Seoul Northern District Court-2013-Ga-106656 ( October 13, 2015), Seoul Northern District Court-201

in excess of debt, selling real estate to his or her husband in lieu of satisfaction of the loan shall constitute a fraudulent act.

Where the obligor’s assets are insufficient to fully repay the obligor’s assets, barring special circumstances, if the obligor provided the assets to a certain obligee as payment in kind or as collateral, it would constitute fraudulent act in relation to other obligees, and the same applies even if the obligor’s assets provided as payment in kind or as collateral are not the only assets of the obligor,

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

2015Na30709 Revocation of Fraudulent Act

Korea

KimA

Seoul Northern District Court Decision 2013Ra106656 Decided January 13, 2015

August 28, 2015

September 18, 2016

1.The judgment of the first instance shall be modified as follows:

With respect to real property listed in the Schedule:

A. Revocation of a sales contract concluded on November 25, 2010 between the Defendant and KimB; and

B. The Defendant shall comply with the procedure for registration of cancellation of ownership transfer registration that was completed by the Seoul Northern District Court’s Northern District Court’s receipt of December 9, 2010 as of December 9, 2010 by KimB.

2. The costs of the lawsuit are assessed against the Defendant in both the first and second instances.

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

The 19 residents, such as OOOO-dong 354-8, 354-12, who had resided in the above 354-12 multi-households, agreed to remove the above multi-households and to subcontract the construction of multi-households and multi-households and apartments on the ground (hereinafter referred to as the "the construction of this case") to KimB, and to pay in lieu of the payment of the construction cost, 11 households and two households (201, 204) out of the multi-households and apartments (201, 204) among the multi-households to KimB.

나. 별지 목록 기재 부동산(이하 '이 사건 부동산'이라고 한다)에 관하여 2008. 4. 7. 이DD의 가처분 신청에 따른 촉탁으로 김CC, 김EE, 라FF, 서GG, 손HH, 유II, 윤JJ, 이KK, 이LL, 전MM, 전NN, 정PP, 한QQ, 현RR(이하, 김CC 등'이 라고 한다) 명의의 소유권보존등기(지분비율 각 1/14)가 마쳐졌다(대지권등기는 이루어지지 않았다).

C. On December 9, 2010, KimB completed the registration of transfer of the entire shares of co-owners from KimCC, etc. on the instant real estate for which the registration of the ownership of the instant real estate has not yet been made, due to the payment agreement in lieu of the owner on December 2, 2005, and on November 25, 2010 (hereinafter "the instant sales contract"), KimB completed the registration of transfer of the ownership of the instant real estate (hereinafter "the instant registration of transfer of ownership") on the ground of the sale agreement as of November 25, 2010 (hereinafter "the instant sales contract"), which is a parent, in excess of the debt.

라. 그 후 이 사건 부동산의 대지인 서울 OO구 OO동 354-12 대 779.8㎡ 중 합계 1500.3분의 81.878 지분(이하 '이 사건 대지권 토지'라고 한다)에 관하여 2011. 8. 5. 손HH, 서GG, 김EE, 전MM, 정PP, 한QQ, 이LL, 전NN, 유II(이하 '손HH 등'이라 한다)으로부터 피고에게 2011. 7. 20.자 대물변제약정을 원인으로 한 지분이전등기가 마쳐졌고, 같은 날 이 사건 부동산에 관한 대지권등기가 마쳐졌다.

E. KimB is delinquent in national taxes against the Plaintiff as of April 2, 2013 (hereinafter “instant taxation claims”).

F. Meanwhile, among the creditors against KimB, one of the parties to the subcontract as described in the above AB and the creditors against KimB, one of the parties to the subcontract as described in the above A, alleged that the contract in this case was null and void as a anti-social legal act to evade fraudulent act, conspiracy, or compulsory execution, and filed a lawsuit against the defendant for the cancellation of the contract in this case, which is a fraudulent act, and to seek the implementation of the procedure for cancellation of ownership transfer registration, as restitution. The court of first instance (Seoul Central District Court 2011Da156047) dismissed the claim of KimCC on the ground that KimB's insolvency as of the date of the closing of argument at fact-finding, but the appellate court (Seoul Central District Court 2012Na58912) rejected the claim of the Supreme Court on the ground that KimB's bankruptcy as of the date of closing of argument at fact-finding, and that the above contract constitutes a fraudulent act, the subject matter of the above contract, including the site ownership, was also included in the building of this case, and the right to site ownership.

