Whether or not the purchase price has been paid shall not be a standard for determining fraudulent act.

No evidence can be found to acknowledge that a real estate purchaser is a bona fide beneficiary, regardless of whether or not the payment of the above-mentioned purchase price is made or not by purchasing real estate at a price lower than the market price.

Article 30 of the National Tax Collection Act (Cancellation of Fraudulent Act)

1. 피고들의 항소를 모두 기각하낟.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

소외 이○우와 피고 이○우 사이에 별지 목록 제1항 기재 부동산에 관하여 2005. 1. 11. 체결된 매매꼐약을 취소하고, 피고 이○우는 원고에게 87,159,291원 및 이에 대하여 이 판결확정일 다음날부터 다 갚는 날까지 연 5%의 비율에 의한 금원을 지급하라. 소외 이○우와 피고 이○필 사이에 별지 목록 제3항 기재 부동산에 관하여 2005. 10. 17. 체결된 매매계약을 취소하고, 피고 이○필은 원고에게 48,382,789원 및 이에 대하여 이 판결확정일 다음날부터 다 갚는 날까지 연 5%의 비율에 의한 금원을 지급하라.

2. Purport of appeal

The plaintiff's claim corresponding to the cancellation part of the judgment of the first instance shall be revoked and dismissed.

The reasoning of this court's decision is as follows: (a) the testimony of a witness of a party who is contrary to the facts recognized by the court of first instance is additionally dismissed; and (b) the part of the reasoning of the judgment of the court of first instance is 1.C.(3) and 3.(3)(20 to 9.20) and 12(10) are deleted; and (c) the "request against the defendant Kim ○" is deleted; and (d) except that the "Defendant Kim ○" in paragraph (4) 9 is deemed to be "the ○○○" as "the ○○○", and thus, it is identical to the entry of the reasoning of the judgment of the court of first instance, and thus, shall be cited as it is, in accordance with the main sentence of

Therefore, the judgment of the court of first instance is justified, and all appeals by the defendants are dismissed as it is without merit. It is so decided as per Disposition.

[Seoul Central District Court 2006Kahap99512, 2007.04]

1. A sales contract concluded on January 11, 2005 with respect to the real estate listed in Paragraph 1 of the attached Table between Nonparty ○○ and the Defendant shall be revoked within the limit of KRW 174,097,080.

B. In this case, 87,159,291 won and 5% interest per annum shall be paid to the Plaintiff at the rate from the day after the day when this judgment is finalized to the day of full payment.

2. A. A. The sales contract concluded on October 17, 2005 with respect to the real estate listed in paragraph (3) of the attached Table of Real Estate List between Nonparty ○○ and Defendant Lee Jong-soo shall be revoked within the limit of KRW 24,557,087.

B. Defendant Lee Ki-soo shall pay to the Plaintiff 24,557,087 won with 5% interest per annum from the day following the day this judgment became final to the day of complete payment.

3. The plaintiff's claim against the defendant Kim Jong-ju and the remaining claims against the defendant Lee Jong-woo and Lee Lee Jong-soo are dismissed.

4. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant Lee Jong-soo is borne by the Defendant Lee Jong-soo, and the part arising between the Plaintiff and the Defendant Kim Kim-○ is borne by the Plaintiff, and one-half of the part arising between the Plaintiff and the Defendant Lee Jong-soo shall be borne by the Plaintiff, and the remainder shall be borne by

The sales contract was cancelled on January 11, 2005 with respect to the real estate listed in paragraph (1) of the attached Table of Real Estate between Lee Jong-woo and defendant Kim Jong-woo. The contract was cancelled on January 11, 2005. With respect to the real estate listed in Paragraph (1) of the attached Table of Real Estate, Lee Jong-woo shall pay to the Plaintiff the amount of KRW 87,159,291 and the interest rate of KRW 5% per annum from the day following the day when the judgment became final and conclusive to the day of complete payment. As to the real estate stated in Section 2 of the same list, the contract was cancelled on August 15, 2005 between Lee Jong-woo-woo and the defendant Kim Jong-ju, and the pre-sale and the sales contract were cancelled on August 15, 2005, and the contract was cancelled on September 15, 2005; the defendant Kim Jong-soo shall cancel the contract to sell the real estate and the sales contract was cancelled on February 15, 200085.7.1.7.

