Changwon District Court-2016-Ma12672 ( November 30, 2016)

The act of trading real estate in advance to a fraudulent person with knowledge that a delinquent taxpayer would be subject to high-amount tax is a fraudulent act.

The act of transferring the ownership of real estate in the form of sale to a fraud, which is the only property of the debtor in advance, with the knowledge that the tax would be levied on the delinquent taxpayer.

Article 30 of the National Tax Collection Act

2016Na60130 Revocation of Fraudulent Act

Korea

Park 00

October 24, 2017

November 14, 2017

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The purchase and sale contract concluded on June 26, 2012 with respect to 000 m20,000 m2, Seongdong-gu, Seongdong-gu, Sungwon-si, Sungwon-si with the Defendant shall be revoked within the scope of KRW 170,000,000. The Defendant shall pay to the Plaintiff the amount calculated by the annual rate of KRW 170,000 and the amount equivalent to KRW 50,000 from the day following the day this judgment becomes final to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Basic facts

A. ThisA is a person who was engaged in real estate leasing business from November 20, 202 to April 30, 2012, and the Defendant is a fraudulent act of thisA. This during the said period, while engaging in real estate leasing business, is liable to pay taxes of KRW 273,805,950 to the Plaintiff.

B. On June 26, 2012, thisA entered into a sales contract with the Defendant for a purchase price of KRW 170 million with respect to the amount of KRW 00,000,000 square meters (hereinafter “instant land”), which was the only property of the Defendant himself/herself (hereinafter “instant sales contract”) and completed the registration of ownership transfer with respect to the instant land on June 29, 2012 under the name of the Defendant.

C. At the time of the instant sales contract, on July 24, 2008, the establishment registration of a neighboring mortgage (the mortgagee: the maximum debt amount: KRW 429 million; the secured debt amount: KRW 57 million) was completed on the instant land, which was July 24, 2008. The Defendant, on July 6, 2012, revoked the establishment registration of a neighboring mortgage by fully repaying the secured debt amount, and completed the establishment registration of a neighboring mortgage amount of KRW 120 million in the future of △△ Bank, the △△△ Bank, the maximum debt amount, and KRW 57 million.

[Ground of recognition] Facts without dispute, Gap 1-9, the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The defendant's assertion

In light of the fact that public officials belonging to the Plaintiff attached claims of thisA due to measures taken by thisA on June 14, 2013 for delinquency in tax payment, the Plaintiff was aware of the instant sales contract at least at the said time, and thus, the instant lawsuit filed after the lapse of the exclusion period of one year thereafter is unlawful.

B. Relevant legal principles

"The date when the creditor, who is the starting point for the exclusion period in the exercise of the right of revocation, becomes aware of the cause for the revocation" means the date when the creditor becomes aware of the requirement for the right of revocation, that is, the date when the creditor becomes aware of the fact that the debtor had committed a fraudulent act while being aware of the cause for revocation. In order to say that the creditor was aware of the cause for revocation, it is insufficient to find the fact that the debtor merely knew of the fact that the debtor conducted a disposal of the property, and it is necessary to know the existence of a specific fraudulent act and that the debtor had an intent to harm the debtor. It is not presumed that the creditor was aware of the objective fact of the fraudulent act, and where it is unclear whether the limitation period under Article 406 (2) of the Civil Code has expired, the burden of proof is the other party to the lawsuit for revocation (see Supreme Court Decision 2002Da63879, Jan. 24, 2003)."

2017. 7. 12.자 이 법원의 ◇◇세무서장에 대한 사실조회회신 결과에 따르면, 원고 산하 ◇◇세무서 소속 공무원이 2013. 6. 14. 이AA의 ▽▽생명보험, ◆◆생명보험에 대한 각 보험금채권을 각 압류한 사실을 인정할 수 있다. 그러나 앞서 든 증거 및 갑 7, 8의 각 기재에 변론 전체의 취지를 종합하여 인정할 수 있는 다음과 같은 사실 또는 사정을 고려하면, 원고가 이 사건 소 제기일인 2016. 8. 23.부터 역산하여 1년 이전에 이AA의 사해행위를 알았다고 단정하기 부족하고, 달리 이를 인정할 증거가 없다. 피고의 본안 전 항변은 이유 없다.

① On July 14, 2016, the head of the tax office having jurisdiction over the Plaintiff requested the investigation of tracking the fraudulent act regarding the instant sales contract. On July 19, 2016, the commissioner of the regional tax office having jurisdiction over the Plaintiff was selected as the subject of the investigation of tracking the fraudulent act.

