Whether it constitutes a fraudulent act of donation of property transfer proceeds

(1) The act of making a donation of the transfer price of current property in excess of liabilities constitutes a fraudulent act

Article 35

Daegu District Court, Seoul District Court-2015-Kadan-37126 (Law No. 12, 2016)

1. Basic facts

A. On December 12, 2012, ParkA entered into a sales contract with AA to sell each real estate listed in the separate sheet Nos. 1 through (3) of the separate sheet No. 990,000,000,000, which is owned by it, and completed the registration of ownership transfer on December 21, 2012 with the sales proceeds paid at that time. On December 18, 2012, ParkB and the separate sheet Nos. 4 and 5 of the separate sheet Nos. 4 and 5 of the separate sheet sold each real estate at KRW 550,000,000, and completed the registration of ownership transfer on December 20, 201 (hereinafter referred to as the “transferable real estate”).

B. ParkA remitted the wife’s KRW 24,00,000 on December 23, 2012, and KRW 30,000,000 on December 25, 2012, and remitted KRW 50,00,000 on December 24, 2012 to Defendant LbCC (hereinafter “each of the instant payments”).

C. On June 21, 2013, the head of the North Daegu District Tax Office under the Plaintiff-affiliated Tax Office notified ParkA of the pre-announcement of taxation on or around June 21, 2013, and notified on August 1, 2013 that KRW 210,069,055 of the capital gains tax imposed on the instant transfer real estate sales contract should be paid by August 31, 2013, but ParkA did not pay the said amount. However, the capital gains tax for which ParkA was delinquent by August 28, 2016, which was the date of the instant lawsuit, is KRW 271,829,160.

D. On December 23, 2012, before remitting each of the above money to the Defendants, ParkA had no particular property, with the exception of KRW 330,693,862, the deposit balance of the AA bank account.

E. On May 20, 2014, the Defendants completed the procedures for the registration of ownership transfer based on the sale on April 12, 2014 (Defendant HeA’s shares 1300/2686, and Defendant LambCC’s shares 1386/2686) with respect to each real estate listed in paragraphs 4 and 5 of the [Attachment] list Nos. 4 and 5 of the [Attachment].

2. Determination

(a)the existence of preserved claims;

Any claim that may be protected by the obligee’s right of revocation shall, in principle, be derived prior to the fraudulent act. However, at the time of the fraudulent act, the legal officer already serving as the basis for

In the near future, there is a high probability that a claim will be established by the legal relationship, and in fact, where a claim has been established due to the realization of such probability, it may become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2006Da66753, Jun. 29, 2007).

On December 31, 2012, the Plaintiff’s taxation claim was established on December 31, 2012, and it was established after each of the instant payment acts claiming that the Plaintiff was a fraudulent act, as the last day of the month in which the amount constituting the tax base was generated (Article 21(2)2 of the Framework Act on National Taxes).

However, prior to the date of each payment in the instant case, there had already been a legal relationship based on which the sale of the instant transferred real estate and the receipt of the price were made, and ParkA had a high probability of making a decision and notification on capital gains tax and additional tax in the near future due to not entirely performing the preliminary return of capital gains tax base on the instant transferred real estate, as well as the final return and the final return procedure for voluntary payment. In fact, the Plaintiff’s taxation claim in the instant case was established on December 31, 2012, and thus, the Plaintiff’s taxation claim in the instant case becomes a preserved claim for

B. Legal nature of each payment of this case

1) Payment to Defendant HuA

The plaintiff asserts that the payment to the defendant Hea is a gift act, and the defendant Hea claims that it is a division of property according to divorce.

According to the purport of Gap evidence Nos. 4 and Eul evidence Nos. 5 and the purport of the whole pleadings, Defendant Hea shall complete the marriage report with Park Jong-chul on March 8, 1972 and maintain a matrimonial relationship for about 41 years, and he/she shall be found to have completed the agreement divorce report on January 24, 2013.

According to the above facts of recognition, it is reasonable to see that Defendant Hea has terminated the marriage relationship by mixing with Park Jong-A, and there is no other reflective evidence.

