The scope of compensation for value

Where one of the co-owners of a house in which a lessee has a right to lease a house and to obtain preferential repayment for a lease deposit from all co-owners disposes of his/her shares, the portion of the share, which remains after deducting the total amount of claims for return of the lease deposit with preferential payment right, from the total amount of the claims for return of

Article 30 of the National Tax Collection Act: Revocation and Restoration of Fraudulent Act

2017Na16753 Revocation of Fraudulent Act

AA

aa and one other

July 19, 2017

August 30, 2017

1. Of the judgment of the court of first instance, the part against the Defendants in excess of the following cancellation and payment order shall be revoked, and the Plaintiff’s claim against the Defendants corresponding to the revoked part shall be dismissed

A. On February 6, 2011, the agreement on division of inherited property concluded on February 6, 201 with respect to 1/5 shares of each real estate listed in the separate sheet between Defendant Aa and BB shall be revoked to the extent of x members.

B. The Defendants jointly pay to the Plaintiff x members and 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

2. The defendants' remaining appeals are dismissed.

3. 4/5 of the total litigation costs is borne by the Plaintiff, and the remainder is borne by the Defendants, respectively.

1. Purport of claim

The agreement on the division of inherited property concluded on February 6, 201 with respect to 1/5 shares of each of the real estate listed in the separate sheet between Defendant A and BB shall be revoked within the limit of x members. The Defendants jointly pay to the Plaintiff the amount calculated by the rate of 5% per annum from the day following the date this decision became final to the day of full payment with respect to x members and the aforesaid amount.

2. Purport of appeal

The part of the judgment of the first instance against the Defendants shall be revoked, and the plaintiff's claim corresponding to the revocation part shall be dismissed.

1. Facts of recognition;

The reasons for this part are as stated in Paragraph 1 of Article 420 of the Civil Procedure Act, except that the reasoning for this part of the judgment of the court of first instance is added to Paragraph g. below of Article 1-6 of the Reasons for the judgment of the court of first instance as follows, and that Paragraph 1 of Article 420 of the Civil Procedure Act is the same.

(g) On February 6, 201, “The details of lease deposit with preferential rights to payment on each of the instant real estate at the time of the split-off consultation on the inherited property of this case are as listed below:

2. Determination as to the defendants' defense prior to the merits

The reasons for this part are as stated in Paragraph 2 of the reasoning of the judgment of the court of first instance, and thus, they are cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

3. Judgment on the merits

A. Establishment of fraudulent act

(i) the right to be preserved;

According to the above facts of recognition, since the Plaintiff’s xB’s claim against bB was established before the division of the inherited property in this case, it becomes a preserved claim to cancel the division of the inherited property in this case as a fraudulent act.

(ii)the intent to commit fraudulent acts and to commit fraud;

Since the agreement on division of inherited property is a juristic act aimed at property rights by its nature, it can be subject to the exercise of the right to revoke a fraudulent act. The case where a debtor in excess of debt already gives up his/her right to inherited property while holding a divided agreement on the inherited property and thereby joint security against general creditors has been reduced, in principle, constitutes a fraudulent act against the creditor (see, e.g., Supreme Court Decision 2007Da29119, Jul. 26, 2007)

As to the instant case, since BB’s excess of debt did not waive the right corresponding to one’s share in the inherited property of this case while holding a divided agreement on the inherited property of this case, the joint collateral against the general creditors including the Plaintiff was reduced. Thus, the part relating to 1/5 share in BB, which is the share in the inherited property of this case, among the agreement on the division of inherited property of this case, constitutes a fraudulent act (hereinafter referred to as “the fraudulent act of this case”) in relation to the general creditors including the Plaintiff, barring special circumstances, it is reasonable to view that BB is thereby aware that it would thereby prejudice the general creditors including the Plaintiff. Moreover, each intention of Defendant Aa and Defendant CC, the subsequent purchaser, is presumed.

(b) Methods of reinstatement;

1) In a case where a legal act on a certain real estate constitutes a fraudulent act, in principle, the fraudulent act shall be revoked and ordered to recover the real estate itself, such as cancellation of the registration of transfer of ownership. However, in a case where a fraudulent act was committed with respect to the real estate in which a lessee or a small-sum lessee who has the requisite for counterclaim and the fixed date set forth in the Housing Lease Protection Act, such fraudulent act shall be deemed only to be established within the extent of the balance obtained by deducting the above lease deposit from the value of the real estate. Therefore, in a case where the beneficiary performed the obligation to return the lease deposit with preferential right to reimbursement after the fraudulent act, the revocation of the fraudulent act and the order to recover the real estate itself would result in a violation of fairness and fairness by recovering the portion which was not initially secured by the general creditors' joint security. Thus, it is only possible to revoke the fraudulent act and order compensation for the value thereof within the extent of the balance obtained by deducting the above lease deposit (see, e.g., Supreme Court Decisions 97Da6711, Feb. 13, 2007>

2) On the instant case, at the time of the instant fraudulent act, there are lessees who have the right to preferential reimbursement of the deposit for lease under the Housing Lease Protection Act, including dd, fff and gg, etc., and they have obtained the right to preferential reimbursement by obtaining a fixed date prior to the statutory due date of the Plaintiff’s tax claim or by satisfying the requirements of small-sum lessee who is entitled to preferential reimbursement under the Housing Lease Protection Act. Since the fact that the Defendants, the beneficiary and the subsequent purchaser after the instant fraudulent act, performed the obligation to return the deposit for lease to DD with the right to preferential reimbursement, the restitution following the revocation of the fraudulent act shall be made by means of compensation for value.

