Suwon District Court 201Mo4867 (2013.05.08)

As to each of the instant real property, the transfer contract of the instant collateral security claims concluded on December 1, 2009 should be revoked as a fraudulent act.

After KimB was imposed the tax liability of KRW 00 million on the Defendant, the Defendant is actively transferred the instant collateral security claims with no particular property, and in light of the circumstances that transferred each of the instant collateral security claims, KimB’s intent to commit harm is recognized, and the Defendant’s bad faith is presumed to be presumed.

2013Na2008890 Revocation of Fraudulent Act

Korea

IsaA

Suwon District Court Decision 201Gahap4867 Decided May 8, 2013

November 21, 2013

December 12, 2013

1.The judgment of the first instance, including the preliminary claims added at the trial, shall be amended as follows:

A. The transfer agreement between the defendant and KimB on December 1, 2009 is revoked.

B. The defendant, the defendant

1) 이CC(XXXXXX-2XXXXXX, 주소 : 서울 ○○구 ○○동 XXX-X ○○아파트 XXXX호)에게 별지1 목록 기재 근저당권부 채권에 관한 위 가.항 기재 양도계약이 취소되었다는 취지의 통지를 하고,

2) The Plaintiff shall pay to the Plaintiff 162,397,315 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment; and

3) 김BB(XXXXXX-2XXXXXX, 주소 : 서울 ○○구 ○○○XX길 XX-X)에게 별지2 목록기재 제2, 3 부동산에 관하여 춘천지방법원 2009. 12. 9. 접수 제64616호로 마친 근저당권이전등기의 각 말소등기절차를 이행하라.

C. The plaintiff's remaining main claim and conjunctive claim are dismissed, respectively.

2. One-third of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

A. The primary purport of the claim

1) The right to collateral security transfer agreement concluded on December 1, 2009 between the defendant and KimB on each of the real estate listed in the separate sheet No. 2 list (hereinafter referred to as "each of the real estate in this case", and as the sequence No. 1, 2, and 3 real estate in this case is revoked.

2) The defendant will implement the procedure for cancellation registration of cancellation of the registration of the transfer of the right of neighboring party that was completed by the Chuncheon District Court No. 64616 on December 9, 2009 with respect to the real estate Nos. 2 and 3 of this case to KimB.

3) The defendant shall pay to the plaintiff 297,327,00 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

B. Preliminary purport of the claim (the plaintiff added to the preliminary purport of the claim at the trial, except for the part overlapping with the primary purport of the claim)

1) The transfer agreement between the defendant and KimB on December 1, 2009 with respect to the secured mortgage claim listed in the attached Table 1 list (hereinafter referred to as the "mortgage claim of this case") shall be revoked.

2) The Defendant notifiedCC that the transfer contract of the instant mortgage claim was revoked, and (2) KimB transferred the claim of KRW 137,602,685 out of the instant collateral security claim, notified thisCC of the assignment of the claim, and (3) implement the registration procedure for cancellation of the transfer of the right to collateral security, which was completed on December 9, 2009 by receipt of No. 64616, Dec. 9, 2009, with respect to the instant Claim 2 and 3 real estate.

3) The defendant shall pay to the plaintiff 162,397,315 won with interest rate of 20% per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Facts of recognition;

A. Plaintiff’s claim against KimB

1) On May 1, 2009, the Plaintiff imposed on KimB a total of KRW 474,448,360, and KRW 9,146,240, and KRW 483,594,60, and KRW 483,594,60, and the Plaintiff did not pay the payment deadline by May 31, 2009.

2) The amount in arrears of KimB is the total of 522,842,090 won of global income tax and 532,91,960 won of global income tax as of December 1, 2009, including additional dues (3%) and aggravated additional dues (1.2% of each month), and the total of 764,975,560 won of global income tax when based on April 1, 2013.

B. Disposition by KimB

1) On June 5, 2008, KimB concluded a contract to establish a right to collateral security, which is to obtain KRW 300 million with respect to each of the instant real estate owned by theCC, and KRW 300 million with respect to each of the instant real estate owned by the creditor KimB, and completed the registration of establishment of each of the instant first-class collateral security (hereinafter referred to as “each of the instant collateral security”) with respect to the instant real estate as the third-class registration office of Seoul○ District Court No. 46278, Jun. 9, 2008, No. 31371, Jun. 13, 2008.