However, according to the overall purport of evidence Nos. 1, 7, 10-2, 11, 12, and 4 of evidence Nos. 10-2, 12, and 4, ParkA acquired the transferred real estate during the marriage period from 2004 to 2008, ParkA has tending the household in operating AA machinery from the transferred real estate, and Defendant Hea did not engage in any other economic activity, and provided Nos. 101, 802 as a security for financial institutions of Park Jong-A. According to the above facts, the transferred real estate of this case was provided under the name of Park Jong-A, or acquired under the name of Park Jong-A in cooperation or under the name of Park Jong-A, but it was reasonable to deem that the transferred real estate of this case was paid by the above transferred real estate in consultation with the above transferred real estate of this case for the maintenance and increase of its value, and that part of the property of this case was paid by the above property division of this case and the above property division of this case 2151.

2) Payment to Defendant ParkCC

The Plaintiff asserts that Park In-A’s act of paying KRW 50,00,000 to Defendant Park In-A was a gift on December 24, 2012, and that Defendant Park In-CC received money from Park in which Park In-A’s act of paying KRW 50,00,000 was a donation, and that Defendant Park In-CC received money from Park in-A’s financial crisis.

In order for a debtor to have concluded a donation contract with respect to money remitted to another person’s deposit account, it should be interpreted that, first of all, the debtor and the other person have agreed to grant the money so remitted as to be ultimately reverted to another person, “donation” and free of charge. The burden of proof as to such act of remittance is the creditor who asserts that such act of remittance is a fraudulent act subject to the obligee’s right of revocation (see Supreme Court Decision 2012Da30861, Jul. 26, 2012).

In full view of the health class, evidence Nos. 5 through 9, evidence Nos. 10-1, 2, and 13-1, 3-2 of evidence Nos. 10-1, and 1-2 of evidence Nos. 1, and the results of an order to submit financial transaction information to AA Bank by this court, and the whole purport of the arguments and arguments, as to this case, AAC, operated by the AA and the Defendant LAC, as the representative director, are located at AA4-32-12, all of which are located at AAA-4-32, and AAtech, AAC discontinued closed on December 27, 2012, and immediately closed on December 31, 2012, AAAAC also was registered as an internal director of AAE, and the facts that AA and Defendant LA had been recorded as the following financial transactions between BA and PAC as indicated below.

In full view of the following facts: (a) there is no big difference between ParkA and Defendant ParkCC in the amount of money, and (b) there is more money paid by ParkA; (c) there is no evidence to acknowledge that AAAAAAAAC was paid the said real estate to ParkA while it was a business location; (d) the said real estate was disposed of, and there is no other evidence to acknowledge that AAAAAAAAAC was paid; (e) the said real estate was disposed of; and (e) AAAC and AAAC were actually operated as a family company; and (e) it is deemed that AAAAAA and AAAC were actually operated as a family company, it is difficult to deem that the instant payment was paid money that Defendant Park C lent lent to ParkA with the operating capital of AAAA

In addition, in view of the absence of evidence to support that ParkA paid KRW 50,000,00 to Defendant ParkA on December 24, 2012 to the effect that the said money belonged to ParkA again, the said money was paid to Defendant ParkAC’s personal account rather than AAtech, and Defendant ParkCC or ParkA has no different opinion as to the fact that the said payment was asserted as the repayment of the loan and at least there was no right to claim the return to ParkA, it is reasonable to deem that the said payment was donated to Defendant ParkCC to the effect that it would have been ultimately reverted to the Defendant ParkA.

C. Whether the fraudulent act was established

1) At the time of each of the instant payments (based on December 23, 2012), the current status of property of ParkA (based on December 23, 2012)

In full view of the purport of the entire arguments in the statements Nos. 2, 3, 6, 7, 8, and 9 as a whole, Park Jong-A is recognized as having been in excess of the obligation in excess of the positive property at the time of each payment of this case as follows.

(a) Active property: 30,693,862 won deposit in the Daegu Bank;

B) Small property: (1) below + (2) + ③ = 436,069,055 won

① Tax liabilities against the Plaintiff: KRW 210,069,055.

(2) Loans owed to ParkD: 126,000,000 won

(3) Loans from the Credit Guarantee Fund: 100,000,000 won.

2) Each payment to Defendant Hea is made.

A) Division of property at the time of divorce is so excessive that it may not be deemed reasonable in violation of the purport of Article 839-2(2) of the Civil Act. Barring any special circumstance to deem that division of property is a disposal of property made in the actual condition, a fraudulent act does not constitute an obligee’s right of revocation. Barring such special circumstance, even in a case where a person becomes an obligee’s right of revocation due to a fraudulent act, the scope of revocation is limited to the portion exceeding the considerable portion (see, e.g., Supreme Court Decisions 200Da14101, Jul. 28, 200; 2004Da58963, Jan. 28, 2005).

