Suwon District Court-2016-Gohap-79430 ( December 1, 2016)

The agreement on division of inherited property can be subject to the exercise of the right to cancel the fraudulent act, and there is a person who asserts the burden of proof on the donation in advance.

Since the agreement on division of inherited property is a juristic act aimed at property rights due to its nature, it can be subject to the exercise of the right to revoke the fraudulent act, and if the right to share shares is claimed to be donated before the article, the burden of proof is on the claimant

2016-B-2089586 Revocation of Fraudulent Act

AAA foreign1

Korea

December 7, 2017

January 18, 2018

1. The defendants' appeal is dismissed.

2. The costs of appeal are assessed against the Defendants.

[Claim]

As to shares 2/11 of the real estate listed in the separate sheet No. 1 list between Defendant AA and CCC, the agreement on the division of inherited property concluded on May 2, 2015 between Defendant BB and CCC as to shares 2/11 of the real estate listed in the separate sheet No. 2 list No. 2 shall be revoked. CCC, Defendant AA will implement the procedure for the transfer registration of ownership due to the restitution of each fraudulent act with respect to shares 2/11 of the real estate listed in the separate sheet No. 1 list No. 2 list, and Defendant BB will implement the procedure for the transfer registration of ownership due to each fraudulent act.

【Purpose of Appeal】

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

1. Basic facts

A. On July 9, 2007, the KUP notified CCC to pay KRW 208,980,610 of the transfer income tax for the year 2007, and on August 14, 2016, the amount in arrears of the transfer income tax for the CCC is KRW 365,715,620.

B. The early childhood died on May 2, 2015 (hereinafter referred to as “the deceased”), and the heir has the defendant AA, the defendant BB, the child, the defendant BB, the CCC, DD, and EE. The inheritance shares of the defendant AA are 3/11, and the remaining successors are 2/11, respectively.

C. On May 2, 2015, the CCC renounced the inheritance share (2/11) of each real estate listed in the separate sheet 1 and 2, which is the inherited property of the deceased, with respect to each real estate listed in the separate sheet 1 and 2, which is the inherited property of the deceased. Defendant AA gave up the inheritance share (2/11), and Defendant BB shall independently inherit the real estate listed in the separate sheet 1, and Defendant BB shall make an agreement on division of inherited property (hereinafter referred to as “instant agreement on division of inherited property”). Accordingly, Defendant AAB completed the registration of transfer of ownership on the real estate listed in the separate sheet 1 on September 23, 2015, and Defendant BB on December 1, 2015 under its name on the ground of the agreement on division of inherited property of each case.

D. At the time of the consultation on division of the inherited property of this case, CCC did not have any property other than the inherited property of the deceased.

[Reasons for Recognition] Facts without dispute, entry in Gap evidence 1 through 4, and 6 (including virtual numbers, unless otherwise specified; hereinafter the same shall apply), the purport of whole pleadings

2. Determination

A. Establishment of fraudulent act

The agreement on the division of inherited property is to confirm the reversion of inherited property by either having all or part of the inherited property owned independently by each inheritor or having it performed as a new co-ownership relationship with respect to the inherited property which has already been temporarily owned by co-inheritors after the commencement of inheritance, and thus, it is a juristic act aimed at property rights by its nature, and thus, it may be subject to the exercise of the right to revoke a fraudulent act. Meanwhile, barring any special circumstance, barring any special circumstance, a debtor’s act of selling real property which is one of his/her sole property and replacing it with or transferring it to another person with a money which is easily consumed or free of charge, constitutes a fraudulent act against a creditor. Therefore, even in cases where a debtor in excess of a debt already renounced joint security against a general creditor by waivering his/her right to his/her share of inherited property upon consultation on the division of inherited property

According to the above basic facts, CCC renounced the inheritance share of each real estate listed in [Attachment 1 and 2 List, an inherited property of the deceased on May 2, 2015, while it bears tax liability against the plaintiff, thereby reducing the joint collateral against the creditors including the plaintiff. Thus, barring any special circumstance, the agreement on division of the inherited property in this case constitutes a fraudulent act, and CCC’s intent to commit suicide is recognized.

Therefore, the agreement on the division of the inherited property of this case must be revoked as a fraudulent act, and as a result, Defendant AA owes to CCC with respect to 2/11 shares of the real estate listed in the separate sheet No. 1 list, Defendant BB owes to CCC with a duty to implement the registration procedure on the transfer of ownership due to each fraudulent act revocation with respect to 2/11 shares of the real estate listed in the separate sheet No. 2 list.

B. Determination as to the defendants' assertion

The Defendants asserted that the agreement on the division of the inherited property of this case does not constitute a fraudulent act, as CCC did not have any remaining shares in the remaining inheritance, on the ground that there is no remaining shares in the remaining inheritance, such as ① apartment located in 00:0:00 to 00,000 (hereinafter “the apartment of this case”), cash 300,000 won in May 27, 2003, ③ 00 to 687m2 in 00,000,000 (hereinafter “the site of this case”).

First, according to the statement in Eul evidence No. 8, although it is recognized that the ownership transfer registration was completed on April 11, 1994 due to the donation from March 31, 1994 as to the apartment of this case, it is not sufficient to recognize that CCC received the above apartment from the deceased as the donor is not clear solely on the above facts. Thus, there is no other evidence.

Next, according to the statement in Eul evidence No. 1, the fact that KRW 300 million was deposited in the bank account of the CCC on May 27, 2003 is recognized, but it is insufficient to recognize that CCC received cash 300 million from the deceased only with the above facts and the statement in Eul Nos. 4, 5, 7, and 9. There is no other evidence.

Finally, according to the evidence Nos. 1 and 2-2 of the instant site, the ownership transfer registration was completed on March 13, 1995 due to the sale on March 10, 1995. CCC was recognized as the birth on October 27, 1967 at the time 27 years of age, but it is insufficient to recognize that CCC received the above site from the deceased solely based on the above facts and evidence Nos. 12 through 14. Rather, according to the evidence Nos. 2, the ownership transfer registration was deferred in the future for construction on the instant site on February 16, 2007, but the possibility of sale on the instant site was deferred in the future on May 17, 2007 after the sale on the ground of a voluntary auction on March 16, 2007.

Therefore, the Defendants’ assertion is difficult to accept.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted for all reasons, and the judgment of the court of first instance is just in its conclusion, and the appeal by the defendants is dismissed as it is without merit. It is so decided as per Disposition.