1.Claims for Coverage

From November 15, 2001, the non-party ○○-dong 000-0, ○○-dong 000, ○○-dong 200-0 operated the mechanical tools, tools, and hardware. The non-party 174,097,080 won, which was established from November 15, 2001 to 2005, bears the obligation to pay value-added tax, capital gains tax, and global income tax (hereinafter referred to as the "tax of this case").

B. Sales contract between ○○ and Defendant Lee ○-woo

On January 11, 2005, Defendant Lee Jong-woo entered into a sales contract on the real estate listed in paragraph (1) of the attached list of real estate owned by Lee Jong-soo (hereinafter referred to as "real estate No. 1 in this case"), and completed the registration of ownership transfer in the name of Defendant Lee Lee-woo on January 20, 2005.

(c) Pre-sale and sales contract between Lee ○ and Defendant Kim ○.

The real estate listed in paragraph (2) of the attached list list of real estate (hereinafter referred to as the "second real estate of this case") was originally owned by Lee ○ and defendant Kim Kim ○ as the shares of 1/2, respectively. However, on August 15, 2005, the defendant Kim ○ concluded a pre-sale and sales contract for the shares of 1/2 of the second real estate of this case among the second real estate of this case with Lee ○○, and completed the provisional registration of the right to claim for share transfer on September 8, 2005 in the name of defendant Kim ○, and the registration of share transfer on February 15, 2006.

(d) Sales contract between ○○ and Defendant ○○.

On October 17, 2005, Defendant Lee Jong-soo entered into a sales contract on the real estate listed in paragraph (3) of the attached list of real estate owned by Lee Jong-soo (hereinafter referred to as "third real estate of this case"), and completed the registration of ownership transfer in the name of Defendant Lee Jong-soo on the same day.

E. The relationship between E.O.B and the Defendants

On March 21, 1953, 1953, ○○ and Kim○-hee married to Defendant Lee Jong-hee and Lee Jong-hee, and Lee ○-hee were his children. The Kim○-hee died on June 18, 1961 and died on June 18, 1961, and was married to Nonparty Kim○-○, and the Defendant Lee Jong-soo was his child, and the Defendant Lee ○-soo was his child.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 8, Gap evidence 2-1 to 6, the purport of the whole pleadings

2. Determination on the claim against Defendant Lee Jong-woo

A. Determination as to the establishment of a fraudulent act (1) requires that, in principle, a claim that may be protected by the obligee’s right of revocation has arisen prior to the commission of a juristic act that can be viewed as a fraudulent act. However, at the time of such fraudulent act, there has already been a legal relationship that serves as the basis for the establishment of the claim, and there is high probability as to the establishment of the claim in the near future based on such legal relationship. In the near future, where the probability is realized and the claim has been established due to its realization in the near

(2) However, according to the above facts, this case's taxation claim against Lee Jong-woo and defendant Lee Jong-woo entered into a sales contract on January 11, 2005 with respect to the real estate No. 1 of this case. At that time, the taxable period of each taxation claim No. 1,3, 5,7,8, and each taxation claim No. 1, 5, 7, and 8 of the tax claim of this case had already been established since the taxable period of the tax claim of this case had expired, and thereafter, the plaintiff had the right to cancel the fraudulent act as to the above sales contract of this case. Accordingly, the above taxation claim of this case had already been established at the time of the above sales contract, and there was a high probability that the above taxation claim should be established in the near future. Accordingly, the plaintiff had the right to cancel the fraudulent act as to the above sales contract.