Facts without any dispute, Gap 1 through 8, 12 through 16, Eul 1 through 4, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Determination

A. The plaintiff's assertion

The KimB concluded a sales contract of this case with the defendant, his father, and completed the registration of transfer of ownership in order to escape the plaintiff from the disposition of default on national taxes such as the above, although the above national taxes were not paid, the KimB did not pay it. This constitutes a fraudulent act, and the defendant was also aware of such fact. Thus, the defendant is obligated to cancel the sales contract of this case and restore the original state to its original state, and the defendant is obligated to implement the procedure for the registration of cancellation

B. Establishment of fraudulent act

Where a debtor’s property is insufficient to fully repay his/her obligation, and where the debtor provided his/her property as payment in kind or as a collateral to a certain creditor, barring any special circumstance, it would directly compromise the interests of other creditors and thereby constitute a fraudulent act in relation to other creditors. The same applies to cases where the debtor’s property provided as payment in kind or as a collateral is not the debtor’s exclusive property, or falls short of the amount of the claim (see, e.g., Supreme Court Decisions 2007Da18218, Jul. 12, 2007; 2008Da85161, Sept. 10, 2009).

In full view of the aforementioned facts and the purport of the entire pleadings, the instant taxation claim was established prior to the conclusion of the instant sales contract, which was alleged as fraudulent act by the Plaintiff, and thus, can be a preserved claim for obligee’s right of revocation. Since KimB had already failed to secure joint debt due to excess of debt, sale of the instant real estate in lieu of repayment of loan to the Defendant, his/her husband, who was his/her husband, in short of joint collateral, the instant sales contract constitutes fraudulent act. Meanwhile, the instant sales contract constitutes a fraudulent act. Meanwhile, the following circumstances acknowledged by the foregoing evidence are as follows: ① KimB had already concluded the instant sales contract prior to the transfer of ownership of the instant real estate from KimCC, etc.; ② transferred the ownership registration to the Defendant on December 9, 2010 on the date of transfer of ownership of the instant real estate; ② before KimB acquired the ownership of the instant real estate from an investigative agency for the crime of evading compulsory execution; ③ in the process of disposal of the instant real estate, KimS-B’s obligation to the instant apartment, but did not have been registered in his/her name.

(c) Revocation of fraudulent act and reinstatement;

Therefore, the sales contract of this case concluded by the defendant with KimB shall be revoked as a fraudulent act, and the defendant shall be obligated to implement the procedure for cancellation registration of transfer of ownership to this case's real estate to KimB due to restitution to its original state.

In this regard, the defendant asserts that since the subject matter of the sales contract of this case is appropriate for the part of the building except the site ownership, the part of the site ownership of this case should be excluded from the subject matter of revocation

(5) In light of the above facts, the above contract was concluded on November 25, 2010, and the ownership transfer registration for the above real estate was 00 million won, and the ownership transfer registration for the above real estate was completed on July 20, 201, under the condition that the ownership transfer registration for the above real estate was not registered on December 9, 2010, and the ownership transfer registration for the above real estate was completed on August 5, 201, and the ownership registration for the above real estate was made on the ground that the above 100 million won was 10 billion won for the sale of the above real estate and the ownership transfer registration for the above real estate was made on the 2000 million won for the sale of the above real estate. However, in light of the above facts, the above 200 million won interest for the real estate was stated on the 100 million won interest for the above real estate and the above 100 million interest for the real estate was stated on the 100 billion interest interest for the defendant (B).

3. Conclusion

Therefore, the contract between the defendant and KimB on November 25, 2010 constitutes a fraudulent act, and the defendant has a duty to implement the procedure for the cancellation registration of ownership transfer registration completed on December 9, 2010 with respect to the real estate of this case to KimB. Thus, the plaintiff's claim of this case is justified, and the judgment of the court of first instance partially different judgment is unfair, and it is so decided as per Disposition by accepting the plaintiff's appeal and changing the judgment of the court of first instance along with the above recognition.