In the revocation of a fraudulent act, the scope of revocation and return shall be limited to the smaller of the Plaintiff’s preserved claim, the Defendant’s interest, and the B’s joint collateral, whichever is less.

In the event that the debtor becomes liable for excess of his/her obligation only by means of a fraudulent act, the creditor can only cancel only the part of the part which became insufficient for the joint security of his/her claim, within the limit of his/her claim amount, and cannot cancel all of his/her act.

2011 Gohap 18686 Revocation of Fraudulent Act

Korea

KimA

August 14, 2012

September 4, 2012

1. The contract of donation between Defendant KimA and Nonparty LB shall be revoked within the limit of OOOOOB, which was concluded on April 20, 209.

2. Defendant KimA shall pay to the Plaintiff 5% interest per annum from the day following the day when this judgment became final and conclusive to the day of full payment.

3. The plaintiff's remaining claims are dismissed.

4. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. MaximumB is the Defendant’s mother.

B. On June 28, 2006, the largestB sold the shares of 257 OO-Gu land and 263-3 land (hereinafter collectively referred to as the "real estate of this case") to O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-2's shares in the remainder of 206 April 20, 209, respectively.

E. Meanwhile, as of October 11, 201, the director of the Namcheon District Tax Office, upon the Plaintiff’s decision, determined OOOO and OOOOOO of global income tax on the transfer of the instant real estate to the largestB, and served a tax payment notice on December 31, 2010 and November 30, 2009 respectively. As of October 11, 2011, the maximum BB defaulted, and the amount in arrears reaches the total amount of OOO(=OOOO of capital gains tax + additional dues + OOO of capital gains tax + the principal tax + OOOO of global income tax + the additional dues + the amount in arrears of global income tax + the amount in arrears (hereinafter collectively referred to as “instant tax claim”). [The grounds for recognition], the fact that there is no dispute over the instant tax claim, Gap’s evidence Nos. 1 through 5 (including the number), and each evidence No. 2, the purport of the entire pleadings as a whole.

2. The assertion and judgment

A. The plaintiff's assertion

The plaintiff asserts that, in order to avoid the disposition of capital gains tax upon the transfer of the real estate in this case, most BB donated OOOO to the defendant, who is a dependent, caused the excess of debt, so the above donation contract between BB and the defendant should be revoked as a fraudulent act. The defendant is obligated to pay the above OOOO as a donation to the plaintiff.

(b)the existence of preserved claims;

1) In principle, a claim that can be protected by the obligee’s right of revocation is established prior to the occurrence of an act that can be seen as a fraudulent act. However, it is highly probable that the legal relationship has already occurred at the time of the fraudulent act, and that the claim should be established in the near future. In fact, where a claim is established as a result of realizing the possibility in the near future, the claim may also be preserved by the obligee’s right of revocation (see Supreme Court Decision 2002DaOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO). Furthermore, the amount of preserved claim includes the interest or delay damages incurred after the fraudulent act and the additional dues and increased additional dues prescribed in Articles 21 and 22 of the National Tax Collection Act are the kind of incidental tax imposed in the meaning of interest on arrears if national taxes are not paid by the deadline for payment, and if national taxes are not paid by the deadline for payment without the obligee’s right of revocation, the additional dues and increased additional dues are naturally established by 607.

2) On April 20, 2009, as seen earlier, it is highly probable that the transfer of the real estate of this case, which serves as the basis for the establishment of the Plaintiff’s taxation claim, was already made in the near future, at the time the obligor most BB made the instant donation to the Defendant on April 20, 2009. In fact, the possibility was realized in the near future after the said donation, and the said claim was established. Thus, the Plaintiff’s taxation claim of this case can be the preserved claim of the obligee’s right of revocation.

C. Establishment of fraudulent act

1) According to the above facts, the maximum BB's active property at the time of April 20, 2009 was an OOE, and the small property was anticipated to occur within the nearest time to OOOE, despite the fact that there was an OOE in the instant tax liabilities, which was anticipated to occur within the nearest time to OOE, and the maximum BB was donated to the Defendant and held only OOE (=OOOE - OOOOE - OOOOOE - OOOOOOO) that did not reach the above tax liabilities, and the above donation was ultimately deemed to be a fraudulent act against the Plaintiff, the creditor, and the intent of the most BBB, the debtor, and the defendant's bad faith is presumed.

2) As to this, the Defendant asserted that the maximumB made payment to the Defendant in money irrelevant to the purchase price of the instant real estate was acquired in good faith by the Defendant, but there is no evidence to acknowledge it (in light of the overall purport of the pleadings, the Defendant, who is a parent of the largestB, was subject to taxation, such as capital gains tax, etc. equivalent to the maximum BB due to the sale of the instant real estate at the time of the instant donation, and the maximum BB, due to the Defendant’s donation, knew that there was a lack of assets to pay the said taxes).

(d) Scope of cancellation and reinstatement;

1) Therefore, the instant donation contract concluded between the Defendant and the largestB shall be revoked as a fraudulent act, and the Defendant shall return the money donated from the largestB to its original state. Since the right to revoke a fraudulent act aims to preserve the joint collateral of claims, the scope of revocation is limited to the extent necessary and sufficient to preserve the joint collateral. Therefore, in a case where the obligor’s status becomes excessive only by means of a fraudulent act, it is sufficient for the obligee to revoke only the portion that was insufficient to secure the joint collateral of the claim, among which the fraudulent act is aggravated, to the extent of his/her claim amount, and the entire act shall not be revoked (see Supreme Court Decision 2010DaOOOO, August 19, 2010).

2) In the instant case, the scope of cancellation and return should be limited to the smaller of the Plaintiff’s preserved claim, Defendant’s profit amount, and most BB’s joint collateral shortage. As the Plaintiff’s preserved claim is an OO member in total of tax claims calculated on October 11, 201, the date for the instant lawsuit, as claimed by the Plaintiff, and the Defendant’s profit amount is an OO member, and the maximum BB’s joint collateral shortage is an OO member (i.e., OO member - OOO member). Thus, the scope of cancellation and return in the instant case is an OO member.

E. Sub-decision

The gift contract of this case concluded between the defendant and the lowestB shall be revoked within the limit of the OOO, and the defendant shall be obligated to pay to the plaintiff delay damages calculated at the rate of 5% per annum as provided by the Civil Act from the day after the date when the judgment became final and conclusive to the day of full payment.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.