Whether the acquisition of loan obligations, etc. after the purchase of the right of sale constitutes a fraudulent act

Even if a part of the purchase price of an apartment is paid directly after the purchase of the right to sell the apartment, it constitutes a fraudulent act, barring any special circumstances, as in the case of payment in kind to a specific creditor under excess of the obligation.

Article 406 of the Civil Code, Right of Revocation

1. The contract of sale on June 14, 2004 between the defendant and the non-party CO shall be revoked.

2. The defendant shall pay to the plaintiff 213,811,340 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

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

The same as the disposition (the June 16, 2004 is deemed to be the error of June 14, 2004).

1. Basic facts

(a) Formation and notice of tax claims;

(1) In the tax investigation conducted on the non-party O-Technology Investment Company (hereinafter referred to as the "O-Technology Investment") from May 17, 2004 to June 14, 2004, the non-party CO, who was the representative of O-Technology Investment, verified the omission of the capital gains tax and securities transaction tax on the non-indicted 1, 200 and 201, transferred the non-listed stocks owned by the non-party CO while operating the O-Technology Investment from November 4, 199 to March 20, 201.

(2) On June 25, 2004, the head of the OO tax office notified the head of the OO having jurisdiction over the domicile of the OO to notify the O of the transfer income tax and the securities transaction tax, and the head of the OO tax office notified the O of the tax amount as listed below.

Table 1

Net

Sub-Items :

Date of Notice

Deadline for payment

guidance.

This tax

Additional Dues

Year of Reversion

1

Securities Transaction Tax

204.71

7.31

62,310

60,500

1,810

6. 201.06

2

Securities Transaction Tax

204.71

7.31

15,282,480;

14,837,360

45,120

201.02

3

Securities Transaction Tax

204.71

7.31

815,760,

792,000

23,760

200.04

4

Securities Transaction Tax

204.71

7.31

14,127,610

13,564,670

562,940

200.12

5

Transfer Income Tax

204.71

7.31

183,523,180

178,177,850

5,345,330

200.01

guidance.

213,811,340

207,432,380

6,378,960

(3) Meanwhile, in the process of the above tax investigation, O submitted each written confirmation confirming omissions twice on March 17, 2004 and May 6, 2004 to the public official in charge of the tax investigation, and the head ofO notified the O on May 24, 2004 that O will impose national taxes on the O according to the results of the tax investigation.

(b) Sale of sales tickets;

On the other hand, on June 27, 2001, Austria filed a claim for the registration of ownership transfer (hereinafter referred to as the "sale contract of this case") against the defendant, who is the wife, on June 14, 2004, to sell the apartment in the attached Form (hereinafter referred to as the "multi-unit apartment of this case"), and obtained the approval of the selling company on the 16th day of the same month. On September 9, 2004, the defendant succeeded to part of the part of the part of the intermediate payment loan, and completed the registration of ownership transfer as to the apartment of this case.

(c) The status of the property of Austria;

(1) At the time of selling the right to sell the apartment of this case to the Defendant, active and passive properties are indicated below.

Table 2

Active Property

Petty Property

Property

Value;

Obligations

Amount

○○○-si ○○-do 63-8 Forest land 6,191 square meters, among 132/6,191 square meters, 132/6,191 shares.

1,162,920

Tax Liabilities of this case

213,811,340

The sales right of the apartment of this case

260,000,000

○ Obligations for Investment

1,178,726,836

○ Investment Shares 3,740 Shares

2,105,620

Consolidateds

263,268,540

Consolidateds

1,392,538,176

(2) On the other hand, the defendant asserts that, at the time of selling the apartment sales right of this case, it was not in excess of the debt because it held ① 22,00 shares issued by OOO Co., Ltd., ② 187,500,000 investment bonds issued by OOO Co., Ltd., ② 187,50,000 investment bonds issued by OO venture Korea Co., Ltd., ③ 50,000 bonds issued by OO Co., Ltd., ④ 3,740 shares of OO Co., Ltd., and thus did not

① As of June 30, 2005, the shares issued by the above OOO Co., Ltd. are not recognized as holding in 2003 and 2004, and there is no substantial property value by the above OOO Co., Ltd.’s closure of business as of June 30, 2005 (Evidence 18-1 through 4), ② the above investment association was established by OOO investment, and the investment association was returned to its members upon dissolution of the above investment association around July 2001 (Evidence 22-2), ③ the above OO’s claim against the above OO appears to have been repaid before the sales contract of the instant sales right was concluded in accordance with the redemption schedule (Evidence 7-3), and ④ the value of the shares of OO Co., Ltd., an Association-registered corporation, as seen in Table 2 (Evidence 19-2).

On the other hand, at the time of selling the apartment house of this case, the AO bears the amount of 2.1 billion won against the OOO corporation, and even if it recognizes all the fact of holding the claim of 1 billion won against the ODML company, it bears the obligation of 1.1 billion won or more (Evidence A No. 22-1, 2).

[Identification Evidence] Evidence Nos. 1, 2, 3, and 4, Evidence No. 13-2, Evidence No. 14-2, Evidence No. 15, Evidence No. 17-1, 2, 3, 4, each entry, appraiser’s appraisal result, and appraiser’s ODM market appraisal result

2. Judgment on the claimant

A. Establishment of fraudulent act

(1) According to the facts established above, the obligee’s right of revocation of this case’s right of revocation is a tax obligation of capital gains tax and securities transaction tax to be paid to the Plaintiff between January 14, 2000 and June 2001, which is the date of the sales contract of this case, and as a result, the obligee’s right of revocation of apartment sale in this case’s right of apartment sale in this case’s possession in excess of its obligation, reduced joint security by selling it to the Defendant, the wife, and thus, it constitutes a fraudulent act detrimental to the Plaintiff.