2) On December 1, 2009, KimB concluded a loan claim against thisCC (the instant collateral security claim) and a contract transferring each of the instant collateral security claims (hereinafter referred to as the “contract for the transfer of the instant collateral security claim”) with the Defendant, who was the former part of South Dongdong Kim Jong-dong KimD (the agreement was filed on September 26, 2005), and notified the instant claim assignment toCC on December 15, 209, with the Seoul ○ District Court ○○○○○ registry Office 82959 on December 3, 2009, with respect to the instant collateral security claim 1, as Seoul ○○ District Court ○○○○○○ registry ○616 on December 3, 2009, as the registration of the instant case 2 and 3 real estate and the registration of the transfer on December 9, 2009 on December 1, 2009.

C. The financial status of KimB

At the time of the contract on the transfer of the right to collateral security claim in this case, KimB had a KRW 300 million with respect to thisCC, and with respect to the small property, KimB bears the tax liability against the Plaintiff, KRW 532,911,960 with respect to the loan obligation against the Defendant, KRW 200 million with respect to the loan obligation against the Defendant, and KRW 200 million with respect to the loan obligation against the Defendant.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, 5 through 8, Eul evidence Nos. 8, 9, and 11 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's assertion

In the process of tracking KimB's assets, the Defendant had already known the fact that each of the instant collateral security rights had already been transferred to the Defendant around March 10, 2010, and had been aware that KimB's financial tracking investigation was completed around April 2010, and around that time, KimB had known that the instant transfer of each of the instant collateral security rights was a fraudulent act. Thus, the Defendant asserted that the instant lawsuit filed after the lapse of the exclusion period of one year thereafter is unlawful.

B. Determination

1) In the exercise of the right of revocation, the "date when the obligee becomes aware of the ground for revocation" means the date when the obligee becomes aware of the requirements for the right of revocation, i.e., the date when the obligee becomes aware of the fact that the obligor committed a fraudulent act with the knowledge that the obligee would prejudice the obligee. Thus, it is not sufficient that the obligor merely knows that the obligor conducted a disposal of the property, and that the juristic act is an act detrimental to the obligee. In other words, it is necessary to inform the obligor that the obligor was unable to fully satisfy the claim due to the shortage of joint security of the claim or lack of joint security in the situation where the claim has already been secured, and that the obligor had the intent to know, and further, the burden of proof as to the limitation period is limited (see, e.g., Supreme Court Decisions 2011Da82384, Jan. 12, 2012; 209Da47852, Oct. 29, 2009).

2) In light of the above legal principles, the Plaintiff’s ○○ Tax Office, upon examining the overall purport of the arguments in the statement Nos. 3 and 5 regarding this case’s health class, the Plaintiff’s ○○○ Tax Office, upon ascertaining the relationship between 2.4 billion won and ○○ Tax Office having jurisdiction over the receipt of funds by KimB in relation to the tax investigation of KimD, a bond company, KimB, on March 2009, notified the Defendant of the investigation data on the ○○ Tax Office. Accordingly, the ○○ Tax Office imposed the taxes as seen above on KimB as to the non-business amount belonging to 2007 and 2008, among the above KimD’s taxation data notified by the above ○○○ Tax Office, it was acknowledged that KimB and the Defendant entered the ○○ Tax Office’s relation with Kim Jong-B and the 2.3rd Tax Office’s non-business amount to the Defendant, including the Plaintiff’s non-business amount to the Defendant in arrears and the Defendant’s 10th of Seoul District Tax Office.