② If a public official belonging to the Plaintiff knew that the instant sales contract was a fraudulent act in around 2013, he/she would have requested an investigation of such fraudulent act or presented his/her opinion that the fraudulent act would be doubtful, and there is no evidence to deem that such measure was taken.

③ In light of the Defendant’s assertion, even if a public official affiliated with the Plaintiff attached the claims of thisA with the knowledge that the said public official had no real property property, it is difficult to deem that the said public official was aware that the instant sales contract was a fraudulent act at the time of the said seizure and that the said public official had an intention of deception against the said public official.

3. Judgment on the merits

A. Whether the preserved claim is established

Although it is necessary to say 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, it is highly probable that at the time of a fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of a claim, and that a claim should be established by the near future legal relationship, and where a claim has been created by realizing the possibility 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 2004Da40955, Nov. 12, 2004). Meanwhile, income tax on the gains from transfer of assets is abstractly established on the last day of the month in which the amount that serves as the tax base for the transfer of assets occurred (see, e.g., Supreme Court Decision 92Nu7887, Mar. 23,

Examining the purport of the entire pleadings in light of the aforementioned relevant legal principles, at the time of the instant sales contract, the legal relationship that forms the basis for the establishment of the Plaintiff’s transfer income tax claim against Lee (hereinafter “instant transfer income tax claim”) against the Plaintiff at the time of the instant sales contract (hereinafter “instant transfer of commercial building”). The said claim was abstractly established on April 30, 2012 (the last day of the month to which the date of the instant transfer of commercial building belongs). Since the said claim became final and conclusive by notifying this Plaintiff to pay the said transfer income tax, the said transfer income tax claim can become a preserved claim for the obligee’s right of revocation.

B. Whether the fraudulent act was established

1) Whether the debtor's debts are in excess

The Defendant asserts to the effect that, at the time of the instant sales contract, thisA’s total amount of taxes in arrears against the Plaintiff was over KRW 17,108,210, and thisA did not exceed its obligation.

In order to become a fraudulent act of an obligor’s act of disposing of his/her assets, the obligor’s small assets are larger than active assets, and the obligor’s obligation is insufficient at the time of the fraudulent act. In addition, even in determining whether the obligor’s obligation exceeds his/her obligation, the obligor’s obligation should also be included in the obligor’s small assets if it is highly probable that at the time of the fraudulent act the legal relationship, which is the basis of establishing the obligation, has already been established, and that the obligation should be established based on such legal relationship in the near future, and that is actually realized in the near future (see Supreme Court Decision 2010Da68084, Jan. 13, 201).

Examining the purport of the entire pleadings in light of the aforementioned legal principles, as seen earlier, the issue of whether thisA’s obligation was exceeded should be determined as included in the instant transfer income tax obligation at the time of the instant sales contract. As such, thisA’s active property is KRW 170,000,000 (the sales price at the time of the instant sales contract), and thisA’s passive property is at least KRW 273,805,950 (total amount of delinquent taxes). Accordingly, at the time of the instant sales contract, thisA was in excess of its obligation.

The defendant's above assertion is without merit.

2) Whether the instant sales contract constitutes fraudulent act

The defendant asserts that the contract of this case was not a fraudulent act since the defendant lent a total of KRW 100 million from September 26, 2003 to April 6, 2004 to LeeB, who is the husband of thisA, and the land of this case was transferred from thisA under the pretext of payment in lieu of the above claim.

Unless there are special circumstances, an act of an obligor, who has already been in excess of his/her obligation, provides real estate to any one of the obligees as payment in kind, constitutes a fraudulent act in relation to other obligees, and a obligor’s intent and bad faith is presumed to be a bad faith (see, e.g., Supreme Court Decision 96Da23207, Oct. 29, 196).

Considering the following facts or circumstances that can be acknowledged by comprehensively considering the purport of the entire pleadings, this case’s sales contract constitutes fraudulent act, and this case’s intent to injure is acknowledged, and the Defendant’s malicious intent is presumed to be presumed also. The Defendant’s assertion is without merit.

① Considering that thisA is a person who has carried on a real estate leasing business, thisA was aware that the transfer of the commercial building in this case would have caused the Plaintiff to bear a large amount of capital gains tax, so it is reasonable to deem that the Plaintiff was aware of the excess of its obligation at the time of the instant sales

② ThisA, upon being aware of any excess of the obligation as seen in the above ①, sold the instant land, which was the only property of the Defendant at the time, to the Defendant who was the fraud.

