3) On August 2, 2012, the Defendant sold 1,2 real estate Nos. 1, and 2 to the KOO on August 2, 2012, and completed the registration of ownership transfer on August 27, 201.

(4) On June 20, 201, WesternB concluded a mortgage agreement with the Defendant regarding the real estate listed in the separate list No. 3 (hereinafter referred to as the “real estate No. 3”) as an OOO on June 20, 201, and concluded a mortgage agreement with the Changwon District Court on the same day, on June 20, 201, the establishment registration was completed by the receipt OO on June 20, 201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, 6, purport of the whole pleadings

2. Determination as to the cause of action

A. Formation of preserved claims

In principle, a claim that can be protected by the obligee’s right of revocation should have arisen before an obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, at the time of the juristic act, there is a high probability that the legal relationship, which is the basis of establishment of the claim, has already been established at the time of the juristic act, and that the claim is created in the near future, and where a claim has arisen due to the realization in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2000Da37821,

According to the above facts, the obligation to pay capital gains tax against the plaintiff is abstractly established by transferring the real estate subject to taxation as stated in the above 1.A. (1) around 2003, and the legal relationship, which forms the basis of the plaintiff's claim for capital gains tax against BB at the time of disposal of the real estate subject to taxation, was already established, and it was highly probable that transfer income tax claims, including additional tax, have occurred in the near future due to failure to comply with the scheduled return of capital gains after the transfer of the real estate subject to taxation at all. In fact, the possibility of the plaintiff's imposition of capital gains tax on November 4, 201, thereby establishing the transfer income tax claim.

(b) The establishment of fraudulent act and the intention of the SB to understand it;

The act that a bookB, in excess of the debt, transfers the ownership of 1 and 2 real estate in the sequence 1 and 3 that is active property to the defendant, and setting up a collateral on 3 real estate constitutes a fraudulent act by reducing the joint collateral of the general creditor.

In addition, in light of the fact that the transfer income tax investigation on the SB of the official tax secretary was conducted for a long time, and that the provisional registration of the right to claim for transfer of ownership and the registration of the establishment of a neighboring mortgage have been completed, it is also recognized that the SB knew that there was a risk that the creditor would be difficult to receive payment due to the lack of joint security due to the purchase and sale promise and the contract to establish a mortgage on June 20, 201.

3. Judgment on the defendant's assertion

A. The defendant's assertion

At around May 201, SB requested the Defendant to lend money because there is a debt to be paid in relation to the land of OO-dong 606-1, the Defendant lent OOOO to BB on June 3, 2011, and completed the provisional registration or the establishment registration of mortgage on each real estate listed in the separate sheet as a collateral for the loan, and the Plaintiff was unaware of the existence of the tax claim against SOB, and thus is a bona fide beneficiary.

B. Determination

Since the beneficiary's bad faith is presumed in a lawsuit seeking revocation of a fraudulent act, the beneficiary is liable to prove his/her good faith in order to be exempted from his/her responsibility. In such cases, whether the beneficiary is bona fide or not shall be determined reasonably in light of logical and empirical rules, comprehensively taking into account the relationship with the debtor and the beneficiary, the circumstances leading up to the act of disposal between the debtor and the beneficiary, the circumstances leading up to the act of disposal, whether there are no special circumstances to doubt that the terms and conditions of the act of disposal have been normal transaction, and circumstances subsequent to the act of disposal, etc. Furthermore, to recognize that the beneficiary was bona fide at the time of the fraudulent act as the beneficiary was bona fide, evidence, etc. that may be objectively and objectively obtained should be supported, and it shall not be readily concluded that the beneficiary was bona fide at the time of the fraudulent act only based on the debtor's unilateral statement or statements that are merely a third party's prosecution (see, e.g., Supreme Court Decision 2013Da206986, Nov. 28

In this case, the following circumstances, which are acknowledged by comprehensively considering the overall purport of the pleadings in evidence Nos. 4 through 6, i.e., the defendant: (i) the defendant has a special relationship with BB with the birth of ECC, the former wife of SCC; (ii) the SeoB was investigated into the transfer income tax of this case from May 23, 201 to June 3, 201; (iii) the provisional registration of the right to claim ownership and the registration of the establishment of the neighboring mortgage was completed on June 20, 2011; and (iv) on August 2, 2012, the SeoB concluded a sales contract for real estate between the defendant's agent Nos. 1 and 2 as to each of the documents Nos. 4 through 7, and thus, it is insufficient to accept the defendant's assertion that the defendant's purchase and sale of the beneficiary's bad faith was presumed to have been malicious and that the defendant did not know that the contract was a fraudulent act.

4. Scope of revocation of fraudulent act and methods of reinstatement.

A. As to the Nos. 1 and 2

In a case where a provisional registration has been completed for preserving a claim for transfer of ownership in the name of a beneficiary for a real estate owned by an obligor, the principal registration of transfer of ownership based on such provisional registration has been completed, unless the juristic act, which is the cause for registration of provisional registration, and the juristic act which is the cause for registration of principal registration, is obviously different, the juristic act which is the cause for registration of provisional registration, shall be deemed to be a fraudulent act subject to revocation (see, e.g., Supreme Court Decision 2004Da24960, Dec. 21, 2006); thus, the legal act which is the cause for registration of principal registration, shall not be deemed to be a fraudulent act subject to revocation (see, e

Furthermore, according to the health unit, Gap evidence No. 2, as to the method of restitution, the defendant is obligated to return the value of the real estate set forth in the sequence 1 and 2 within the limit of the plaintiff's preserved claim amount by performing the procedure for the registration of ownership transfer on August 27, 2012 with respect to the real estate Nos. 1 and 2.

Therefore, the defendant is obligated to pay to the plaintiff 1 and 2 real estate value at the rate of 5% per annum from the day following the day when the judgment became final and conclusive to the day when the full payment is made.

B. As to real estate Nos. 3

In addition, since the contract to establish the right to collateral security concerning the No. 3 real estate between the defendant and SeoB constitutes a fraudulent act, it is revoked, and the defendant must implement the procedure to cancel the registration of establishment of the right to collateral security concerning No. 3 real estate from SeoB.

5. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.