그러나 한편, 갑 제3, 7, 12 내지 15, 18호증의 각 기재, 제1심 증인 이FF의 증언에 변론 전체의 취지를 종합하면, 김BB가 2007. 4. 25. 윤EE에게 13억 원을 대여하고, 같은 날 윤EE으로부터 윤EE의 계좌에서 출금한 수표 3억 원(1억 8,700만 원 1매, 1,000만 원 1매, 100만 원권 10매)을 이자 및 수수료 명목으로 교부받고, 2007. 7. 24. 김BB의 우리은행 계좌로 3,900만 원을 송금받은 것을 비롯하여 그 무렵부터2008. 7. 14.까지 이자 내지 수수료 등의 명목으로 합계 11억 9,180만 원을 지급받고, 2008. 5. 22.에는 원금 12억 6,100만 원을 지급받아 합계 24억 9,180만 원을 지급받은사실, 앞서 본 바와 같이 원고 산하 ○○지방국세청이 2009년 3월경 김BB의 위와 같은 자금 수수 관계를 파악하여 ○○세무서에 조사자료를 통보함에 따라 김BB에게 세금이 부과되었고, 서울지방국세청의 위 TF팀은 그 무렵 김BB를 체납대상자로 파악하여 조사하면서 위 24억 9,180만 원의 행방이 확인되어야 김BB가 채무초과상태인지 여부를 알 수 있을 것으로 판단하고, 2010년 4월경 위 돈이 실제로 김BB의 재산인지와 그 자금흐름을 조사하기 위하여 시중은행에 금융거래자료 제공요구 등을 통하여 금융추적을 하여 왔던 사실, 그 결과 원고는 위 돈 중 일부가 김BB의 예금계좌에서 출금되어 김BB의 친인척 명의의 예금계좌로 입금된 점은 확인하였으나 금융추적조사가 완결되지 못하여 위 돈의 최종적인 귀속자를 확인하지는 못한 상태에서 담당자인 이FF의 인사이동으로 2011년 2월경 담당자가 송GG으로 변경된 사실, 위 이FF은 2010. 8. 20.경 윤EE의 김BB에 대한 차용금 13억 원에 대하여 연대지급보증한 것으로 보이는 푸르덴셜투자증권 주식회사에게 위 회사와 김BB, 김DD, 윤EE과의 관계, 13억 원 차용 경위와 상환내역 및 그 금융증빙자료 등을 요청한 사실, 위 이FF의 후임자인 송GG은 2011. 3. 21.경 피고에게 이 사건 근저당권부 채권의 양도와 관련하여 피고와 김BB의 관계, 근저당권이 양도된 경위와 관련 증빙서류, 금전거래 관계가 있는 경우 그 금융증빙서류 등에 관하여 회신할 것을 요청한 사실, 위 송GG은 국세청 체납자 재산 등 자료현황에 김BB에게 별다른 재산이 없는 것으로 조회되고, 2011. 6. 21.경 김BB의 제적등본을 발급받고 김BB와 피고가 과거에 특수관계에 있었음을 알게 되자 이 사건 근저당권부 채권의 양도계약이 사해행위에 해당할 수 있다고 보아 2011. 10. 24. 이 사건 소를 제기한 사실을 인정할 수 있고, 원고가 이 사건 소를 제기한 이후인 2011. 11. 14. 수원지방법원 2011카단9747호로 이 사건 제2 부동산에 관한 피고 명의의 근저당권에 대하여 처분금지가처분결정도 받은 사실은 이 법원에 현저하다. 사정이 이와 같다면, 앞서 본 인정사실만으로는 피고가 주장하는 바와 같이 원고가 2010년 3월 내지 4월경 이 사건 근저당권부 채권의 양도계약이 채권자를 해하는 것이고, 김BB에게 사해의 의사가 있었다는 사실까지 알았다는 점이 입증되었다고 보기에는 부족하고 달리 이를 인정할 증거가 없다. 오히려 앞서 본 인정사실에 비추어 보면, 위 TF팀의 담당자 이FF이 인사이동으로 교체된 2011년 2월경까지도 김BB에 대한 금융추적조사 과정에서 김BB가 지급받은 24억여 원의 최종적인 귀속자가 확인되지 않아 김BB의 채무초과상태 여부를 판단하기 어려웠다 할 것이므로 원고가 김BB의 사해의사까지 알았다고 단정할 수 없고, 그 후 담당자인 송GG이 추가로 김BB에 대한 금융추적을 한 적이 없다거나 2011. 6. 21.경 김BB의 제적등본을 발급받아서야 김BB와 피고가 과거에 특수관계에 있었음을 알고 이 사건 근저당권부채권의 양도계약이 사해행위에 해당한다고 보아 2011. 10. 24. 이 사건 소를 제기하였다 하더라도, 원고가 김BB에게 사해의 의사가 있었다는 사실까지 알고도 1년의 제척기간을 도과하여 이 사건 소를 제기하였다고 볼 수는 없다.

3) Therefore, the defendant's above main defense cannot be accepted.