(3) 또한, 채무자의 재산처분행위가 사해행위가 되기 위해서는 그 행위로 말미암아 채무자의 총재산의 감소가 초래되어 채권의 공동담보에 부족이 생기게 되는 것, 즉 채무자의 소득재산이 적극재산보다 많아져야 하는 것인데, 갑 2호증의 1 내지 3, 갑 3호증의 1 내지 6, 갑 4호증, 을 2호증, 을3호즈의 1 내지 7, 을 4호증, 을 5호증의 1내지 5, 을 6호증의1,2, 을 7호증의 1 내지 4, 을 8호증의 1,2의 각 기재에 변론 전체의 취지를 종합하면, 2005.1.11. 당시 이선우의 적극재산으로 시가 324,000,000원이 이 사건 제1부동산, 시가 38,555,000원의 이 사건 제2부동산의 1/2 지분, 시가 273,872,400원의 이 사건 제3부동산 등 합계 636,427,400원 상당의 부동산이 있었던 반면, 소득재산으로는 이 사건 제1부동산에 설정된 각 근저당권의 피담보채무인 ○○농업협동조합에 대한 110,578,991원의 대출금 채무, 이 사건 제3부동산에 설정된 근저당권의 피담보채무인 주식회사 ○○은행에 대한 35,971,798원의 대출금 채무, 소외 김○수에 대한 236,518,295원의 채무, 95,266,160원의 조세채무(= 성북세무서 42,527,660원 + 종로세무서 45,075,890원 + 동수원세무서 3,987,240원 + 성북구청 3,675,370원) 등 합계 478,335,244원의 채무가 있었던 사실을 인정할 수 있고, 위 소극재산에 이 사건 조세ㅐ무 중 당시 이미 과세기간이 경과한 별지 조세내역표 기재의 순번 1,3, 내지 5,7,8,의 각 조세 합계액인 126,441,520원을 더하면 이○우의 소극재산은 604,776,764원 상당이 되는바, 이 사건 제1부동산의 처분으로 그의 적극재산은 324,000,000원이 감소하여 277,727,400원 상당이 되었으나(피고 이○우가 이○우에게 지급하였다고 주장하는 매매대금 55,809,349원을 더하여도 333,539,749원이 된다) 소득재산은 피고 이○우가 대위변제한 ○○○○협동조합에 대한 110,578,991원의 대출금 채무와 95,266,160원의 조세채무 합계액인 205,845,151원만이 감소하여 398,931,631원이 되었으므로, 결국 이○우가 피고 이○우에게 이 사건 제1부동산을 매각함으로써 이○우의 소극재산이 적극재산을 초과하게 되었다고 할 것이다.

(4) If a debtor sells the real estate owned by him to a third party at a price lower than the market price, thereby causing a shortage of common security for claims, such sales would constitute a fraudulent act in relation to other creditors, barring any special circumstances. The market price at the time of the first real estate in this case would be 324,00,000 won, whereas the sale price at the time of the second real estate in this case would be 261,654,500 won (=205,845,151 won + 55,809,349 won), which is the sales price claimed to have been paid by subrogation, etc., is merely 261,654,50 won (=205,845,151 won + 55,809,349 won). Defendant ○○ also constitutes a fraudulent act against the plaintiff, a general creditor, barring any special circumstances, and Defendant 1 was presumed to have been able to have caused the plaintiff at the time of the above sales contract, and thus, Defendant 1015.

B. Determination on the assertion by Defendant Lee ○-woo

(1) Defendant Lee Jong-woo, who was placed in the situation of selling the pertinent real estate by auction due to the overdue loan and overdue loan, limited to Defendant Lee Jong-woo to purchase the instant real estate. Accordingly, Defendant Lee Jong-woo purchased the instant real estate in KRW 230,000,00,00 in lieu of the payment of the purchase price, and subrogated KRW 92,266,160 in lieu of the payment of the purchase price, and KRW 110,578,91 in cash and KRW 110,578,91 in lieu of the payment of the purchase price, he paid KRW 45,00,000 on April 15, 2005 and KRW 10,809,349 on April 21, 2005. Thus, the above sales contract did not constitute a fraudulent act due to a legitimate legal act, and did not know that Defendant Lee Lee-woo was detrimental to the creditor of the Plaintiff et al.

