The debtor's disposal of the debtor's property that deepens the excess of debt constitutes a fraudulent act.

The act of causing excess of obligations due to the act of disposal of the debtor's responsible property after the establishment of the tax liability against the taxation claimant shall be considered as fraudulent act.

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

2016 Ghana 10589 Revocation of Fraudulent Act

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SAA

June 15, 2017

July 6, 2017

1. On September 16, 2013, a gift contract of KRW 60,000,000 entered into between the Defendant and the bookB (CF 1,000,000) is revoked.

2. The defendant shall pay to the plaintiff 60 million won with 5% interest per annum from the day after the judgment became final to the day of complete payment.

3. The plaintiff's remaining claims are dismissed.

4. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder shall be borne by the Defendant.

Cheong-gu Office

After cancelling each contract of donation of KRW 23,00,000, which was concluded on August 27, 2013 and the contract of donation of KRW 78,581,161, which was concluded on September 16, 2013 between the Defendant and SeoB, the Defendant will pay to the Plaintiff the amount calculated by applying the rate of KRW 101,581,161 and the rate of KRW 5% per annum from the day following this decision to the day of full payment.

1. Basic facts

A. Formation of preserved claims

(1) 서BB은 2008. 4. 16.부터 2013. 8. 30.까지 ●●시 ●●구 ●●동 ●●-●●에서'▼▼산업'이라는 상호로 서비스・제조업을 영위한 사업자이다.

(2) From February 2009 to February 2, 201, SeoB received processing purchase tax invoices from customers and obtained unfair purchase deduction. Accordingly, the head of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the office of the competent Si/Gun/Gu has determined and imposed on SeoB on June 3, 2013 the value-added tax of KRW 21,635,90 as of June 3, 2013, KRW 17,213,40 as of January 1, 2010, KRW 40,440,60 as of June 30, 2013.

(3) If a bookB fails to pay the above value-added tax, the additional and increased additional charges are added as follows, and the additional charges and increased additional charges remain in KRW 105,357,820 as of March 14, 2016.

Table Omission of the Table

(b) Use of the proceeds of the disposal of real estate by SB and the transfer;

(1) 서BB은 2013. 8. 20. 양CC에게 서BB 소유의 ★★시 ★★2로 ★★, ◎◎◎동◎◎◎호(이하 '이 사건 부동산'이라 한다)를 대금 235,000,000원에 매도하기로 계약을 체결하였다. 위 계약에 따라 서BB은 양CC으로부터 아래 표 기재와 같이 2013. 8. 20.부터 2013. 9. 13.까지 매매대금 2억 3,500만 원을 지급받았다.

Table Omission of the Table

(2) Part IV of the check delivered from the twoCC was presented to the presenting bank as indicated below, and then was transferred to the Defendant’s account in the name of the father, the father of SeoB (hereinafter referred to as “transfers in the order of this case”, and hereinafter referred to as “each remittance in the entirety”).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 7 (including paper numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The party's assertion and judgment

A. The parties' assertion

(1) Plaintiff

SuB donated KRW 23,00,000 on August 27, 2013, and KRW 78,581,161 on September 16, 2013, respectively, to the Defendant in excess of the obligation. Each of the above donations constitutes a fraudulent act detrimental to the Plaintiff, a creditor, and each contract for gift must be revoked. The Defendant is obliged to recover from the original state following the revocation of a fraudulent act to the Plaintiff within the scope of the preserved claim, thereby paying the Plaintiff the amount of KRW 105,357,820 and delay damages.

(2) Defendant

(A) At the time of each transfer of the instant case, SB held a claim for the return of the amount of KRW 100 million to ED and E, each of the loan claims of KRW 60 million to EF, and the amount of KRW 50 million to EF, and the amount of KRW 100 million to SongG, which was not in excess of the obligation.

(B) SeoB has been managing and using the No. 1 account in the name of the Defendant (hereinafter referred to as the “No. 1 account of this case”) prior to example, and used the money deposited into the said account for its own purpose. The transfers No. 1 and No. 2 of this case do not constitute a fraudulent act.