3. Judgment on the merits

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

1) According to the above facts, since KimB's global income tax and education tax of KRW 532,91,960 against the Plaintiff accrued prior to the transfer contract of the instant collateral, the obligee's right of revocation becomes the preserved claim, and although KimB was in excess of the obligation, KimB reduced the property of the joint collateral by transferring the instant collateral to the Defendant, the transfer contract of the instant collateral security claim constitutes a fraudulent act, and KimB is presumed to have actively transferred the instant collateral security claim to the Defendant only in the absence of any other property except the instant collateral security claim after the Plaintiff was imposed with the tax obligation of KRW 500,000 from the Plaintiff, and in light of the circumstances that transferred each of the instant collateral security, KimB's intent to commit suicide is presumed to have been recognized, and the Defendant's bad faith is presumed to have been presumed.

2) As to the Plaintiff’s assertion, the Defendant asserts that, even based on the Plaintiff’s assertion, the Defendant did not conclude that KimB had been in excess of the obligation, since the financial tracking investigation was not completed on the money deposited in the account in the name of relatives of KimB, and the money deposited in the account in the name of relatives of KimB.

On the other hand, in order for the debtor to be a fraudulent act, the act of disposal of the debtor's property shall cause a decrease in the debtor's whole property and thus, the debtor's small property shall be more than active property. In other words, the debtor's small property shall be more than active property, and even if the total amount of the real estate claims exceeds the creditor's claim amount at the time of disposal of the property, the debtor's active property shall be excluded from the active property, unless there are other special circumstances. If the debtor's property is a claim, it shall be reasonably determined whether it is reliable to receive repayment and shall be included in active property only if it is affirmed (see, e.g., Supreme Court Decision 2001Da32533, Oct. 12, 2001).

According to the above legal principles and the facts acknowledged as seen earlier, KimB was in a situation in which the ownership of the fund was unclear as the family is operating the bond business between KimD, a bond company, and KimB. Therefore, even if KimB had a claim equivalent to the above 2.4 billion won, even if at the time of the fraudulent act in this case, KimB had a claim equivalent to the above 2.4 billion won, it is difficult to view that the above claim was easily repaid, and it cannot be included in active property. Thus, the defendant's above assertion is without merit

3) Defendant’s bona fide defense

피고는 김BB에게 2008. 6. 9.경 2억 원을 실제로 대여하였는데, 2005. 9. 26. 김DD와 이혼한 뒤 시댁 식구들과는 거의 왕래가 없어 전 시누이인 김BB의 채무초과상태에 대하여 알지 못한 상태에서 위 대여금채권에 대한 변제 내지 담보조로 이 사건 근저당권부 채권을 양도받은 것이므로 선의라는 취지로 항변한다.

In contrast, the fact that the beneficiary was unaware of the fraudulent act is the beneficiary at the time of the fraudulent act is proved by the burden of proof. In this case, evidence that can be objectively and objectively obtained should be supported when recognizing that the beneficiary was bona fide at the time of the fraudulent act. It cannot be readily concluded that the beneficiary was bona fide at the time of the fraudulent act (see, e.g., Supreme Court Decision 2006Da5710, Apr. 14, 2006), Gap evidence Nos. 5, 17, and Eul evidence Nos. 1 through 5, and 7 through 9 are written only on the part of the debtor's unilateral statement or a statement that is merely a third party's explanation, etc. (see, e.g., Supreme Court Decision 2006Da5710, Apr. 14, 2006). Therefore, the defendant's assertion is insufficient to conclude

4) Sub-determination

Therefore, since the contract between the defendant and KimB on the transfer of the right to collateral security of this case, which was concluded on December 1, 2009 with respect to each of the instant real estate, should be revoked as a fraudulent act, the plaintiff's conjunctive claim for this claim is justified (the plaintiff primarily sought revocation of the contract on the transfer of collateral security which was concluded on December 1, 2009 with respect to each of the instant real estate between the defendant and KimB, but it does not revoke the contract on the transfer of collateral security, but if only the contract on the transfer of collateral security was revoked as a result, the claim on the right to collateral security of the right to collateral security and the subject of the right to claim the cancellation of the contract on the transfer of collateral security are different, and thus it is contrary to the paper of the right

(b) Methods of reinstatement;

1) Notice of cancellation of the transfer of claims with the right to collateral security