C. Scope of compensation for value

1) Relevant legal principles

In a case where a juristic act on a certain real estate constitutes a fraudulent act, in principle, the said fraudulent act shall be revoked and the order shall be issued to recover the real estate itself, such as the cancellation of the registration of transfer of ownership: Provided, That in a case where the return of the original object is impossible or considerably difficult, an order for compensation equivalent to the value of the object of the fraudulent act shall be issued as a performance of the duty to restore the original property. In such a case, compensation for the value shall be ordered to compensate for the amount within the extent of establishing the fraudulent act as a joint security of the general creditors (see, e.g., Supreme Court Decision 2003Da40286, Dec. 12, 2003). As such, in a case where the relevant real estate has opposing power under Article 3(1) of the Housing Lease Protection Act and has the right to preferential reimbursement of a specified amount of the lease deposit with the fixed date on the lease contract, or a lessee who has the right to preferential reimbursement of a specified amount of the lease deposit with the right to preferential reimbursement from the value of the real estate to be deducted (see, 95Da.

Meanwhile, barring any special circumstance, where co-owners of a building jointly lease a building and receive a lease deposit, such lease does not lease their own shares, but is jointly leased as multiple parties, and the obligation to return the lease deposit constitutes an indivisible obligation by nature (see Supreme Court Decision 98Da43137, Dec. 8, 1998). Therefore, in cases where a debtor, among co-owners of a house where one of the co-owners has a right to lease a house from all the co-owners and have a right to preferential reimbursement for the lease deposit, disposes of his/her own shares, the liability property provided to the joint security of the general creditors is limited to the remainder after deducting the total amount of the claim for return of the lease deposit with the right to preferential reimbursement (see Supreme Court Decision 2007Da29119, Jul. 26, 2007). Such legal principle also applies to cases where an agreement between co-inheritors on division of inherited property, the heir’s rights and obligations of which have been succeeded due to the death of the owner prior to the termination of the lease agreement, as a beneficiary and the heir’s share.

2) Determination

In this case, the joint collateral value of the object of the fraudulent act of this case is only the remaining part which deducts the total amount of the lease deposit with preferential right to payment at the time of consultation on division of the inherited property of this case from the value as of the date of closing of argument in the trial of bB's shares of the inheritance

On April 20, 2016, the market price of each real estate of this case, which is close to the date of the closing of argument in the trial of the political party, is as seen earlier, and is confirmed to be the same amount as the market price of each real estate of this case as of the date of the closing of argument in the trial of the political party. As of the date of the closing of argument in the trial of the political party, the value of 1/5 of the inheritance shares of bB among each real estate of this case as of the date of the closing of argument in the trial of the political party, shall be xx (=xxxxxxxxxxxxxx). Furthermore, the sum of the lease deposits with preferential rights to payment of each real estate of this case at the time of the consultation on the division of inherited property of this case, shall be xxxxxxxx. Therefore, the joint collateral

Ultimately, as seen earlier, since xx members of the Plaintiff’s preserved claim amount exceeds xx members of the joint collateral value of the instant fraudulent act, compensation for value should be limited to x members.

3) Determination as to the defendants' assertion of additional deduction

The Defendants asserted that the above KRW 25,00,00 of the small-sum deposit with preferential payment right under the Housing Lease Protection Act should be deducted from the amount to be compensated by the Defendants, since hhh entered into a lease contract on the second floor of the instant building upon the consultation on division of the inherited property, and completed the move-in report on April 10, 207. The Defendants asserted that the above KRW 25,00,000 should be deducted from the amount to be compensated by the Defendants. In full view of the purport of the arguments in the first instance court's fact-finding on the BB Resident Center of the instant building, even though hhh entered into and completed the move-in report on the second floor of the instant building at the time of the consultation on division of the inherited property, it may be recognized that the above lease deposit was insufficient to acknowledge the fact-finding as alleged by the Defendants, and there is no other evidence to acknowledge this. Therefore, the Defendants' assertion as above cannot be accepted.

D. Sub-determination

Therefore, the agreement on the division of the inherited property of this case between Defendant Aa and the debtor BB on one-fifth portion of each of the instant real property shall be revoked within the limit of x members, and the beneficiary Defendant Aa and the subsequent purchaser BB are jointly liable to pay to the Plaintiff damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day following the day this judgment became final to the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim for the revocation of the fraudulent act and restitution against the defendants of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, part of the appeal by the defendants is accepted, and the part against the defendants exceeding the part cited as above in the judgment of the court of first instance is revoked, and the plaintiff's claim against the defendants corresponding to the revoked part is dismissed, and since the remaining appeal by the defendants is without merit, it is dismissed as