Suwon District Court-2013-Shap-70351 ( November 21, 2013)

a donation contract made between the defendant and the defaulted taxpayer constitutes a fraudulent act

a donation contract made between the defendant and the defaulted taxpayer constitutes a fraudulent act

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

Seoul High Court 2014Na2001445 Revocation of Fraudulent Act

Korea

○○

2014.09.16

oly 16, 2014

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

A. The primary purport of the claim

Upon cancelling the contract of donation between the Defendant and NAO on April 30, 2009, the Defendant shall pay to the Plaintiff 5% interest per annum from the day following the date of the conclusion of the judgment of this case to the day of full payment.

B. Preliminary purport of claim

On April 30, 2009, the Defendant’s and NAO’s cancellation of the title trust agreement with respect to the deposit account of the No.O-O-O-O-O-O-O-O-O-O-O-O) in the name of the Defendant, and the Defendant shall pay to the Plaintiff 5% interest per annum from the day following the day when the instant judgment became final and conclusive to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's preliminary claim is dismissed.

1. Scope of the judgment of this court;

In the first instance court, the Plaintiff claimed the cancellation of the gift agreement between the Defendant and the JeonO on April 30, 2009 and compensation equivalent to the equivalent amount, and sought the cancellation of the contract for the title trust of the deposit owner in the name of the Defendant and the JeonO on April 30, 2009 and sought the compensation equivalent to the equivalent amount. The court of first instance accepted the conjunctive claim without accepting the main claim and accepted the conjunctive claim. Since only the Defendant appealed, this court is to decide only the conjunctive claim.

2. Basic facts

A. On April 15, 2009, an OOO entered into a contract for the sale of No. 801 and No. 802 of the 8th floor No. 8 of the Madrida (hereinafter “each of the instant real property”) to Madrida (hereinafter “the instant real property”) to MadO.

B. As a result, the head of an office of tax office affiliated with the Plaintiff did not file a final return on the tax base under the above sales contract on December 9, 201, he/she determined and notified that he/she will pay either the capital gains tax, additional tax, and the foreign income tax OOO under the above sales contract, but he/she did not pay it by OO but became an OO member on February 28, 2013, which was the date of the instant lawsuit.

C. On April 30, 2009, the NAO deposited the above money into the account of the Defendant’s NAO branch (Account Number O-O-O-OO, hereinafter “the account of this case”) (hereinafter “the deposit”).

D. Around April 30, 2009, at the time of the deposit of this case, pre-O was active property, and as a small property, it was in excess of obligations due to the tax liability equivalent to the capital gains tax amount of the Plaintiff.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, 3 and 4 (each number is included; hereinafter the same shall apply), the purport of the whole pleadings

3. The plaintiff's assertion

The Plaintiff asserts that since the act of title trust with respect to the account in this case constitutes a fraudulent act, the above title trust agreement should be revoked, and the Defendant, as such restitution, has the obligation to pay the Plaintiff the equivalent compensationOO members and damages for delay.

4. Determination

A. Account title trust and fraudulent act

In a case where a deposit contract is concluded through a real name verification procedure under the Act on Real Name Financial Transactions and Confidentiality and the fact-finding is clearly indicated in the statement of the deposit contract, it would normally be reasonable to interpret that the deposit title holder, the actor, and the intent of a financial institution acting for him/her is to be the party to the deposit contract in the deposit contract, and it would be reasonable to clarify the legal relationship as to the party to the deposit contract. Furthermore, such legal principle as to the interpretation of the party to the deposit contract should be equally applied in cases where the deposit title holder himself/herself appears in the financial institution and entered into the deposit contract or a third party, such as the fund contributor, etc. entered into the deposit contract as the proxy by delegation by the deposit title holder (see Supreme Court en banc Decision 2008Da45

Therefore, with respect to this case, NAO, the contributor, through a trust agreement under the name of deposit owner between NA and the Defendant, may seek the return of money deposited in the account of this case against the Defendant. However, with respect to external relations between financial institutions and third parties, insofar as the trust under the name of deposit owner is not terminated, a financial institution or a third party may not seek or seize the money deposited in the account of this case under the name of the Defendant’s name with claims against NAO. Therefore, the trust under the name of deposit owner between NAO and the Defendant constitutes an act of reducing liability property in relation to the general creditors of NAO, and thus, it constitutes a legal act subject to revocation of fraudulent act (Therefore, the Defendant’s assertion that the title trust of the account of this case does not constitute a fraudulent act, and that the act of individual deposit per se should not be revoked as a fraudulent act is not accepted).

(b) Claims for preservation;

“The claim that can be protected by the obligee’s right of revocation is, in principle, arisen before the act was committed. However, there is high probability that at the time of the fraudulent act, there has already been legal relations forming the basis of establishment of the claim in the near future, and that the claim should be established in the near future because the possibility of realizing the claim in the near future, the claim may also become a preserved claim of the obligee’s right of revocation. Here, the “legal relations forming the basis of establishment of the claim” is not limited to the legal relations between the parties pursuant to an agreement, but shall be deemed to include quasi-legal relations or factual relations with the probability of establishment of the claim (see Supreme Court Decision 2002Da42957, Nov. 8, 2002).” Although there is no dispute between the parties that the Plaintiff’s priorO’s tax claim against the Plaintiff’s priorO accrued after the title trust on the account of this case, it was highly probable that the transfer income tax claim of the Plaintiff was actually based on the income that became the basis of the transfer income tax claim.

(c) Fraudulent act and insolvency;

Since there is no dispute between the parties that the pre-OO was in excess of the obligation at the time of title trust of the instant account, the act that the pre-O trusted to the Defendant in the name of the deposit owner in the instant account constitutes a fraudulent act detrimental to general creditors such as the Plaintiff by reducing the obligor’s liability property, and the Defendant’s bad faith is presumed presumed (the Defendant alleged that he was the good faith, but there is no evidence to acknowledge that the Defendant was the good faith notwithstanding the presumption of bad faith).

D. Sub-determination

Therefore, the deposit owner title trust agreement entered into between the pre-OO and the defendant regarding the instant account is a fraudulent act. Thus, this agreement is revoked within the scope of the defendant's revenue under the trust agreement, and the defendant is obligated to pay the plaintiff damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day following the day when the judgment became final and conclusive to the day of complete payment.

5. Judgment on the defendant's assertion

The Defendant asserts to the effect that the amount deposited into the account of this case pursuant to the instant deposit account title trust agreement cannot be compensated for value because allO used the same as the Defendant actually acquired profit. The obligee’s right of revocation is a system to return the property deviating from the obligor’s general property to the beneficiary or a subsequent purchaser for all creditors in order to preserve the obligor’s property, which is the joint collateral for the claim. Since the exercise of the obligee’s right of revocation only affects the relative relationship between the obligee and the beneficiary or the subsequent purchaser, it does not mean that the obligor acquires any right against the beneficiary or the subsequent purchaser due to the exercise of the obligee’s right of revocation. Therefore, the obligee who exercises the obligee’s right of revocation cannot assert any deduction from the value compensation (see, e.g., Supreme Court Decisions 9Da63183, Jun. 1, 2001; 2007Da84352, Apr. 24, 2008).

6. Conclusion

If so, the plaintiff's conjunctive claim of this case should be accepted, and the judgment of the court of first instance is justified with this conclusion, and the defendant's appeal against this is dismissed as it is without merit. It is so decided as per Disposition.