B) In light of the aforementioned legal principles, we examine whether each payment made to Defendant Hea constitutes a fraudulent act as a division of property beyond a considerable degree.

(1) Period and circumstances of property formation

The facts that Defendant HuA maintained a marital relationship for about 41 years after completing a marriage report with 20 years on March 8, 1972, and completed a divorce report on January 24, 2013, ParkA acquired the instant transferred real estate between 2004 and 2008, and that ParkA operated the instant transferred real estate, and that Defendant HuA did not engage in any particular economic activity, and that the instant payment was part of the proceeds from the disposal of the said real estate, as seen earlier, Eul’s 4, 6, 7-1, and 2’s respective arguments and arguments, and that Defendant HuA sold the said housing to Defendant 2 on June 7, 198 under the name of 209-20 and 30-3, 196, 196, 30-1, 196, 196, 30-1, 196, 4, 196, 196.

(2) Property subject to division

According to the overall purport of evidence Nos. 7, 8, and 9, each of the statements and arguments by the defendant HuA as of Jan. 24, 2013, where the defendant HuA was divorced from the ParkA, no active property of ParkA exists, and ParkA was liable for the pertinent tax liability of 210,069,055 won against the plaintiff. ParkA paid 156,000,000 won out of the proceeds from the disposal of the transferred real estate in this case to the defendant HuA, other than the above payment, it is recognized that there was no specific positive property of the defendant HuA in addition to the above payment, and if the debt was borne with the formation and maintenance of common property, it is subject to liquidation. Accordingly, the net property after deducting the small property from the active property subject to division of property is -54,069,05 won (=156,000,000 won - 210,069,50).

(3) The reasonableness of division of property

Whether the division of property of a debtor, which is the basis for determining a fraudulent act, is reasonable shall be determined in accordance with the general principle of the division of property as prescribed by Article 839-2 of the Civil Act. However, in light of the purport of the above provision, it is reasonable to deem that the division of property is reasonable in the relationship between the divorced party and the creditor’s interest, and also, in consideration of the relationship with the divided party’s creditor. In addition, in light of the purport of the above provision, it is reasonable to deem that the division of property refers to the ratio that can be divided from the other party’s spouse with respect to the whole formed property by taking into account the degree of contribution and all other circumstances (see, e.g., Supreme Court Decision 2005Da

Considering the above property formation process and the degree of contribution of Defendant HuA, it is reasonable to deem that the degree of contribution of Defendant HuA cannot exceed 50%. As such, the limit of the net property subject to property division in this case-54,069,05 won to Defendant HuA is calculated as KRW 27,034,527, which corresponds to 50% of the net property subject to property division. However, according to the following purport of the evidence No. 7 and No. 3 as well as the entire arguments, ParkA agreed to pay KRW 250,00,000 to Defendant HuA as consolation money and property division, and accordingly, ParkA paid KRW 156,00,000 among the proceeds of the transfer of real property in this case to Defendant HuA, which exceeds the maximum amount of property division, the amount of property division by Defendant HuA constitutes property division exceeding the maximum amount of KRW 150,000,000,000,0000.

3) Donation to Defendant ParkCC

ParkA’s donation of money to Defendant ParkCC in excess of its obligation as above. As such, the donation agreement between ParkA and Defendant ParkCC on December 24, 2012 should be revoked as a fraudulent act.

(d) Scope of revocation of fraudulent act and restoration to original state;

The act of paying damages for delay to Defendant Heba, the donation contract to Defendant HebCC constitutes a fraudulent act. The Defendants’ malicious intent is presumed to be. Therefore, each payment act and donation contract should be cancelled. In addition to the case where the Plaintiff seeks the payment of damages for delay by cancelling the payment of money as a fraudulent act, it shall be deemed that the other party actually received the money (see Supreme Court Decision 2005Da76753, Oct. 26, 2006). However, the duty of restitution for delay arises only when the judgment of revocation of the fraudulent act becomes final and conclusive, so the Plaintiff’s claim for delay payment from 00.0% to 200.0% of the total amount of damages for delay calculated from the date of delivery of a copy of complaint to the date of full payment, and from 0.0% of the total amount of damages for delay from 200 won to 20.0% of the total amount of damages for delay, and from 200% of the Civil Act’s total amount of damages for delay from 200.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remainder is dismissed as there is no ground, and the provisional execution declaration is not attached in the nature of the claim, and it is so decided as per Disposition.