In the event the legal relationship of the establishment of the claim is established and the claim is actually created, it shall become the preserved claim of the obligee's right of revocation.

In the event a claim has already been created at the time of the juristic act, there is a high probability that the claim will be created in the near future based on the legal relationship, and in the near future, the claim will also become a preserved claim of the obligee's right of revocation in the near future.

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

§ 406. Revocation of Civil Code

Gwangju District Court Decision 2017Gahap1477 Revocation of Fraudulent Act

Korea

AA and 1

January 10, 2018

January 31, 2018

1. The gift agreement concluded on February 28, 2014 between Defendant AA and Nonparty BB shall be revoked within the limit of KRW 310,000,000.

2. Defendant AA shall pay to the Plaintiff 310,00,000,000 won with an annual interest of 5% per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

3. The plaintiff's remaining claims against the defendant AA and the defendant CCC are dismissed, respectively.

4. Of the costs of lawsuit, 1/4 of the portion arising between the Plaintiff and Defendant AA is borne by the Plaintiff, the remainder is borne by the said Defendant, and the part arising between the Plaintiff and Defendant CCC is borne by the Plaintiff

Cheong-gu Office

Defendant AA and Nonparty BB cancel the gift agreement concluded on February 28, 2014 within the limit of 366,106,740 won. The contract of donation concluded on February 28, 2014 between Defendant CCC and Nonparty BB shall be revoked. Defendant AA shall pay to the Plaintiff an amount of KRW 366,106,740, Defendant CCC shall be KRW 41,000,000, and an amount of KRW 5% per annum from the day following the date this decision became final and conclusive to the day of full payment.

1. Basic facts

(a) Sale of real estate by BB and failure to report capital gains tax;

BB sold seven parcels, including ○○○○○, 358-3 Miscellaneous land, 323 square meters, which were owned by the EE, to the 10th day of February 7, 2014 and the 10th day of the same month (hereinafter “each of the instant real estates”), in total, KRW 1,325,950,00 as listed below, but did not report capital gains tax thereon.

No.

Date of transfer registration of ownership;

Buyer

Subject real estate

Sales proceeds;

1

February 7, 2014

EE

○○○-si ○○ 358-3 Miscellaneous land 323 square meters

180,745,000

2

〃 4

FF

GG

〃 357-11 225m2

410,700,000

3

〃 358-9 22m2

4

"〃 358-12 " 512 square meters in return

5

〃 4

H H H

〃 358-8 Doz. 545 square meters

175,000,000

6

〃 4

JJ

〃 358-11 Large 809 square meters

409,500,000

7

February 10, 2014

KK

"〃 358-7 Large 428 square meters

150,005,000

Total

1,325,950,000

B. Payment of the purchase price to the Defendants by BB

1) BB entered the accounts of the settlement of accounts related to the sale of each of the instant real estate into a certified judicial scrivener. DB received total of KRW 1,302,750,000,000, excluding some of the said transfer proceeds, from its own account, and repaid KRW 824,862,960 to the debt and expenses incurred in each of the instant real estate, and paid KRW 477,887,040,040 as a check to BB.

2) On February 28, 2014, BB deposited 400,387,040 won check ( check number 3******) into the Agricultural Cooperative Account of Defendant AA (hereinafter “instant AA”) which is the spouse, and deposited KRW 41,00,00,000 in the total of KRW 41,00,000 won check (hereinafter “the instant deposit account”) into the Agricultural Cooperative Account of Defendant CCC (hereinafter “CCC account”).

C. Imposition of transfer income tax on the Plaintiff BB

1) On December 31, 2014, the head of the ○○ Tax Office under the Plaintiff’s control imposed capital gains tax of KRW 298,028,370 on the transfer of each of the instant real estate on December 31, 2014, but BB did not pay the said tax.

2) On May 26, 2017, the date of filing the instant lawsuit, BB’s arrears in capital gains tax on each of the instant real estate around May 26, 2017, including (i) additional dues of KRW 109,078,370, and KRW 407,106,740 (hereinafter “instant taxation claim”).

(d) the financial status of BB;

BB has not any property other than each of the instant real estate since the deposit of this case from the time of the deposit of this case to the present.

Each description of evidence Nos. 1 through 5 and 7 of the grounds for recognition (including branch numbers for those with branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings.

2. Determination on the defense prior to the merits

A. Summary of the defendants' assertion

The Plaintiff became aware of the instant deposited money through a certified judicial scrivener DD around May 2016, and the instant lawsuit filed in May 26, 2017 after one year thereafter is unlawful, even though the period for filing the obligee’s right of revocation expires.

