[1] Requirements for exceptionally becoming a preserved claim against the obligee's right of revocation where a claim not yet established at the time of the fraudulent act

[2] The case holding that, in a case where a taxation claim was not yet established at the time of a fraudulent act, but before that time, a provisional park was appropriated in a company where the tax obligor substantially represented, and the tax authority disposed of the above provisional park as a result of recognizing the tax obligor and imposed global income tax by disposing of it, the above taxation claim can be the preserved claim of the obligee's right because the basic legal relationship had already occurred at the time of the inclusion of the provisional park, the near future claim was highly probable, and the claim was established due to the realization of the probability, and the claim was established

[1] In principle, a claim that can be protected by the obligee's right of revocation needs to be protected prior to the occurrence of an act that could be viewed as a fraudulent act, but there is a high probability that at the time of the fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of the claim, and that the claim should be established in the near future in the near future. In a case where the probability is realized in the near future and where the claim has been established, the claim may also become a preserved claim

[2] The case holding that, in a case where a taxation claim was not yet established at the time of a fraudulent act, but before that time, a provisional park was appropriated in a company where the tax obligor substantially represented, and where the tax authority disposed of the above provisional park as a result of the recognition of the tax obligor and imposed global income tax by disposing of it, the above taxation claim is held that the above basic legal relationship had already occurred at the time of the inclusion of the provisional park, the near future claim was highly probable, and the claim was established due to the realization of the probability and the claim was established, so the obligee's right of revocation can be the preserved claim

[1] Article 406 (1) of the Civil Code / [2] Article 406 (1) of the Civil Code, Article 30 of the National Tax Collection Act

[1] Supreme Court Decision 95Da27905 delivered on November 28, 1995 (Gong1996Sang, 173), Supreme Court Decision 97Da3434 delivered on October 28, 1997 (Gong1997Ha, 3642), Supreme Court Decision 2000Da17346 delivered on June 27, 200 (Gong200Ha, 1759)

Korea

Defendant

Daejeon High Court Decision 99Na4571 delivered on June 14, 2000

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

We examine the grounds of appeal.

1. On the second ground for appeal

According to the reasoning of the judgment below, the court below determined as of October 30, 1996, the issue of whether the requirements for the fraudulent act in this case were met shall be determined as of the time of promise to sell and purchase, which is the juristic act that caused it, and since the tax claim and obligation to pay income tax are established by receiving a notice of change in the amount of income that is recognized and recognized as the disposal of income in the establishment of the tax claim and obligation by disposal of income, the plaintiff's tax claim shall be established on June 1997, when the head of the tax office affiliated with the plaintiff delivers the non-party a notice of change in the amount of income under the Corporate Tax Act to the non-party who was subjected to the bonus disposition under the Corporate Tax Act, and it cannot be deemed that the plaintiff's tax claim in this case or the legal relation that forms the basis for the tax claim in this case was established

Although 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 could be viewed as a fraudulent act in principle, there is a high probability that at the time of the fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of the claim, and that the claim should be established in the near future. In the near future, where a claim has been created due to the realization of the probability in the near future, the claim may also become a preserved claim (see, e.g., Supreme Court Decisions 95Da27905, Nov. 28, 1995; 97Da34334, Oct. 28, 1997).

Even according to the facts established by the court below, since the head of tax office effective from October 7, 1996 to October 17, 1996 found the fact that the above non-party calculated the provisional park in the taxable year 193, 1994, and 195 through the corporate tax investigation of the non-party Changcheon Construction Co., Ltd. (hereinafter referred to as the "non-party 1"), which is the actual representative, the above non-party. The above provisional park was disposed of in the above non-party's recognition of the above non-party 1, 28 December 1996, and the Dobong Tax Office notified the non-party 1, 1996 of the changes in the amount of income to the above non-party 1, the tax claim of this case was established on June 30, 194, and the non-party 1, 1998, which was highly probable that the tax claim of this case will be reverted to the non-party 1, 1997.

Nevertheless, the court below held that the taxation claim of this case cannot be the preserved claim of the obligee's right of revocation on the ground that the basic legal relationship of the taxation claim of this case or its taxation claim was not established at the time of the fraudulent act of this case, and it is difficult to view that the taxation claim of this case could not be the preserved claim of the obligee's right of revocation and that there was a high probability of the occurrence of the claim. Accordingly, the court below erred by misapprehending

2. On the third ground for appeal

According to the reasoning of the judgment of the court below, the court below acknowledged the fact that real estate listed in the judgment of the court below (attached Form 2) other than the above non-party's active property was listed in the second list of the court below, and rejected the plaintiff's assertion that the purchase and sale reservation of the real estate of this case constitutes a fraudulent act on the ground that the officially announced value of the real estate listed in the 7th list of the same list 1998 was approximately KRW 20,593,510, and the officially announced value of the real estate listed in the 8th list of the same list was approximately KRW 50,000,000 as of November 15, 1996, and that there was a mortgage establishment of the maximum debt amount of KRW 150,000,000 on the real estate stated in the 7th list and 8th list of the same list was insufficient to recognize that the non-party disposed of the real

However, according to the facts and records established by the court below, the non-party had already transferred the real estate Nos. 1 and 2 in the same list at the time of the promise to sell and purchase this case. The real estate Nos. 7 and 8 had the value of KRW 20,593,510 according to the officially assessed individual land price, and KRW 50,000,000. It was difficult to view that the balance remains because it has been secured by each maximum debt amount exceeding the value of KRW 150,000,000. The tax liability of this case for which the creditor’s creditor’s creditor’s right of revocation could be a preserved claim was 245,080,420 won or more, and the non-party had been pressured from the beginning of 196 to December 11, 1996 and did not incur a shortage of joint security without examining the value of the said list No. 3,4,55, and6 real estate.

Nevertheless, the court below held that the reservation of this case does not constitute a fraudulent act because it could not be deemed that there was a shortage of joint security without examining the value of real estate Nos. 3, 4, 5, and 6 of the same list. The court below erred by failing to exhaust all necessary deliberations or by misapprehending the legal principles as to the right of revocation, and the ground of appeal pointing this out has merit.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)