In principle, a debtor's transfer of active property to some of the creditors as payment in kind constitutes a fraudulent act in relation to other creditors.

The defendant's act of selling the real estate in this case to the one billion won leased by the defendant is a fraudulent act, and since it is difficult to view the delinquent as the debtor against the defendant, the defendant's malicious act is presumed to be the defendant's act of selling the real estate in this case as payment in lieu

Article 24 of the National Tax Collection Act

2017 Ba61562 Revocation of Fraudulent Act

Korea

AA

on October 28, 2019

on October 15, 2019

1. The sales contract concluded on July 24, 2017 between the Defendant and BB regarding the real estate listed in the separate sheet shall be revoked.

2. The Defendant shall comply with the procedures for registration of cancellation of ownership transfer registration, which was completed by the Jeju District Court No. 76152, July 24, 2017, with respect to the real estate listed in the separate sheet, to BB.

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

The same shall apply to the order.

1. Facts of recognition;

(a) The occurrence of a preserved claim;

1) The head of Jeju Tax Office under the Plaintiff’s control issued a payment notice of KRW 00,00,000,000, out of global income tax for interim prepayment for 2016, to BB engaged in a new construction and sale business of a building, and issued a payment notice for the remainder of KRW 00,000,000 to February 28, 2017, and issued a payment notice until July 28, 2017, upon deferment of collection, until the due date for payment until July 28, 2017, and issued a payment notice for the final global income tax for 00,000,000 (or interim tax for interim prepayment for 200,000,000) to BB as of August 25, 2017. The payment notice was served to BB as of the date of service listed in the notice for payment notice as set out in paragraph (3) below.

2) BB is an oligopolistic shareholder of DDD Co., Ltd. (hereinafter referred to as "DD") and EE Integrated Construction Co., Ltd. (hereinafter referred to as "EE Construction"). Since each of the above companies was unable to pay the relevant corporate tax within the payment period specified in the table in paragraph (3) below, the head of Jeju Tax Office, the Plaintiff-affiliated Tax Office, on September 4, 2017, designated BB as the secondary taxpayer and issued a notice of payment to BB of the pertinent corporate tax for which BB is liable for secondary tax payment, on September 24, 2017. The notice of payment was served to BB as indicated in the notice of payment notice in the table in paragraph (3) below.

3) As of October 11, 2017, national taxes in arrears, including the additional dues, BB, as of October 1, 2017, are the total of KRW 00,000,000 in the entry in the arrears column in the following table.

(b) BBB’s disposal;

On July 24, 2017, the Defendant entered into a sales contract between the Defendant and the Defendant to sell for KRW 300 million the real estate listed in the separate sheet owned by BB (hereinafter “instant real estate”) (hereinafter “instant sales contract”) and the Defendant completed the ownership transfer registration (hereinafter “instant transfer registration”) on July 24, 2017 as the Jeju District Court received on July 24, 2017.

(c) The debt excess status of BB;

BB also owned 00,000,000,000,000 won on September 2, 2015, in addition to the instant real estate at the time of the instant sales contract. However, the tax liability against the Plaintiff incurred at the time of the instant sales contract is equivalent to that set forth in paragraph (3) of the same Article, as in paragraph (3) of the same Article. In addition, the sum of the maximum debt amount of the right to collateral security set up on the site of 320-10,000,000 won for the aggregate of the maximum debt amount of the said right to collateral security set up on the site of 320-10,000 won during the day of the instant sales contract (CB was considered in light of the market price of the instant site in which the inflation rate was reflected), at that time, BB had already been in excess of

Facts that there is no dispute for recognition, described in Gap's 2 through 15, and 17 through 22, and the purport of the whole pleadings.

2. Determination

A. The existence of the preservation claim of this case

According to the above facts, among the corporate tax of DD and EE Construction at the time of the instant sales contract, the portion for which the payment deadline was July 31, 2017 was the due date for the main tax liability and the secondary tax liability for BB corresponding to the said portion was not yet established. However, the corporate tax period for DD and EE Construction was already terminated in 2016 and at the time BB was in the position of being able to assume secondary tax liability as the oligopolistic shareholder of DD and EE Construction at the time of the instant sales contract. As such, there was a legal relationship that serves as the basis for establishing the tax claim for BB, which is the second taxpayer of the Plaintiff at the time of the instant sales contract, and it was highly probable that the claim was due to the close legal relationship in the near future, and thus, the tax claim against BB, the secondary taxpayer, including the above claims, was created in the near future, and thus, the creditor's right of revocation was all preserved as of October 10, 2017.

B. Whether the fraudulent act was established

1) An act of a debtor who is in excess of his/her obligation by way of payment in kind to some of the creditors constitutes a fraudulent act in principle in relation to other creditors, unlike the case where a debtor makes repayment according to the principal place of obligation to a specific creditor (see Supreme Court Decision 2012Da43546, Sept. 13, 2012).

2) Since the Defendant leased KRW 1 billion to BB and CCC and received the instant real estate as payment in lieu of part of the loan, the Defendant’s assertion alone constitutes a fraudulent act in relation to the Plaintiff, who is another creditor, barring any special circumstance. Furthermore, according to the evidence No. 12, the Defendant’s loan to DD on April 5, 2017 by setting the interest rate of KRW 1 billion at 3% per annum, interest rate of KRW 25% per annum, and interest rate for delay, and maturity date of repayment as April 4, 2018. The CCC on behalf of DD on April 5, 2017, if DD did not immediately perform its obligation to the Defendant, it is difficult to deem BB as the obligor against the Defendant.

3) If circumstances are like this, it is reasonable to deem that BB, the debtor, was aware of the circumstances that it would prejudice the general creditor like the plaintiff by the instant sales contract, and the defendant, the beneficiary, is presumed to be malicious.

4) On this basis, the Defendant asserts that the instant real estate was seized on the ground that BB was delinquent, and that the instant registration of ownership transfer was made normally after the Plaintiff revealed that the Plaintiff’s claim was extinguished by cancelling the said registration upon the payment of delinquent tax by BB, and that BB did not know at all the tax claim, which is the preserved claim, and that the Defendant was unaware of the fact that the instant sales contract could not be known, and thus, the Defendant did not know that it would prejudice the general creditor.

According to the evidence evidence Nos. 13 and 16, the Plaintiff seized the instant real estate on October 6, 2016 on the grounds that BB was delinquent in capital gains tax and value-added tax for the first period of January 6, 2016, but BB paid both capital gains tax of 00,000,000, including additional tax, and value-added tax of 0,000,000,000, including the above seizure on January 18, 2017, it can be recognized that the above seizure registration of the instant real estate was cancelled on January 20, 2017. However, the Plaintiff did not know that BB was a bona fide beneficiary of the notice of tax payment on February 28, 2017, and it cannot be deemed that BB had any further knowledge of BB’s taxation claims including interim prepayment income tax for the year 2016.

Therefore, the defendant's above assertion is without merit.

C. Sub-committee

Therefore, the act that BB sold the instant real estate to the Defendant by accord and satisfaction shall be revoked by fraudulent act, and the Defendant is obligated to cancel the registration of transfer of ownership of the instant real estate completed in the name of the Defendant to BB due to restitution to its original state.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.