(2) In the process of the tax investigation conducted by the OO on the O technology investment whose representative is the OOO, from May 7, 2004 to June 14, 2004, the OO confirmed that it did not report the transfer income tax and the securities transaction tax even if it transferred the unlisted stocks and did not report the transfer income tax and the securities transaction tax, and the OO prepared a confirmation document confirming the above facts two times and submitted it to the investigating official, and it is sufficiently confirmed that the above tax liability should be imposed immediately, even if it is anticipated that it would have sold the apartment purchase right of this case, and it is presumed that the Defendant, the beneficiary, has the intention to know.

B. Judgment on the defendant's assertion

(1) The assertion that there was no intention of deception

As to this, the defendant knew at the time of selling the apartment sale right of this case, it was no delinquent tax due to the tax office's receipt of the refund of national tax from the tax office. The defendant asserted that the apartment sale right of this case was purchased at the market price, the debt of KRW 115 million for the lease deposit, KRW 100 million for the lease deposit, KRW 115 million for the lease deposit, and KRW 215 million for the apartment mortgage loan, and the defendant paid part of the purchase price. In light of the fact that the defendant paid part of the purchase price, it does not constitute a fraudulent act or

First, even if the Defendant directly paid a part of the purchase price of the apartment unit after the purchase of the apartment unit in this case and acquired the loan obligation, it is a fraudulent act that reduces joint security in relation to other creditors, unless there are other special circumstances, as in the case of payment to a specific creditor in excess of the debt.

Next, it is insufficient to recognize that the descriptions of Eul evidence Nos. 1, 2, 3, 4, and Eul evidence Nos. 2-2, Eul evidence Nos. 3-1, 2, and 4 did not intend to harm the defendant.

Rather, in light of the following: (a) the instant sales contract: (b) although the Defendant agreed to pay the unpaid remainder to the selling company by succession, the Defendant actually deposited the ownership of the instant apartment in lieu of the OO on behalf of the OO (Evidence No. 11, No. 1, No. 1, No. 264,298 out of the KRW 100 million of the intermediate payment loan after the instant sales contract; (c) the Defendant is the person of the Defendant who paid the KRW 48,264,298 out of the KRW 100,00,000; and (d) the Defendant did not mention the receipt of the deposit for the deposit (Evidence No. 1, No. 1-1); and (d) the Defendant purchased the ownership of the instant apartment, as the relationship between the OO and the Shi-Nam, and there was no financial burden. The Defendant’s assertion is without merit.

(2) The assertion that the exclusion period has expired

In addition, the Defendant was actively engaged in the collection, such as attaching the above OO forest land to collect the delinquent tax of this case. However, since the Plaintiff reported the transfer income tax from the sale of the real estate in this case to the tax office around July 2004 and paid the transfer income tax and resident tax on August 31, 2004, the Plaintiff was aware of the fact that O sold the apartment sale right of this case on August 31, 2004, and therefore, it is evident that the Plaintiff knew of the fraudulent act by selling the above apartment sale right of this case. Accordingly, the Plaintiff’s obligee’s obligee’s obligee’s obligee’s obligee’s obligee’s obligee’s obligee’s obligee’s obligee’s obligee’s obligee’s obligee’s right was extinguished.

In the exercise of the right of revocation, the date when the obligee becomes aware of the cause for the revocation is the date when the obligee becomes aware of the requirements for the right of revocation, namely, the date when the obligee becomes aware of the fact that the obligor had committed a fraudulent act with the knowledge that it would prejudice the obligee. Thus, it is insufficient to say that the legal act is an act detrimental to the obligee, namely, that the juristic act is an act detrimental to the obligee by simply knowing that the obligor committed a fraudulent act with the knowledge that it would prejudice the obligee. In other words, it is necessary to find out the fact that the obligor was unable to fully satisfy the claim due to the lack of joint security of the claim or the lack of joint security already in the short condition, and further, that the obligor had the intent to mislead the obligee (see, e.g., Supreme Court Decision 2003Da

Therefore, according to the statements in Gap's evidence Nos. 4, 3-1, and 3-2, the plaintiff (OOtax secretary) seized the above O-O-owned forest in order to preserve the above taxation claim on August 27, 2004, and OO-listed made a return and payment of transfer income tax on August 31, 2004 after selling the apartment purchase right of this case, it seems that the plaintiff was aware of the sale of the apartment sale right of this case. However, it is insufficient to recognize that the plaintiff knew that the above sale act constitutes fraudulent act and that there was intention to harm the O-owned. The defendant's above assertion is without merit.

(c) Scope of revocation and methods of reinstatement;

(1) In the event that a sales contract for the right of sale constitutes a fraudulent act, in principle, the entire sales contract is revoked and the right of sale itself shall be restored. However, as in the instant case, where a beneficiary who purchased the right of sale succeeds to a part of an intermediate payment loan and registers the transfer of ownership, the entire sales contract is revoked and the right of sale itself is restored to the portion that was not the joint security of the original creditor, thereby violating the fairness and fairness. Therefore, in such a case, it is reasonable to revoke the fraudulent act only within the scope of the article of the right of sale at the time of the fraudulent act and order the restoration to its original

(2) Therefore, with respect to the scope of cancellation of the instant sales contract and restoration to original state as to the scope of fraudulent act, the fact that the market price of the instant sales right at the time of the instant sales contract is 260,000,000 won is equivalent to 260,000,000 won as seen above. Thus, the instant sales contract between Baro and O must be cancelled within the scope of KRW 213,81,340,000, which is the preserved bond amount within the scope of the market price. Accordingly, the Defendant is obliged to pay the Plaintiff damages for delay calculated at the rate of KRW 213,81,340 and 5% per annum under the Civil Act from the day following the date of confirmation of this judgment

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.