(2) As long as the creditors' joint security against Lee Jong-woo became insufficient due to purchase of the instant 1 real estate from Lee Jong-woo at a price lower than the market price, it constitutes a fraudulent act regardless of whether to pay the purchase price, and there is no evidence to acknowledge otherwise that the Defendant Lee Il-woo is a bona fide beneficiary, and therefore, the above assertion by Lee Il-woo is without merit.

(c) Method and scope of restitution;

(1) In a case where a contract for sale and purchase of a real estate constitutes a fraudulent act, in principle, the contract for sale and purchase of the real estate shall be revoked and the order shall be cancelled for the restoration of the real estate itself, such as the cancellation of the registration of transfer of ownership. However, in a case where the fraudulent act is conducted between persons other than the mortgagee concerned with respect to the real estate on which the mortgage is established, and the registration of creation of mortgage division is cancelled due to repayment, etc. thereafter, it would result in a violation of fairness and fairness by cancelling the entire contract for sale and purchase of the real estate. Thus, an order for restoration of the real estate itself by cancellation of the contract for sale and purchase would be restored to the portion which was not originally secured. Thus, the right to claim for partial cancellation of the contract for sale and purchase and compensation within the extent of the balance obtained by deducting the secured

(2) However, according to Gap evidence 2-2, Eul evidence 3-1, Eul evidence 8-2, Eul evidence 9-1, Eul evidence 9-1, 3-2, and Eul evidence 9-1 through 3, it can be acknowledged that the above real estate had been completed with the registration of creation of a mortgage over the first real estate before the sales contract for the first real estate between Lee Jong-woo and defendant Lee Jong-woo, the mortgage-mortgage-2, the maximum debt amount of 10,00,000 won and 21,00,000 won and the first and second priority of the second priority, and the registration of establishment of a mortgage over the second priority after the above sales contract was subrogated for 110,578,91 won after the date of the above sales contract, and the registration of establishment of a mortgage over the first real estate of this case was revoked within the scope of 10,500,000 won after the date of conclusion of argument, 300,000 won after the date of conclusion of argument.

(3) In addition, when a creditor exercises his right of revocation, he cannot exercise his right of revocation in excess of his claim amount in principle. Accordingly, a sales contract concluded on January 11, 2005 with respect to the real estate 1 of this case shall be revoked within the limit of KRW 174,097,080, which is the Plaintiff’s claim amount. As such, Defendant ○○ is obligated to pay damages for delay at the rate of KRW 87,159,291, which the Plaintiff sought within the said limit, and the damages for delay at the rate of KRW 5% per annum as stipulated in the Civil Act, from the day after the date

3. Determination as to the claim against the defendant Kim Jong-ju

A. The parties' assertion

(1) On the premise that both a pre-sale agreement and a sales contract concluded on the instant 2 real estate between Lee ○-woo and Defendant Kim ○-ju constituted a fraudulent act, the Plaintiff is seeking the cancellation of the provisional registration of the right to claim share transfer and the cancellation of the sales contract and the registration of share transfer under the name of Defendant Kim Jong-○, which are completed on the said real estate.

(2) As to this, Defendant Kim ○ asserts that the share of 1/2 of the instant 2 real estate was properly purchased from Lee Jong-woo, and that he did not know that he would prejudice the creditors of Lee Jong-woo, including Won, at that time.

B. Determination

According to the evidence evidence Nos. 11 and 12, Defendant Kim Jong-soo purchased 1/2 shares in this case’s second real estate from Lee Jong-woo on October 12, 2002, and paid 35,000,000 won for the purchase price on behalf of the creditor Lee Jong-woo. The fact that between October 14, 2002 and October 15, 2002, sent 35,000,000 won to the deposit account in the name of Lee Jong-woo-woo-dong's wife's name. As such, unlike the entry in the grounds for registration on the register, the sale contract for 1/2 shares in this case’s second real estate was concluded on October 12, 202, and the sale price was paid by subrogation for the debt to Lee Jong-woo-woo-woo-woo-ok, and the Plaintiff’s claim against the beneficiary was not based on the sequence 38,000,00,000 won for the principal tax claim as of this case’s.