(C) On October 8, 2012, the Defendant lent KRW 60 million to SeoB, which was repaid KRW 60 million on September 16, 2013, and the instant remittance was not donated No. 3 and No. 4.

(D) At the time of each transfer of this case, the Defendant did not know about the excess of the obligation of SeoB at the time of each transfer, and did not intend to prejudice the creditor.

(b)the establishment of preserved claims and the insolvency of SBB;

(1) The plaintiff's preserved claim

According to the above facts of recognition, the Plaintiff’s taxation claim against SeoB was already established prior to the transfer of each of the instant transfers by SeoB, and thus, the obligee’s right of revocation is subject to preservation.

(2) Whether a BB’s insolvency is insolvent

In a lawsuit seeking revocation of a fraudulent act, a debtor's active property shall be excluded from the property that cannot serve as a joint security for claims because it has no substantial property value, barring any other special circumstances. In the event that the property is a claim, a reasonable judgment shall be made to determine whether it is reliable to obtain easy repayment, and such property shall be included in active property only where it is affirmed (see, e.g., Supreme Court Decision 2001Da32533, Oct. 12, 2001).

위 법리에 비추어 이 사건에 관하여 보건대, 을 제3 내지 5, 7, 8호증의 각 기재에의하면, 서BB은 2012. 11. 1. 이DD 및 최EE에게 6,000만 원을 변제일 2013. 2. 28.로 정하여 대여한 사실, 구FF는 2013. 2. 24. ■■군 소재 공장부지 투자사업과 관련하여 서BB에게 2~3억 원 및 담보 대출을 통하여 추가 5억 원을 투자하기로 약정한 사실, 서BB은 같은 날 구FF에게 3,000만 원을 지급한 사실, 서BB은 2013. 3. 13. 구FF에게 5,000만 원을 대여한 사실, 송GG는 2016. 10. 31. 서BB에게 2008년경부터 2012. 6.경까지의 세금계산서 발급과 관련하여 8,700만 원을 변제하기로 약정한 사실을 인정할 수 있다. 그러나 변론 전체의 취지에 의하여 인정되는 다음과 같은 사정 즉, ① 서BB의 이DD 및 최EE에 대한 대여금채권의 변제일이 2013. 2. 28.임에도 변제가 이루어진 것으로 보이지 않는 점, ② 서BB이 2013. 2. 24. 구FF에게 3,000만 원을 지급한 사실만으로 서BB이 구FF에 대하여 3,000만 원의 반환채권을 가지고 있다고 단정하기 어려운 점, ③ 서BB의 구FF에 대한 5,000만 원 대여금채권은 ■■군 소재 공장부지의 투자와 관련하여 지급된 것으로 보이는바, 위 투자사업의 진행 경과에 따라 변제기가 정해지고, 위 투자사업이 성공하였을 경우 변제 가능성이 있다고 보임에도 그 사업 진행 경과 등에 관한 아무런 자료가 없는 점, ④ 서BB의 송GG에 대한 채권은 2016. 10. 31.경에 이르러서도 변제되지 않고 있는 점 등에 비추어 보면, 서BB의 위 각 채권은 용이하게 변제를 받을 수 있다고 확실성이 있다고 보기 어려우므로, 서BB의 적극재산에 포함할 수 없다.

Furthermore, according to the health team, Gap evidence Nos. 8 and 9 as to the property of SeoB at the time of each transfer of this case, and the market appraisal results and the purport of this court's appraisal results of appraiser Park HH as to the property of SeoB, SeoB owned 3306/17455 shares among 17,455 square meters of forests and fields △△△△△△△△△△△, △△△△△, △△△△△, △△△△, △△△, △△, △△, △△, △△, △△, and △, around September 16, 2013, the market price of the above land shares was KRW 10,579,200, and SeoB, as a small property, was borne by the plaintiff as a collateral security debt amounting to KRW 79,289,900 and KimJ. Accordingly, SeoB was in excess of the debt amount at the time of each transfer of this case.

