Whether it constitutes a fraudulent act

In excess of debt, the act of donation of the real estate in this case to the spouse constitutes a fraudulent act

2013Du200908 Revocation of Fraudulent Act

Korea

○ ○

Pleadings without Oral Proceedings

oly, 2013.104

1. A. A. Revocation of a donation agreement concluded on August 7, 2012 between the Defendant and Nonparty KimA on real estate listed in the separate sheet No. 1.

B. The Defendant shall implement the procedure for the cancellation registration of ownership transfer registration completed on August 30, 2012 by the receipt No. 61311 of the receipt of August 30, 2012 with respect to the real estate described in paragraph (a) to Nonparty Kim A.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Indication of claims: To be as shown in Appendix 2; and

2. Judgment without holding any pleadings (Article 208 (3) 1 of the Civil Procedure Act);

Attached Table 2

Grounds of Claim

1. Basic facts

A. The Plaintiff’s reason for imposing value-added tax on KimA

1) The head of the ○○ Tax Office conducted a tax investigation with respect to KimA from August 27, 2012 to October 4, 2012, and notified the amount of KRW 1,689,498,220 as global income tax and global income tax and KRW 1,689,498,220 as of November 30, 2012, by conducting a tax investigation with respect to KimA from January 1, 2007 to June 30, 2012.

2) At the time of the filing of the lawsuit, KimA does not pay KRW 1,773,639,220 (hereinafter referred to as "tax claim of this case"), including additional 84,141,00 won.

B. Reasons for the real estate donation by KimA

As above, KimA entered into a donation agreement with the defendant who is the spouse on August 7, 2012 while the plaintiff was conducting a tax investigation with the principal on the real estate listed in the separate sheet No. 1 (hereinafter referred to as the "real estate of this case") and completed the registration of transfer of ownership on August 30, 2012.

2. Formation of preserved claims;

In principle, it is required 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. However, at the time of such fraudulent act, there has already been legal relations that serve as the basis of the establishment of the claim, and there is high probability that the claim should be established in the near future by such legal relations, and in cases where a claim has been realized in the near future with its probability, such claim may also become a preserved claim (see, e.g., Supreme Court Decision 99Da53704, Feb. 25, 2000).

In the instant case, value-added tax and global income tax are abstractly established at the end of the taxable period (see Article 21(2)2 of the Framework Act on National Taxes). As such, on June 30, 2007, which is the end of the taxable period of value-added tax, the establishment date of the obligation to pay the instant tax claim has already been formed the legal relationship that is subject to taxation requirements prior to the date of the instant fraudulent act (the date of registration of ownership transfer to his spouse: August 30, 2012), and as long as the return of value-added tax was under-added tax during the taxable period from January 1, 2007 to June 30, 2012, it was highly probable that the instant tax claim becomes final and conclusive by the Plaintiff’s notice of tax payment of value-added tax on the grounds of the underreporting’s underreporting’s underreporting’s under-reported return, and thus, the Plaintiff’s claim for taxation claim of this case was revoked.

3. Excess of debts;

(a) Active property;

KimA shall not have any other active property, such as real estate with property value other than the real estate transferred by fraudulent act.

B. Petty property

As of 27 March 2013, 2013, KimA’s small property is the status of KRW 1,773,639,220 in the amount of national taxes in arrears as of the date of donation of the real estate in this case. Therefore, it is anticipated that the donation of the real estate in this case may cause an excess of the amount of KRW 1,773,639,220, and that the Plaintiff’s

4. The intention to commit fraudulent act and to injure himself;

After the head of ○○○ Tax Office initiates the tax investigation on August 27, 2012, the act of transferring the ownership of the instant real estate, which is one of the real estate, to the spouse, on August 30, 2012, constitutes a fraudulent act detrimental to the Plaintiff, which is the creditor, and at the same time, the debtor's intent to harm is presumed.

5. Bad faith of the defendant

Since the beneficiary's bad faith is presumed, the beneficiary has the burden of proof to the beneficiary that he was unaware of that it was a fraudulent act. At the time of receiving the gift of this case, the defendant was subject to an investigation by KimA as the spouse of KimA and was aware that the tax would be notified to KimA.

6. The date on which he has become aware of a fraudulent act;

After printing out the property status list on 2012.09.14, in the course of the tax investigation, the real estate in this case was transferred under the name of the defendant after reading the certified copy of the register.

7. Reinstatement; and

In light of the above facts, the donation of the real estate in this case between the delinquent taxpayer KimA and the defendant was concluded with the knowledge that ○○○ Tax Office would prejudice the taxation right holder in order to be exempted from the disposition of default on national taxes such as attachment under the above national taxes imposed by the head of ○○ Tax Office, and the defendant also knew the facts. Therefore, the defendant sought revocation by Article 406 (Right of Revocation) of the Civil Code, and the defendant is obliged to implement the procedure for the cancellation registration of ownership transfer registration in the name of the defendant with respect to

8. Conclusion

Therefore, the contract of gift concluded on August 7, 2012 between the Defendant and Nonparty KimA with respect to the instant real estate shall be revoked, and the Defendant shall be obligated to implement the procedure for the cancellation of registration of cancellation of ownership transfer registration under the name of the Defendant with respect to the instant real estate by restitution to its original state. Therefore, the claim in this case was filed to seek the cancellation of fraudulent act and the performance of