money payment to a person with a special relationship constitutes a fraudulent act by donation.

An act of paying money to a person with a special relationship under the circumstances in which the debtor is expected to impose capital gains tax without any particular property constitutes fraudulent act by donation.

2013 Gohap3469 Revocation of Fraudulent Act

Korea

Park AA

on October 27, 2014

on April 10, 2014

1. The gift contract concluded on July 21, 2010 between the defendant and the non-party 1B shall be revoked within the limit of KRW 000.

2. The defendant shall pay to the plaintiff 000 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.

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

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. Formation of a taxation claim

1) On June 11, 2010, JungB sold the sales price of OO-type O 615-50 square meters for O-type O-type O-type 615-50 square meters for 615-51 forest land for the same Ri, 615-52 square meters for 615-52 square meters for each of the instant real estate (hereinafter “each of the instant real estate”) to HanB as KRW 0 million for an intermediate payment of KRW 00 million on the date of the contractual conclusion, the intermediate payment of KRW 00 million on June 30, 2010, and the remainder amount of KRW 00 million on July 20, 2010 for sale.

2) AB around September 30, 2010, upon filing a preliminary return of capital gains tax on each of the instant real estate sales, but did not pay the preliminary return, the head of the OB determined the capital gains tax amount of KRW 000 as of August 31, 201 with the due date for payment by the head of the OB.

3) The amount in arrears of capital gains tax that was not paid by PB as of the filing date of the instant lawsuit is KRW 000 (hereinafter “instant taxation claim”).

(b) cash grant to the Defendant of the PartyB;

on July 20, 2010, JungB received KRW 000,000 from HanO Co., Ltd. the remainder of the sales price of each of the instant real estate from OB into the OB bank account (the balance of the said account is KRW 148,949, to KRW 296,148,949), and on July 21, 2010, deposited KRW 00,000 out of the said money into the OB account of the Defendant, the father (hereinafter “instant payment”).

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 3, 5, 6, 7

Each entry, including numbers), the purport of the whole pleading

2. Determination

(a) Occurrence of the right to revoke the fraudulent act;

(i)the existence of preserved claims;

A) In principle, a claim protected by the obligee’s right of revocation is required to be constituted prior to the occurrence of an act that can be seen as a fraudulent act, but it is highly probable that the legal relationship has already arisen at the time of the fraudulent act, which would be the basis of the establishment of the claim in the near future, and that the claim would be established in the near future, and where a claim has been established as a result of its realization in the near future, the claim may also be subject to the obligee’s right of revocation. This legal principle also applies to a tax claim. As such, where a claim was established specifically through a series of procedures, such as a decision of correction, etc., even if there was no specific decision of correction, even though it was made at the time of the fraudulent act, there was a basic legal relationship as to the occurrence of a tax claim, and where a tax claim was established specifically in the near future through a series of procedures, such as the actual decision of correction, etc., even though it is highly probable that a claim will be established in the near future (see, e.g., Supreme Court Decision 200

B) On June 11, 2010, as seen earlier, there was a disposition imposing capital gains tax on the Plaintiff’s fixed path after the instant payment act. However, due to the sale of each of the instant real estate on or after June 11, 2010, the obligation to pay capital gains tax was established abstractly and the legal relationship, which forms the basis for establishing a claim that can be protected by the obligee’s right of revocation at the time of the instant payment act, was established, and it was highly probable that the Plaintiff’s claim against the Plaintiff’s fixedB was established in the near future. In fact, since the possibility was realized by the Plaintiff’s imposition of capital gains tax amounting to KRW 000,000, the instant tax claim becomes the preserved claim of the obligee’s right of revocation.

(ii) the status of excess of the liabilities of the PartyB;

Since a fraudulent act refers to an act detrimental to the creditor by causing the debtor to go beyond his/her obligation or deepening the fact that he/she had already been in excess of his/her obligation by reducing active property or increasing his/her negative property, it should be premised on the fact that such an act resulted in the said situation (see Supreme Court Decision 2000Da7783, Oct. 25, 2002).