4. Determination on the claim against Defendant Lee Ki-il

A. Determination as to the establishment of fraudulent act

According to the facts found above, this case's tax liability of KRW 174,097,080 against the plaintiff, as well as the tax liability of KRW 236,518,295 against Kim Jong-soo, concluded a sales contract on the third real estate of this case, which is the only real estate owned by the defendant Lee Jong-soo, and completed the registration of ownership transfer with the defendant Lee Jong-soo, barring any other special circumstances, this act constitutes a fraudulent act against the plaintiff, who is the creditor, and this act constitutes a fraudulent act against the plaintiff at the time of the sales contract. Thus, it is presumed that this act was known that the defendant Lee Jong-soo was harmful to the plaintiff at the time of the sales contract. Thus, the sales contract concluded on October 17, 2005 with regard to the third real estate of this case, which was concluded on October 17, 2005, should be revoked as a fraudulent act.

B. Defendant Lee Jae-il’s assertion

The defendant Lee Ki-soo asserts that the third real estate of this case is the property inherited by Lee Jong-woo, the original type of Lee Jong-soo, the ownership transfer registration of this case, and only the title of this ownership transfer registration was entrusted to Lee Lee Lee-soo, and the registration of ownership transfer was completed in the name of Lee Lee-soo to recover this, so the sales contract for the third real estate of this case between Lee Lee Lee-woo and Lee Lee Lee-soo does not constitute a fraudulent act.

(2) Determination

On the other hand, the testimony of Kim Jong-soo, which corresponds to the fact that the third real estate of this case was title trust to Lee Jong-soo, is difficult to believe it is as it is, and there is no other evidence to acknowledge it. Rather, considering the overall purport of the pleadings as to Gap evidence 2-3, Gap evidence 3-2, Eul evidence 17-1, and 2-2, Lee Jong-soo, who borrowed 50,000,000 won from ○○ bank on November 26, 1997, the third real estate of this case was established as a collateral on the third real estate of this case, and there is no reason to acknowledge that the right of collateral was established as a collateral on the third real estate of this case, in light of the fact that the right of collateral security was established under the name of the title trustee, and that the right of collateral security was established on November 28, 1997 for the purpose of establishing the right of collateral security on the third real estate of this case, and that the right of collateral security was established under the title trustee's right of this case.

(c) Method and scope of restitution;

(1) According to the records, Gap 2-3, Eul 3-3, and Eul 17-1-1 of evidence No. 17-1, the above real estate had been registered as a ○○ Bank Co., Ltd., the maximum debt amount of 60,000 won, the maximum debt amount of 30,000 won, the maximum debt amount of 30,000 won, and the registration of the establishment of a political party with respect to the above real estate was completed respectively. This ○○ was revoked on December 15, 2005, the above sales contract was revoked on December 15, 2005, and KRW 450,00,00 won were repaid to ○○○○ on December 21, 2005, and KRW 33,908,618,618, and was revoked on December 21, 2005, the amount of 205, which was 305,005,00 won of the mortgage establishment registration was revoked on the real property under the title of 25, 294.

(2) Therefore, the sales contract concluded on October 17, 2005 with respect to the third real estate of this case between Lee Jong-woo and Lee Jong-soo shall be revoked within the limit of KRW 24,557,087, and the restoration of the original state to the original state shall be revoked within the limit of KRW 24,557,087, and the original state shall be restored to the original state to the Plaintiff. As a result, the original state shall be restored to the original state, the defendant Lee Jong-soo shall pay to the Plaintiff delay damages at the rate of KRW 24,557,087 and the rate of KRW 5% per annum as stipulated in the Civil Act from the day

5. Conclusion

If so, the plaintiff's claim against the defendant Lee Jong-woo and Lee Lee-soo is accepted within the scope of the above recognition, and the claim against the defendant Kim Jong-ju and the remaining claim against the defendant Lee Lee Lee-soo are dismissed as it is without merit.