B. Determination

In the exercise of obligee's right of revocation, "the date when the obligee becomes aware of the cause for revocation" means the date when the obligor becomes aware of the fact that the obligor had committed a fraudulent act despite being aware that it would prejudice the obligee. This is not sufficient to simply recognize the fact that the obligor conducted a disposal of the property, and it is also required to know the existence of a specific fraudulent act and to know the fact that the obligor had an intent to deceive the obligor. On the other hand, the burden of proof regarding the degree of limitation period lies in the other party to the obligee's revocation lawsuit (see Supreme Court Decision 2007Da63102, Mar. 26, 2009).

According to the evidence No. 3, the plaintiff-affiliated director of the regional tax office sent a question about the sale and purchase of each real estate of this case to DB to DB, and around May 2016, the plaintiff received a reply that "B performed the settlement of purchase and sale of each of the real estate of this case at the request of DB, and paid 477,887,040 won to BB as a check." However, this fact alone is insufficient to view that the plaintiff was aware of the deposited money of this case against BB around that time, and there was no other evidence to acknowledge that the act was fraudulent or intentional to BB. According to each of the statements No. 4-1, No. 4-2, and No. 2, the plaintiff was issued to DB during the process of confirming the deposit payment of the check of this case to BB from the financial institution on June 23, 2016.

Therefore, the above assertion by the defendants is without merit.

3. Judgment on the merits

A. Determination on preserved claims

1) In principle, a claim that may be protected by the obligee’s right of revocation should have arisen before an obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, at the time of the juristic act, there has already been a legal relationship which serves as the basis for the establishment of the claim, and there is high probability that the claim would have been created by such legal relationship in the near future, and in a case where a claim has been created by realizing the probability in the near future, the claim may also become a preserved claim (see Supreme Court Decision 2000Da37821, Mar. 23, 2001).

Therefore, as a "tax to be paid by the preliminary return", Article 105 of the Income Tax Act and Article 21 (2) 2 of the Framework Act on National Taxes is established on the last day of the month in which the amount of tax base occurs. As seen in the above basic facts, as seen in the above basic facts, the legal relationship, which is the basis for the taxation claim of this case, was established by transferring each of the instant real estate owned by BB on February 7, 2014 and February 10, 2014, before the deposit of this case, was transferred by the transfer of each of the instant real estate, which was owned by BB on February 7 and February 10, 2014, was highly probable at the time

BB liquidated each of the instant real estate transfer proceeds on February 7, 2014 and February 10, 2014, which is the end of February 28, 2014, which is the end of the month to which the instant real estate transfer proceeds belong. In fact, the probability was realized, and KRW 298,028,370 of the principal tax claim of this case was generated.

2) Meanwhile, when a creditor exercises his/her right of revocation, the amount of a creditor’s claim includes interest or delay damages incurred after the fraudulent act and until the date of closing argument in fact-finding proceedings (see, e.g., Supreme Court Decisions 2000Da66416, Sept. 4, 2001; 2003Da19572, Jul. 11, 2003); and additional and increased additional charges provided for in Articles 21 and 22 of the National Tax Collection Act are the kind of incidental tax imposed as a interest on the unpaid portion if the national tax is not paid by the due date, and if the national tax is not paid by the due date without the due date without the due date of confirmation procedure by the person who has the right of taxation, it naturally becomes final and conclusive pursuant to Articles 21 and 22 of the same Act (see Supreme Court Decision 200Du2013, Sept. 22, 200).

Therefore, as long as the principal tax claim of this case is recognized as the preserved claim of obligee's right of revocation, the amount of such claim shall be KRW 407,106,740, including the additional and increased additional charges incurred until the closing of argument in this case after the fraudulent act, and the increased additional charges shall be KRW 109,078,370.

B. Whether the instant deposited money constitutes a gift contract subject to revocation of fraudulent act

1) Summary of the parties' arguments

The Plaintiff asserts that the Plaintiff’s act of making the instant deposit, such as deposit of KRW 400,387,040, and KRW 41,000,000,000 in the account of Defendant CCC, which is the wife, under excess of debt, constitutes a fraudulent act, and thus, constitutes a donation of each of the above amounts to the Defendants.

As to this, the Defendants asserted that BB used the Defendants’ account, a family member, on the ground that BB was a bad credit holder, and that the deposited money in this case does not constitute a donation to the Defendants.