C. Whether the remittance Nos. 1 and 2 of the instant case constitutes a fraudulent act

(1) In principle, a fraudulent act subject to obligee’s right of revocation refers to a debtor’s property legal act that causes reduction of the debtor’s whole property, and thus, even if the debtor’s property legal act does not cause reduction of the debtor’s whole property, such fraudulent act may not be deemed a fraudulent act. In addition, where a person in a certain personal relationship transfers money to another person’s deposit account, etc., the remittance may lead to various legal grounds, and the person knowingly consented or understood to transfer money owned by him/her to him/her to his/her own deposit account, or consented to or consented to de facto control of his/her account, barring any other circumstances, it cannot be readily concluded that the remitter and the account holder have agreed to give the remittance amount free of charge to the account holder (see, e.g., Supreme Court Decision 2012Da30861, Jul. 26, 2012). Thus, it cannot be readily concluded that the account holder and the remitter’s actual decrease in the remitter’s property did not constitute a fraudulent act under the real name-based account (see, 2016).

(2) It is insufficient to recognize the transfer Nos. 1 and 2 of the WestB solely based on the statement Nos. 4 and 5 as to whether it constitutes a fraudulent act. Rather, there is no other evidence to acknowledge it. Rather, the following circumstances recognized by the entire purport of the statement and pleading Nos. 1 and 6 of the Plaintiff, i.e., ① the Defendant opened the First Account on May 3, 2006, in addition to the partial receipt of the transfer under the name of the Defendant, most of the deposits are deposited or transferred to another financial account of B, and ② the transfer of the Fund No. 1 of the instant case to the other financial account of B after the SeoB made the transfer No. 1 of the instant case. 20 million won, and there is no other evidence to acknowledge the transfer of the Fund No. 1 and 2 of the instant case to the account under the name of the Defendant’s account. Accordingly, the Plaintiff’s assertion that the transfer was insufficient to acknowledge that the transfer was made under the name of 1B.

D. Whether the remittance Nos. 3 and 4 of the instant case constitutes a fraudulent act

(1) If a debtor donated his/her own property to another person under excess of his/her obligation, such act would constitute a fraudulent act, barring any special circumstances. However, in cases where the debtor’s joint security of other creditors is reduced by repaying his/her obligation to a certain creditor under excess of his/her obligation, the repayment is not, in principle, a fraudulent act unless the debtor, in collusion with some creditors, made performance with the intent to prejudice other creditors, and thereby doing so. However, in cases where the creditor seeking revocation of a fraudulent act claims that the debtor’s act of paying money to the beneficiary was a donation of the debtor’s existing obligation, it constitutes a denial of facts as alleged by the creditor, and as seen in the above legal principle, there is a significant difference between the debtor’s act of paying money and the creditor’s assertion and proof depending on whether it was a donation or repayment. Accordingly, in order to be recognized as a fraudulent act, it should be proved that the act of paying money constitutes a donation, but it constitutes an intent to harm the creditor, etc. (see, e.g., Supreme Court Decision 2005Da68675.).

(2) 서BB의 이 사건 제3, 4번 송금행위가 증여인지에 관하여 본다. 서BB은 피고에게 이 사건 제3, 4번 송금을 한 사실은 앞서 본 바와 같고, 변론 전체의 취지에 의하여 인정되는 다음과 같은 사정 즉, ① 서BB은 원고로부터 2013. 6. 3.경 부가가치세 납부고지를 받은 점, ② 서BB은 위 납부고지를 받은 지 2개월여 후인 2013. 8. 20. 이 사건 부동산을 매도한 점, ③ 서BB은 이 사건 부동산의 매도대금 중 6,000만 원을 아버지인 피고에게 송금한 점 등에 비추어 보면, 서BB은 피고에게 6,000만 원을 증여한 것으로 보인다(을 제2호증의 기재 및 이 법원의 ▲▲농협 ▲▲지점장, 주식회사 ▲▲은행장에 대한 각 금융거래정보제출명령 회신결과에 의하면, 피고는 2012. 10. 8. 정기예탁금을 해지한 후 액면금 6,000만 원의 수표를 발행하였고, 위 수표는 엄KK의 계좌에 입금된 사실을 인정할 수 있으나 위와 같은 사정만으로 서BB이 원고에게 증여하였다는 위 사실 인정을 방해하지 아니한다).