Comprehensively taking account of the aforementioned evidence and the purport of the entire argument in the statement in Gap evidence Nos. 8, 200 won, including the remaining amount of KRW 296,148,949, i.e., O bank account balance of KRW 296,148,949, at the time of the instant payment act. The Plaintiff was liable to pay capital gains tax equivalent to KRW 000,000,000,000,000,000,000,000,000,000,000,000 won, and thereafter, the account balance was KRW 11,148,949,000,000,000,0000 won. Thus, the status

(iii)the intent to commit fraudulent act and to commit suicide;

A) The parties’ assertion

(1) Plaintiff

In the event that it is anticipated that capital gains tax will be imposed without any particular property, the pertinent gift agreement constitutes a fraudulent act, and thus, the said gift agreement constitutes a fraudulent act. In addition, even if the instant payment act is repayment, if it was performed with respect to the Defendant, who is a person with a special relationship, the said agreement constitutes a fraudulent act because it was performed with the intent to harm other creditors by in collusion with some creditors.

(2) Defendant

The defendant, upon the husband's request, lent KRW 00 million around December 8, 2004 to the credit union by her husband-CC-type in order to repay loans to the credit union. However, on July 21, 2010, the defendant was merely repaid KRW 00 million from MaB and did not receive any donation of the above money, and thus does not constitute a fraudulent act.

B) Determination

(1) If a debtor donated his/her own property to another person under excess of his/her obligation, such act constitutes a fraudulent act, barring special circumstances (see, e.g., Supreme Court Decision 2006Da11494, May 11, 2006). However, in cases where the debtor’s repayment pursuant to the principal obligation to a specific creditor while over obligation exceeds his/her obligation results in a decrease in the joint security of other creditors, such repayment does not constitute a fraudulent act in principle unless the debtor, in collusion with some creditors, performs performance with the intent to prejudice other creditors, and thereby, perform performance with the intent to harm other creditors (see, e.g., Supreme Court Decision 2003Da60822, May 28, 2004). With respect to a creditor seeking revocation of a fraudulent act, where the beneficiary asserts that he/she was paid the debtor’s monetary payment to the beneficiary, this constitutes a fraudulent act of 200, as alleged by the creditor, and thus, it constitutes an obligee’s assertion that it constitutes a fraudulent act of 2060.

(2) According to the above evidence and evidence Nos. 2, 3, 7, and 4-B 1 through 11-B, and each order to submit financial transaction information to the listed agricultural cooperatives of this court on December 8, 2004, the defendant was given a loan of KRW 00 million from the listed agricultural cooperatives of KRW 200 million and delivered KRW 00 million to the 200 million on the same day. However, upon considering the whole arguments, around 204, around 200, 204, around 201, 207 KRW 300,000,000,000 won was paid by the defendant to the 201-B 3,000,000 won was paid by the 201-B 3,000,000 won was paid by the 201-B 3,000,000 won was paid by the defendant to the 201-B 2,000 won.

C) Sub-determination

Ultimately, the act of making a donation to the Defendant, which is closely related to him, immediately after he received the balance of sales and purchase of each real estate in this case, constitutes a fraudulent act, and as a party B, it shall be deemed that the above act was known that it would damage his general creditors at the time, and the Defendant’s bad faith is presumed to be the beneficiary.

4) Determination on the defense that a bona fide beneficiary is a bona fide beneficiary

A) The Defendant asserts that he did not know the fact that the instant payment act constitutes a fraudulent act. When recognizing that the beneficiary was bona fide at the time of the fraudulent act, evidence, etc. that may be objectively and objectively obtained should be supported (see, e.g., Supreme Court Decision 2009Da11617, May 28, 2009). The relationship between the debtor and the beneficiary, the details of and the background or motive for the act of disposal between the debtor and the beneficiary, the circumstances leading to the act of disposal between the debtor and the beneficiary, whether there are objective materials to support the act of disposal as a normal transaction, and the circumstances after the act of disposal, etc. should be reasonably determined in light of the empirical rule. (See, e.g., Supreme Court Decision 2007Da74621, Jul. 10, 2008).

B) In light of the following: (a) there is no particular evidence to acknowledge that the Defendant is a bona fide beneficiary; (b) there is a close human relationship between HaB and the Defendant; and (c) HaB sold each of the instant real estate, the sole property of which was sold, and then donated to the Defendant, it is difficult to accept the Defendant’s above assertion.

(b) Revocation of fraudulent act and reinstatement;

Therefore, the contract of donation between EB and the Defendant on July 21, 2010 shall be revoked within the limit of KRW 133,777,030, which is the amount of the Plaintiff’s credit, and the Defendant shall recover to its original status of KRW 133,77,030, and the Civil Act shall apply to the Plaintiff from the day after the judgment became final to the day of full payment.

There is an obligation to pay damages for delay calculated at the rate of 5% per annum.

3. Conclusion

Then, the plaintiff's claim is justified, and it is decided to accept it, and it is so ordered as per Disposition.

partnership.