3. According to the statements in Section B 1-1 and Section B-2, the Defendant remitted a total of KRW 45 million to Section B.

However, there is no evidence to acknowledge that the said money was loaned to thisA or that the amount of the loan was KRW 100 million as alleged by the defendant.

④ The Defendant did not present all the disposal documents, objective circumstances, etc. to prove the fact that the Defendant’s assertion was entered into a payment contract in lieu of the Defendant’s assertion ( even if the Defendant’s assertion is recognized as payment in lieu of the Defendant’s assertion, the instant sales contract constitutes fraudulent

C. Defendant’s bona fide assertion

The defendant asserts to the effect that the act of purchasing the instant land from thisA was a fraudulent act, and thus, the presumption of bad faith against the defendant should be invalidated.

Since the beneficiary's bad faith is presumed in a lawsuit seeking revocation of a fraudulent act, in order for the beneficiary to be exempted from his/her responsibility, it shall be based on objective and understandable evidence, etc. when recognizing that the beneficiary was bona fide at the time of the fraudulent act, and it shall not be readily concluded that the beneficiary was bona fide at the time of the fraudulent act only with the unilateral statement of the debtor, a statement that is merely a third party, etc. (see, e.g., Supreme Court Decision 2009Da60466, Jul. 22, 2010).

However, considering the fact that the defendant was closely related to thisA as the defendant's fraud, the circumstances alleged by the defendant alone and evidence submitted by the defendant alone lack to reverse the defendant's bad faith presumption, and there is no other evidence to acknowledge it. The above assertion by the defendant is without merit.

D. Sub-determination

The instant sales contract shall be revoked as it constitutes a fraudulent act, and the Defendant bears the duty to restore the Plaintiff following the revocation of the fraudulent act.

4. Determination on restitution

(a) Methods for reinstatement;

In cases where the registration of creation of a mortgage was cancelled due to subsequent repayment, etc. of a mortgage on real estate on which a mortgage was established, revocation of a fraudulent act and ordering the restoration of the real estate itself would be an order to restore the portion which was not originally owned by the general creditors to the portion which was not jointly secured by the general creditors, thereby going against the fairness and fairness. Thus, a fraudulent act may be cancelled within the extent of the balance remaining after deducting the secured claim amount from the value of the real estate (see, e.g., Supreme Court Decision 2001Da33734, Dec. 27, 2001).

In the instant land, the establishment registration was completed on July 24, 2008. However, the Defendant’s revocation of the establishment registration of a mortgage on the instant land through repayment after completing the registration of establishment of a mortgage under the name of the Defendant was examined as seen earlier. This is the case where the registration of establishment of a mortgage was revoked by means of repayment after the fraudulent act, etc. As such, restitution following the revocation of the instant fraudulent act ought to be made by the method of compensation for value.

B. Scope of compensation for value

Where a debtor has a right to collateral security on a real estate that was transferred by a fraudulent act and compensation for its value is required, the liability property provided to the general creditors' joint collateral among such real estate remains after deducting the amount of the existing collateral security obligation. Thus, in cases where a fraudulent act is revoked, the amount of compensation for such fraudulent act shall be calculated by deducting the amount of the collateral security obligation from the value of such real estate at the time of the closure of arguments at fact-finding trials, which is the time of revocation of the fraudulent act (see, e.g., Supreme Court Decision 2003Da60891, Oct. 14

In full view of the facts without dispute between the parties and the purport of the entire pleadings, the market price of the land of this case at the time of the date of closing the argument in this Court, and the amount of the secured debt of the right to collateral security established on the land of this case at the time of the sales contract in this case can be acknowledged as being the cause of 57 million won. Therefore, the sales contract of this case shall be revoked within the limit of KRW 17,640,000,000, which is the amount calculated by deducting the above secured debt amount of KRW 57,000,000,000 from the market price of the land of this case at 230,640,000,000 won, which is the amount of KRW 17,36,000,000,000 which is the beneficiary of the fraudulent act of this case, and the defendant, who is the beneficiary of this case, shall pay to the plaintiff the damages for delay calculated at the rate of 5% per annum under the Civil Act from the day of this judgment

5. Conclusion

Since the judgment of the first instance is justifiable, the defendant's appeal is dismissed, and it is so decided as per Disposition.