As seen earlier, since the contract for the transfer of the claim based on the right to collateral security is cancelled as a fraudulent act, it is reasonable to deem that the defendant has a duty to notify thisCC that the contract has been cancelled for the transfer of the right to collateral security in this case. Thus, the plaintiff's conjunctive claim for this part of the plaintiff's conjunctive claim for this claim is justified [On the other hand, the plaintiff is not obligated to restore KimB to its original state, and the defendant transfers to KimB the claim amounting to KRW 137,602,685 (= KRW 300 million - KRW 162,397,315) except for the compensation for the subsequent amount recognized by the defendant among the claim 300 million claims based on the right to collateral security in this case (= KRW 300 million - KRW 162,397,315) and to notify thisCC of the fact of the transfer of the right to collateral security in this case. However, as seen earlier, the plaintiff's claim for this part is rejected].

2) As to the real estate No. 1 of this case

In principle, restitution following the revocation of a fraudulent act shall be based on the return of the said object. However, in cases where it is impossible or considerably difficult to return the object itself, compensation shall be exceptionally made, and in calculating the amount of compensation, the value thereof shall be objectively assessed based on the time of closing argument in the fact-finding trial regardless of the price actually received by the beneficiary from the subsequent purchaser (see, e.g., Supreme Court Decision 2009Da104564, Apr. 29, 2010).

In light of Gap evidence Nos. 5 and Eul evidence Nos. 6's overall purport of the pleadings, the defendant's voluntary auction procedure (Seoul Southern District Court 2009Ma113) with respect to the real estate No. 1 of this case was followed, and the defendant received dividends of KRW 162,397,315 due to sale and the cancellation of the registration of creation of mortgage under KimB and the defendant's name. Thus, it is reasonable to deem that the return of original properties is impossible according to these facts. Thus, the method should be determined by the method of compensation for value, and the dividends received shall be paid to the plaintiff (the plaintiff is primarily the maximum debt amount of each right to collateral security of this case, KRW 30 million) (the value of the real estate No. 2 and 3 of this case calculated by deducting KRW 2,673,00,000 based on the officially assessed value of the real estate No. 2 and 2 of this case, but the plaintiff's assertion that the above real estate No. 2 and 3 of this case should be justified.

Therefore, the Defendant is obligated to pay to the Plaintiff dividends of KRW 162,397,315, and damages for delay calculated at the rate of 5% per annum as provided by the Civil Act from the day following the day when the judgment became final and conclusive to the day when full payment is made with respect to the dividends of KRW 162,39,315, which the Defendant received from the Plaintiff in the voluntary auction procedure for the instant real estate No. 1. [The Plaintiff is liable for damages for delay calculated at the rate of 20% per annum, but the obligation to compensate for value arises only when the judgment ordering revocation of the fraudulent act becomes final and conclusive, and thus the obligation to compensate for delay is held liable for delay delay from the day after the judgment becomes final and conclusive, and therefore, the statutory interest rate under the Civil Act is applied in accordance with the proviso to Article 3(1) of the Act on Special Cases Concerning the

3) As to the real estate Nos. 2 and 3 of this case

Since it is possible to return the object itself with respect to the real estate Nos. 2, 3 and 2 of this case, the defendant is obligated to implement the registration procedure for cancellation of the registration of the transfer of the right to collateral security, which was completed on December 9, 2009 by the Chuncheon District Court No. 64616, Dec. 9, 2009.

4) Sub-determination

Therefore, the Defendant is obligated to implement the procedure for cancellation registration of the registration of the transfer of the right to collateral security, which was completed as No. 64616 on December 9, 2009, with respect to the real estate No. 2 and 3 real estate of this case, with the notice to the effect that the contract for the transfer of the right to collateral security of this case was cancelled (preliminary claim), ② the Plaintiff shall pay to the Plaintiff 162,397,315 won and damages for delay calculated at the rate of 5% per annum from the day following the day when the judgment became final and conclusive to the day of full payment (preliminary claim).

4. Conclusion

Therefore, the plaintiff's primary and conjunctive claims of this case are accepted within the above scope of recognition, and the remaining primary and conjunctive claims are dismissed without merit. Since the judgment of the court of first instance is unfair with different conclusions, it is decided to revise the judgment of the court of first instance, including the conjunctive claims added in the court of first instance, as stated above.