Daegu District Court Decision 2015Kadan12751 (No. 17, 2016)

Revocation of Fraudulent Act

The fact that the registration of ownership transfer of land has been completed during the period of tax investigation is insufficient to recognize that it is a title trust.

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

2016Na304971 Revocation of Fraudulent Act

Korea

Note E

2016.05.17

2017.03.23

2017.04.27

1. The plaintiff's appeal and the conjunctive claim added in the trial are all dismissed.

2. The costs of the lawsuit after the appeal shall be borne by the Plaintiff.

1. Purport of claim

On the other hand, the defendant will implement the registration procedure for ownership transfer with respect to the POO's size on the POO's size on the PO's scale on the PO's scale on the PO's scale on the PO's scale on the PO's scale on the PO's scale on the PO's scale on the PO's scale on the PO's scale on the PO's scale on the PO's scale on the PO and the defendant on November 4, 200. The defendant will implement the registration procedure for ownership transfer on the PO's scale on the PO (the plaintiff added the preliminary

2. Purport of appeal

The judgment of the first instance shall be revoked. The same shall apply to the entries in the primary claim.

1. Facts of recognition;

가. 추CC은 20OO. 3. 13. 자신 소유인 경주시 진현동 OOO 토지(이하 '이 사건 양도 부동산'이라 한다)를 양도한 후 양도가액을 과소신고하여 20OO. 9. 17.부터 20OO.10. 5.까지 QQ세무서로부터 양도소득세 조사를 받았다.

B. On September 26, 200, QCC completed the registration of transfer of ownership on October 2, 2000, when it completed the registration of transfer of ownership on the basis of the pre-sale agreement with respect to the land of Jin-dong OO-dong OO-dong OO-dong (hereinafter “instant land”).

C. On December 1, 200, the Plaintiff notified QCC of KRW 153,516,920 of the transfer income tax on the instant transferred real estate, and as of August 31, 200, the date of the instant lawsuit, the Plaintiff did not pay it, and the Plaintiff had a taxation claim of KRW 211,546,220.

D. On December 2, 200, KimD completed the registration of ownership transfer on the land of this case to the Defendant on November 4, 2000.

E. Meanwhile, the QCC operated a restaurant from July 16, 200 to March 15, 2000, and the Defendant is the fraud of the QCC.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 4, 6 and 7, and purport of the whole pleadings

2. Judgment on the main claim

(a) Grounds for claims;

Since RCC re-titles the Defendant after the title trust and termination of the instant land to KimD, the real owner of the instant land is the CC. Therefore, the Defendant is obligated to obtain the registration of ownership transfer based on the restoration of real name with respect to the instant land, and the Plaintiff, as a creditor of RCC, needs to seek the registration of ownership transfer by subrogation for the Defendant.

B. Determination on the main defense of this case

1) The defendant asserts that the period of extinctive prescription of the right to impose and collect capital gains tax is five years, and that the period of extinctive prescription is 200O, June 1, 200, which is the next year following the transfer of the real property of this case, which is the expiration date of the final return of capital gains tax, and that since the plaintiff's right to collect capital gains tax against QCC has expired due to the expiration of extinctive prescription, the plaintiff's claim of this case, the right to collect capital gains tax

2) Whether there exists a creditor’s right to the debtor to be preserved by subrogation in a creditor subrogation lawsuit is an ex officio matter by the court as a requirement for a lawsuit (see, e.g., Supreme Court Decision 2009Da3234, Apr. 23, 2009). Thus, the Defendant’s assertion is determined on the basis of the main safety defense.

The third obligor cannot set up against the obligee in the creditor subrogation lawsuit, and the third obligor cannot set up against the obligee any defense that the obligee has against the obligee, and the person entitled to invoke the extinctive prescription when the extinctive prescription of the claim has been completed is, in principle, a person who receives the benefit of prescription, and the third obligor in the creditor subrogation lawsuit cannot exercise it (see, e.g., Supreme Court Decision 2001Da10151, Feb. 12, 2004). Unless there is any recourse by the obligor in the creditor subrogation lawsuit, it is not necessary to consider whether the extinctive prescription has expired in determining the existence of the Plaintiff’s claim against the PCC (see, e.g., Supreme Court Decision 2009Da104113, Apr. 29, 2010)

C. Judgment on the merits

The fact that RCC underreporting the transfer income tax to the Plaintiff is liable for tax liability, the fact that RCC completed the registration of ownership transfer of the instant land to KimD during the period during which the tax investigation related to the said transfer income tax was conducted, and the fact that the Defendant was the fraud of RCC was recognized as above. However, the above facts and the evidence submitted by the Plaintiff alone are insufficient to recognize that RCC entrusted the title of the instant land to KimD or the Defendant, and there is no other evidence to acknowledge this otherwise, and the Plaintiff’s above assertion is without merit.

3. Determination on the conjunctive claim

(a) Grounds for claims;

The act of PCC, the sole property of which was in excess of its obligation, terminated the title trust and then sold the instant land to the Defendant constitutes a fraudulent act. Thus, the Defendant is obliged to cancel the sales contract on November 4, 200, which was concluded between PCC and the Defendant with respect to the instant land, and the Defendant is obliged to complete the registration of ownership transfer based on the restoration of authentic title as to the instant land to its original state.

B. Determination

The evidence submitted by the Plaintiff alone is insufficient to recognize that the RCC trusted the instant land to KimD, or that the sales contract was concluded on November 4, 200 with respect to the instant land between the estimatedCC and the Defendant, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s above assertion is without merit.

4. Conclusion

Therefore, the plaintiff's primary claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just, and the plaintiff's appeal shall be dismissed as well as the preliminary claim added in the trial shall be dismissed as it is without merit. It is so decided as per Disposition.