The act of gratuitous donation to the spouse in excess of debt due to default, etc. constitutes a fraudulent act.

The act of making a donation to his/her spouse during the period of his/her tax liability owed by a delinquent taxpayer in excess of his/her liability constitutes fraudulent act as a result of the lack of joint security of general creditors.

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

Suwon District Court 2018Kadan54099 Revocation of Fraudulent Act

Korea

grandchildren 00

Pleadings without Oral Proceedings

on October 31, 2019

1. The contract of donation concluded on March 2, 2017 with respect to one-half of the real estate stated in the attached Table between the Defendant’s handy and the Nonparty’s best will shall be revoked.

2. As to the portion of the real estate stated in the attached list to Nonparty 1’s largest, Defendant Dog-do shall implement the procedure for registration of cancellation of ownership transfer registration completed under No. 8602, Mar. 9, 2017, which was completed on March 9, 2017.

3. Litigation costs are borne by the Defendant.

1. Formation of secured claims;

A. The Plaintiff’s reason for imposing capital gains tax on Nonparty 1*

1) Nonparty 1: (a) on March 15, 2017, Nonparty 1: (b) on KRW 234,963,000, KRW 266,700; and (c) on KRW 00,000,000,000 for KRW 00,000 for KRW 00 on April 7, 2017, Nonparty 1: (a) transferred ownership of KRW 42,100,00 for the successful bid price; and (b) on KRW 262,00,00 for the instant real estate ②, the instant real estate ② without filing a transfer income tax report on KRW 65,530,740 on November 1, 2017; and (b) notified Nonparty 1’s real estate auction certificate of KRW 234,963,00 for the instant real estate ② as the successful bid price at KRW 42,00,000 for the instant real estate.

2) As of the date of filing a lawsuit, * The maximum* is delinquent in the transfer income tax of KRW 74,573,90 (hereinafter referred to as “instant taxation claim”) including additional KRW 9,043,160, as of the date of filing a lawsuit, and the details are as follows (A evidence 3 of arrears).

(b) the most* real estate donation.

L*** On March 15, 2017, on March 2, 2017, 2017, the real estate ① in this case entered into a donation contract (hereinafter referred to as “the donation contract”) with respect to the real estate * 1/2 of the share of the real estate listed in the separate sheet (hereinafter referred to as “share of the real estate in this case”) which is remaining after the transfer of ownership * on March 2, 2017, and completed the registration for transfer of ownership to the Defendant as the receipt of No. 0000 on October 0, 200 (the certificate of the registration No. 4 in this case).

(c) Relationship between the parties;

M** is the spouse of the highest**, and the plaintiff has the best** the obligation to pay national taxes (the family register No. 5 of the family register).

2. Formation of preserved claims;

A. As to the preserved claim of the obligee's right of revocation, the Supreme Court of Korea requires that, in principle, a claim which may be protected by the obligee's right of revocation has occurred before the act was committed, but it is highly probable that the legal relationship which would be the basis of the establishment of the claim has already occurred at the time of the fraudulent act, and that the claim would be established by the near future legal relationship. In fact, in the near future, the probability of the establishment of the claim is realized, the claim may also become a preserved claim of the obligee's right of revocation, and the legal relationship which forms the basis of the establishment of the claim shall not be limited to the legal relationship under the agreement between the parties, but shall be widely included in the quasi-legal relationship or fact-finding with the probability of the establishment of the claim (see, e.g., Supreme Court Decision 2002Da42957, Nov. 8, 202).

B. From the perspective of the issue, although the Plaintiff’s maximum** at the time of each gift contract of this case, the real estate ① was sold by auction of real estate at the time of sale. The process of sale was a failed inspection on the sale date of December 26, 2016, a successful bid of KRW 266,70,000 on the sale date of February 6, 2017, permission of sale decision on February 13, 2017, and payment on March 15, 2017, the highest** was the date of successful bid on February 6, 2017 or the court’s decision on February 13, 2017, and it was probable that the transfer income tax was imposed on the transfer real estate of this case, and the Plaintiff’s right to receive transfer income tax was established in the future by transferring the transfer real estate of this case, and it was probable that the transfer income tax was established in the nearest legal relationship with the Plaintiff’s right to revocation of transfer income tax by 17 months.

3. Fraudulent act;

L*** On March 9, 2017, which was at the time of the donation of the shares in the instant real estate, the positive property** is KRW 57,007,050, and the negative property is KRW 116,673,90, which was a gift of the instant real estate to the Defendants, and the state of exceeding the obligation has been deepened as the gift of the instant real estate to the Defendants.

Therefore, most** in excess of debt responsibilities of this case against the plaintiff is that the act of donation to his defendant during the tax liability of this case constitutes a fraudulent act as a result of a lack of common security of the plaintiff and other general creditors.

4. The date on which he becomes aware of a fraudulent act;

On October 10, 2018, the Plaintiff was aware of the fact that the instant real estate was transferred in the name of the Defendant only after printing out and reviewing computerized data on the delinquent taxpayer’s property on October 10, 2018 in order to review the suspicion of property concealment to adjust the delinquent national tax against **. (Electronic data on the delinquent taxpayer’s property).

5. Intention to injure the debtor;

*** The act of gratuitous donation by the debtor while in excess of his obligation constitutes a fraudulent act is as mentioned above, and at the same time, the debtor's will to understand is also presumed.

However, the highest** was aware of the fact that although there was a duty to report and pay capital gains tax without reporting the real estate ① in this case, the real estate remaining after one's own care was donated to the defendant, who is the spouse, and there was a shortage of joint security due to such act, and the obligees would be dismissed.

6. Bad faith of the defendant

L**** was well aware of the circumstances that the gift of this case would cause the Plaintiff, etc. to harm the Plaintiff, which is the creditor, due to the decrease in its property due to the decrease in the joint security of the Plaintiff and other general creditors. As such, the Defendant’s bad faith is presumed to be presumed to be the beneficiary, as long as it is recognized as the intention of ***’s intention, and the status relationship between the Defendant and the spouse * * the spouse * free of charge and the circumstances leading up to the donation of this case. In full view of the above, it is reasonable to deem that the Defendant was well aware of the circumstances that the gift of this case contract of this case deepens ***’s obligation, fraudulent act to evade tax obligations, and that it would prejudice the Plaintiff.

7. Restoration of its original state;

As above, I would like to cancel the best**'s fraudulent act and seek to cancel the registration of transfer of ownership in the name of the defendant on the attached list as a result of its reinstatement.

8. Conclusion

The gift contract entered into on March 2, 2017 with respect to the real estate stated in the separate sheet between the defendant and the best** has the obligation to implement the registration procedure for cancellation of ownership transfer on the ground that the plaintiff's claim has been infringed, and it has the obligation to implement the registration procedure for cancellation of ownership transfer on the ground of restitution.