Daejeon District Court 2013Kadan206099 ( October 13, 2013)

Revocation of Fraudulent Act

The gift contract of this case constitutes a fraudulent act

Article 406 of the Civil Act

2013Na102846 Revocation of Fraudulent Act

Korea

AAA

October 31, 2013

December 12, 2013

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The gift contract concluded on March 17, 2010 with respect to the real estate in the separate sheet (hereinafter referred to as "share of the real estate in this case") between the defendant and AB shall be revoked within the limit of the OO members.

The defendant shall pay to the plaintiff OOO and the plaintiff 5% interest per annum from the day following the day when the judgment of this case became final to the day of complete payment.

2. Purport of appeal

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

1. The reasoning of the judgment of this court is as follows, in addition to the part concerning the defendant's argument stated in the fourth sentence of the judgment of the court of first instance from the third third to the fourth sentence of the judgment of the court of first instance, and the part concerning the judgment of the court of first instance is as stated in the judgment of the court of first instance, and thus, it is cited by

3) As to this, the Defendant, around January 9, 2009, lent an apartment building owned by the Defendant as a security to AB as business fund and lent it to AB, and the instant real estate share was donated by AB under the pretext of payment in kind. Thus, the Defendant did not constitute a fraudulent act because it constitutes a lawful repayment of debt.

According to the evidence Nos. 1 and 5, the defendant was involved in a traffic accident on November 14, 1995 and received OOOOO's compensation on or around March 23, 1998. The defendant completed the registration of transfer of ownership on March 13, 201 with respect to 643 OO-dong 6, 1205, OO-dong 643 6, and 1205, OO-dong 643, 1205, and completed the registration of establishment of a mortgage on January 9, 209. However, even though the above recognition alone is insufficient to recognize that the defendant acquired the ownership of the above apartment as a traffic accident compensation or that the defendant lent OOO-dong to OB, the defendant's assertion that the donation contract of this case was reasonable.

Even if a loan claim against the defendant's homeB is recognized, the act of the debtor's act of offering his sole property to any one of the creditors as payment in kind becomes a fraudulent act in relation to other creditors (see, e.g., Supreme Court Decision 2004Da7873, Nov. 10, 2005). AB's act of giving the real estate share to the defendant, which is the only property of the defendant, for payment in kind, constitutes a fraudulent act detrimental to the interests of other creditors, such as the plaintiff, etc.

4) In addition, the Defendant asserts to the effect that the instant gift contract made by accord and satisfaction with respect to the loan obligation with respect to the loan obligation with respect to AB was not a fraudulent act, since the Plaintiff’s claim against AB arose on January 8, 2009, and the date of the instant donation contract was on March 17, 2010, and the Plaintiff’s payment deadline for the tax claim was on January 31, 2012 thereafter, and thus, the Defendant’s loan claim prioritys with respect to the Plaintiff’s tax claim, and there is no reason to assume the Defendant’s liability with respect to the default of tax after the instant donation.

However, as seen earlier, it is common to view that the Defendant’s claim for a loan against Ansan is not recognized, and even if the above loan claim is recognized, it is sufficient that the claim preserved by the obligee’s right of revocation has been incurred before the fraudulent act, and that the claim arising prior to the fraudulent act other than the obligee’s right of revocation is repaid through the procedure of enforcement in accordance with the principle of equality of creditors from the obligor’s responsible property recovered by the exercise of obligee’s right of revocation to the obligor. As seen earlier, as long as the Plaintiff’s tax claim was established prior to the gift contract of this case, the Plaintiff may cancel the gift contract of this case, which is a fraudulent act, and even if the tax delinquency has occurred after the gift contract of this case, there is no obstacle to the establishment of the fraudulent act (as alleged by the Defendant, even if the Defendant’s claim for a loan was established before the Plaintiff’s tax claim, the Defendant’s claim for a loan is repaid through the execution procedure after the revocation of the fraudulent act

5) In addition, the Defendant did not know that the instant donation contract was detrimental to other general creditors including the Plaintiff.

In light of the following circumstances, which are acknowledged by the above evidence and the purport of the entire pleadings, i.e., AB had been well aware of the imposition of capital gains tax due to the disposal of its own real estate and the subsequent tax investigation, etc. on around 2009; in light of the relationship between AB and the defendant, the defendant seems to have been well aware of the economic situation of AB; and the defendant also argued that the loan was made to AB due to the shortage of funds due to the lack of funds due to the lack of funds, the evidence submitted by the defendant alone cannot be deemed to have reversed the presumption of bad faith against the defendant's intention to commit suicide; and there is no other evidence to prove that the defendant was bona fide.

2. If so, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is justified with this conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.