2) Relevant legal principles

Since a fraudulent act subject to creditor's right of revocation refers to an act that causes a decrease in the debtor's whole property as a matter of principle in the debtor's property act that harms the creditor's creditor, even if it is a debtor's property juristic act, it may not be deemed a fraudulent act if it does not cause a decrease in the debtor's whole property (see, e.g., Supreme Court Decision 80Da140

Meanwhile, in cases of remitting money to another person’s deposit account, etc., the remittance may be based on a variety of legal causes. Therefore, it cannot be readily concluded that the remittance is a fraudulent act causing actual decrease in the whole property of the remitter with the sole legal cause (see, e.g., Supreme Court Decisions 2012Da30861, Jul. 26, 2012; 2014Da22725, Jan. 28, 2016).

3) Determination

A) Deposit of KRW 400,387,040 in the AA account

According to the court's order to submit financial transaction information to the ○ Agricultural Cooperative, upon deposit of KRW 400,387,040 with the instant AA account on February 28, 2014, and then deposit of KRW 300,000,000 from the said account with the Defendant AA term deposit account on March 10, 2014; and on the same day, deposit of KRW 10,000,000 from the instant AA account and deposited into the Defendant AA’s ○○ Savings account on the same day.

According to the above facts, 310,00,000 won (i.e., KRW 300,000,000 + KRW 10,000,000) out of the total amount of KRW 400,387,040 deposited into the Account of this case (i.e., KRW 300,000 + KRW 10,000) was reverted to Defendant AA, and it is reasonable to deem that there exists a mutual agreement between BB and Defendant AA regarding the intent of donation within the scope of the amount (i.e., the remainder of the money was asserted that there was a mutual agreement between BB and Defendant AA regarding donation, but it is not sufficient to acknowledge the remainder of the money, and there is no evidence to

Therefore, the Plaintiff’s assertion that BB donated KRW 400,387,040 to Defendant AA with the deposit of this case is reasonable within the above limit of KRW 310,00,00 (hereinafter “the donation contract of this case within the above limit of recognition”), and there is no reason for exceeding the above limit.

B) Deposit of KRW 41,000,000 with the CCC account

According to the court's order to submit financial transaction information to ○○ Agricultural Cooperative, the fact that BB deposited KRW 41,00,000 in total with the instant CCC account on February 28, 2014 is deposited, and KRW 300,000 per month from this account deposited from this account to the AFF regular deposit account opened on January 6, 2014, and was deposited KRW 1,000,000 per month and deposited KRW 1,00,000 per month from March 17, 2014 to another AF regular deposit account, respectively, can be recognized.

However, comprehensively taking account of the overall purport of the arguments in Eul evidence Nos. 3 through 6, the instant CCC account was leased real estate located in ○○ in 2013 and 200,000 won each month and used as the account for the receipt of rent from 300,000 and 200,000 won each month. Defendant CCC deposited KRW 1,00,000 (2,00,000,000) with the instant CCC account from April 30, 2014 to September 15, 2014; Defendant CCC’s deposit of KRW 1,00,00,00 (2,00,000 each month) with the instant account; and there was no room to view that CCC’s deposit of KRW 30,000 and more than 30,000,000,000, more than 30,000,000 won and more than 30,00,00.

Therefore, the plaintiff's assertion that BB donated KRW 41,00,000 to Defendant CCC by deposit act of this case is without merit.

(c) The intention to commit fraudulent acts and to injure himself;

BB’s active property at the time of entering into the instant gift agreement with Defendant AA was KRW 477,887,040, and small property was KRW 298,028,370, which is the principal tax of the instant tax claim. However, the Plaintiff’s active property due to the instant gift was reduced to KRW 167,887,040 (= KRW 477,887,040 - KRW 310,000), and thus, the instant gift constitutes a fraudulent act against the Plaintiff, a creditor.

In addition, insofar as there is no proof against the intention of piracy, BB is presumed to have concluded the gift contract of this case with the intent to harm the plaintiff, and it is presumed that Defendant AA was aware that the conclusion of the gift contract of this case led to the lack of joint security of the general creditors of BB such as the plaintiff, etc., and the fact inquiry with respect to the certified judicial scrivener DD of this court alone is insufficient to reverse the presumption.

(d) Revocation of fraudulent acts and reinstatement;

Therefore, the gift contract of this case entered into by BB with Defendant A shall be revoked as a fraudulent act. As such, Defendant AA is obligated to pay to the Plaintiff 310,000,000 won and damages for delay calculated at the rate of 5% per annum under the Civil Act from the day following the day when this judgment becomes final and conclusive to the day when full payment is made.

4. Conclusion

Therefore, the plaintiff's claim against the defendant AA is accepted within the scope of the above recognition, and the remainder is dismissed as it is without merit. The claim against the defendant CCC is dismissed as it is without merit. It is so decided as per Disposition.