(3) Even if the act of remittance No. 3 and No. 4 of the instant case was remitted to the Defendant’s debt repayment title as of October 8, 2012, the said act constitutes a fraudulent act if the obligor in collusion with a certain creditor under excess of his/her liability and performed performance with the intent to prejudice other creditors. In particular, it should be proved by the person who asserts that the obligor was a fraudulent act. Whether the obligor performed performance with the intent to prejudice other creditors in collusion with some creditors should be determined by comprehensively taking into account all the circumstances, including whether the obligor’s claim against the obligor exists, whether the beneficiary was actually paid to the obligor, whether the beneficiary received the repayment from the obligor, the relationship between the obligor and the beneficiary, the recognition of the obligor’s ability to repay, the act of the beneficiary before and after the repayment, the circumstances of the obligor and the beneficiary at the time, and the circumstances surrounding the repayment (see, e.g., Supreme Court Decision 2004Da10985, Mar. 25,

In light of the following circumstances acknowledged by Gap evidence Nos. 1, 2, and 6 and the purport of the entire pleadings, it is reasonable to view that SeoB performed its obligations with intent to harm other creditors in collusion with the defendant.

① Even if the Defendant lent KRW 60 million to SeoB on October 8, 2012, the payment period for the loan claim was not fixed.

② Around 2006, the Defendant and the bookB had relatively detailed knowledge of the property situation of the bookB, such as: (a) the opening of the account was difficult due to the bad credit standing of the bookB; and (b) the Defendant and the bookB knew that the account was being used at the time of transfer No. 3 and No. 4 of this case.

③ On August 20, 2013, two months after receipt of the notice of the payment of value-added tax, SeoB sold the instant real estate, and SeoB did not have any property other than the instant real estate as seen earlier.

④ If the secured debt amount of the right to collateral security established on the pertinent real estate out of KRW 235 million was excluded from KRW 131,319,339, the most amount out of the purchase price was remitted to the Defendant.

⑤ In light of the fact that the Defendant is the father of SeoB, SeoB did not have any particular property other than the instant real estate; SeoB had the possibility of receiving false tax accounting at the time to be subject to criminal punishment; and SeoB lost the ownership of the real estate owned by property division due to division of property around July 29, 2013; and around that time, SeoB appears to have been divorced, the Defendant, the father, seems to have been fully aware of the sales process of the instant real estate; the source of remittance funds No. 3 and No. 4; and the aggravation of the ability to repay SeoB, etc.

(4) We examine the defendant's argument that is a bona fide beneficiary. Since the beneficiary's bad faith is presumed in a lawsuit seeking revocation of a fraudulent act, the beneficiary has the burden of proof against himself/herself. The fact that the beneficiary knew that he/she was a bona fide beneficiary is a bona fide beneficiary is the beneficiary. In light of the following circumstances, i.e., the defendant was relatively detailed about the status of the SeoB's property as seen earlier as the father of SeoB, i.e., ① the defendant was aware of the status of the SeoB's property as seen earlier, ② the defendant could have been aware of the disposal of the real estate of this case, remittance, source of funds, and aggravation of BB's ability to repay, as seen earlier, the evidence submitted by the defendant alone is insufficient to recognize that the defendant was a bona fide beneficiary, and there is no other evidence

E. Sub-committee

The remittance of this case No. 3 and No. 4 to the defendant of the SuB shall be revoked by fraudulent act based on the gift contract, and since it is apparent in calculating that the remittance amount does not exceed the amount of the plaintiff's preserved claim, the defendant is obligated to pay to the plaintiff losses for delay at a rate of 5% per annum as stipulated in the Civil Act from the day following the date this judgment becomes final and conclusive to the day of full payment, as requested by the plaintiff.

3. Conclusion

The claim of this case is justified within the scope of the above recognition, and the remainder is dismissed as there is no ground.