Whether the only act of donating the real estate owned by a clan to a clan member constitutes a fraudulent act

Where each of the real estate owned by a clans is donated to the members of the clan in the situation that the clan bears tax liability, and the active property of the clan has become de facto de facto lost, each donation contract shall be cancelled as a fraudulent act detrimental to the taxation claim.

Article 406 of the Civil Code, Right of Revocation

1. A. A. The gift contract concluded on February 21, 2007 between Defendant ○○ and Nonparty ○○○○○ and Nonparty ○○○○○○ is revoked on February 21, 2007.

B. Defendant ○○○○ has performed the procedure of cancelling the registration of cancellation of all of the shares out of the shares of ○○○○ and the shares of ○○○○○ and the shares of ○○○○○ and the shares of ○○○○○ and the shares of ○○○ and the shares of ○○○ and the shares of ○○○○○ and the shares of ○○○○ and the shares of ○○○○○ and the shares of

2. A. A. The gift agreement concluded on February 21, 2007 between Defendant △△ and Nonparty ○○○○ ○○ is revoked on February 21, 2007.

B. Defendant YUBE executes the procedure for registration of cancellation of the entire registration of the transfer of ○○○○○○ and the entire part of the shares among the shares among the shares among the shares of ○○○○○ and the shares of ○○○○○○ and the shares of ○○○○ and the shares of ○○○○○ and the shares of ○○○○○○○ and the shares of ○○○○○○ and the shares of

3. A. On February 21, 2007, the gift contract concluded between Defendant △△△△ and Nonparty ○○○○○○○ is revoked on February 21, 2007.

B. Defendant △△△ has performed the procedure for registration of cancellation of the entire transfer registration of ○○○○○○○○○○, which was completed on February 23, 2007 by receipt No. 19762, on the third real estate listed in the separate sheet, on the part of Nonparty ○○○○○○○○○○○ and the third real estate listed in the separate sheet.

4. A. On February 21, 2007, the agreement of donation concluded between Defendant’s place of residence and Nonparty ○○○○ ○○ ○○ mar in the attached list shall be revoked.

B. The court below’s decision at the time of the non-party’s opening of a branch of a branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch

5. The costs of lawsuit are assessed against the Defendants.

The same shall apply to the order.

1. Basic facts

A. On December 27, 2006, the non-party clan on which the transfer income tax was imposed on the non-party ○○○○○ Branch of a clan (hereinafter referred to as the "non-party clan") was notified of KRW 175,962,810 from the head of ○○ Tax Office because he did not pay the transfer income tax after transferring the non-party ○○○○○ Branch of a clan on 27 December 2006.

B. The gift agreement between the non-party clan and the defendants

(1) On February 21, 2007, the non-party clan entered into a donation agreement with Defendant ○○○ on the first real estate listed in the separate sheet, and on February 23, 2007, on the ground of the above donation agreement, the non-party clan completed the registration of ○○○○ District Court’s ○○○○○○○○ and the registration of transfer of all the shares of the non-party clan 2 No. 19760. 2.

(2) On February 21, 2007, the non-party clan entered into a contract on the donation of the real estate No. 2 as indicated in the attached list with the defendant YU on February 21, 2007, and on February 23, 2007, the non-party clan completed the registration of ○○ District Court ○○○○ Branch ○○○ and the registration of the transfer of all the shares among the ○○○○ ○○ ○○ Ma○ Ma○ Ma○ Ma

(3) On February 21, 2007, the non-party clan entered into a donation agreement with the defendant △△△ on the third real estate listed in the separate sheet, and on February 23, 2007, the non-party clan completed the registration of ○○ District Court ○○○○○○○○ Branch and the registration of ○○○○○○○○○ Branch No. 19762 on the ground of the above donation agreement on February 23, 2007.

(4) On February 21, 2007, the non-party clan entered into a contract of donation on the real estate in the attached list No. 4, and on February 23, 2007, the non-party clan completed the registration of transfer of ownership between the plaintiff and the defendants listed in the above paragraphs (1) through (4) as the registration of ○○ District Court ○○○○○○○○64 in the name of the defendant's branch court and the receipt of the above real estate due to the above donation contract (hereinafter "each donation contract between the plaintiff and the defendants on February 21, 2007"), and "real estate Nos. 1 through 4, listed in the attached list" is "each of the real estate in this case.

C. Property status of the non-party clan

From 198 to 2006, China transferred all of the real estate possessed by it by gifting each of the real estate in this case, and there was no particular property other than that.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2, and 9, each of Gap evidence Nos. 1, 2, and 3, the purport of the whole pleadings

2. Judgment on the plaintiff's claim

A. The plaintiff's assertion

In the circumstance that Nonparty 175,962,810 won is liable to pay taxes, Nonparty 1 donated each of the instant real estate to the Defendants without any specific property other than each of the instant real estate. Since each of the instant gift contracts is a juristic act detrimental to Plaintiff’s taxation rights, the registration of ownership transfer in the name of the Defendants with respect to each of the instant real estate shall be cancelled and restored

B. Determination

(1) 국세기본법 제21조 제2항 제2호에 의하면 예정신고납부하는 소득세의 경우 그 성립 시기는 과세표준이 되는 금액이 발생한 달의 말일로 규정되어 있고(대법원 1993. 3. 23. 선고 92누7887 판결 참조), 소득세법 제105조 제1항 및 제106조 제1항에 의하면 토지의 양도에 대한 양도소득세는 예정신고자진납부하는 소득세로 규정되어 있으므로, 위 1의 가.항 기재 토지 양도에 따른 원고의 소외 종중에 대한 양도소득세 조세채권은 이 사건 각 증여계약의 체결 시점인 2007. 2. 21.보다 앞선 2006. 12. 31. 성립되었다고 할 것이다.

(2) Meanwhile, according to the facts acknowledged in the above 1-C., the non-party clans are aware that the gift of each of the instant real estate to the non-party clans in fact became insolvent. Accordingly, the non-party clans are deemed to have become insolvent (the defendant claims that the non-party clans are not insolvent because it sells forest land equivalent to 900 million won and holds money, but there is no evidence to acknowledge the above facts).

(3) In addition, the beneficiary's bad faith is presumed in a lawsuit seeking revocation of fraudulent act (the defendant's each real estate of this case has 10 graves of the ancestor members managed by the defendants, so the defendants refused to move to protect the clan in order to protect the grave, and received a divided donation of the forest in the part where the grave is located, and since the property value of the real estate of this case is almost little, each of the gift contracts of this case was not known that it constitutes a fraudulent act. However, it is insufficient to find that the defendants followed the presumption and that the defendants did not know that the non-party clan was insolvent due to each of the gift contracts of this case).

(4) Thus, each contract of this case shall be revoked as a fraudulent act detrimental to the plaintiff's taxation right, and the defendants shall restore to the duty to restore each share of this case or cancel the registration of transfer of ownership under each order of this case, and the plaintiff's claim for this shall be with merit.

3. Conclusion

Therefore, we decide to accept the plaintiff's claim and it is so decided as per Disposition.