Seoul Central District Court 2006Kadan253166 ( October 12, 2008)

Tax claims are preserved claims of obligee's right of revocation, and it is insufficient to recognize that the defendant company was a bona fide beneficiary at the time of sales contract.

Since the real estate cannot be deemed to have lost its status as the owner even if it provided the real estate or made a provisional registration, it is highly probable that the real estate is still responsible for property, and that the tax claim should be established in the near future, and the tax claim can be a preserved claim, and it is insufficient to recognize that the defendant company was a bona fide beneficiary at the time of the sales contract.

Article 30 of the National Tax Collection Act

208Na10401 Revocation, etc. of Fraudulent Act

Korea

XX Co., Ltd

Seoul Central District Court Decision 2006Gadan253166 Decided February 12, 2008

September 4, 2008

October 30, 2008

1. The defendant's appeal is dismissed.

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

1. Purport of claim

A sales contract concluded on August 30, 2004 and June 3, 2004 with respect to each real estate in the separate sheet No. 1 between the defendant and EA (resident registration number******************) is canceled in all of the sales contracts concluded on June 3, 2004 with respect to each real estate in the separate sheet No. 1 in the separate sheet No. 10640, receipt No. 10640, and No. 2 and 3 in the separate sheet with respect to each real estate in the separate sheet No. 3 of Sep. 3, 2004, the defendant will implement each procedure for the cancellation registration of each transfer of ownership completed on September 10, 2004 as a registry office of the Daegu District Court of Korea (Seoul District Court).

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked. The plaintiff's claim against the defendant shall be dismissed in entirety.

1. Basic facts

A. ThisA (resident registration number:*************) was in service as the representative director of the OO (hereinafter referred to as "OO") from June 21, 2002 to July 24, 2003, from September 19, 2002 to June 1, 2004, while ○○ Co., Ltd. (hereinafter referred to as the "OO") was a separate company, and was in service as the representative director of the OO (hereinafter referred to as the "OO") from June 1, 2004.

B. From November 4, 2004 to November 17, 2004, the head of Sungnam District Tax Office under the Plaintiff-affiliated Tax Office revealed that: (a) as a result of the fixed price investigation of corporate tax against XX, the company was under an obscure outflow from the company XX, such as bad debt, etc.; (b) on June 26, 2003, the company's representative director at the time notified this company's disposal and change in the amount of income; (c) on June 1, 2005, the company issued a tax disposition of KRW 260,501,610 as global income tax for the year 2003 and as of November 1, 2005, the pertinent tax amount in arrears reaches KRW 286,030,760 as of November 1, 2005.

(C) On the other hand, thisA borrowed KRW 420 million from O on October 17, 2002, which was performed by it as the representative director, on November 18, 2002, and agreed that each of the real estates listed in the separate list of O (hereinafter collectively referred to as "each of the real estates in this case" with O on December 1, 2002; KRW 300,000,000,000,000,000, KRW 40,000,000,000, and KRW 30,000,000,000, and KRW 20,000,000, and KRW 30,000,00,00,000, KRW 40,000,00,000,000, KRW 36,07,06,00,00,067,067, respectively, was changed to 60,06,

[Ground for recognition: Facts without dispute; evidence Nos. 1-2, 3, 2, and 36-1, 2, 3, 10-18, 31-3, evidence No. 1-11, 5, and 7-4; evidence Nos. 1-6, 11, 12, 14, 19; evidence Nos. 10, 16-2, and 1, 2 of evidence Nos. 10, 16-2; and purport of the whole pleadings]

2. The assertion and judgment

A. Summary of the parties' assertion

The plaintiff asserts that the sales contract of this case constitutes a fraudulent act against the plaintiff who is a tax claim holder, and filed a claim against the defendant company for the cancellation of each registration of this case with the cancellation of each of the sales contract of this case and restitution to its original state, the defendant company provided the real estate of this case to O on December 15, 2003, and made provisional registration for the 2 and 3 real estate in the OO on December 15, 2003, it has already disposed of each of the real estate of this case and lost its right at least on December 15, 2003, and the company succeeded to the right of each of the real estate of this case from OO, and thus, it was merely impossible for the plaintiff company to assert the right to each of the real estate of this case, and thus, the plaintiff's right to revocation cannot be asserted in the process of the plaintiff's right to revocation without the plaintiff's right to revocation.

B. Determination

(1) Therefore, even though this case’s real estate was offered to O as security before this case’s sales contract was concluded, or each provisional registration was made on 1), 2, and 3 real estate before this case’s sales contract was concluded, it cannot be said that it lost its status as owner of each of the instant real estate since it reached around December 15, 2003, the time when the above provisional registration was made. Thus, even before this case’s sales contract was concluded between thisA and the Defendant, each of the instant real estate still belongs to the obligees as joint collateral in relation to the obligees. Furthermore, even before this case’s sales contract was concluded between this case’s company and this case’s real property, it is probable that this case’s real property was disposed of unfairly as loan to this case’s real property to this case’s 30th executive director on June 26, 2003 through the tax investigation into XX, and that the taxation claim of this case’s tax claim of this case was already established for 200 years prior to this case’s acquisition of global income tax claim of this case’s 2036.

(2) Meanwhile, in the instant case where there is no dispute between the parties as to the fact that this case’s property of this case’s company was insufficient at the time of the conclusion of each of the instant sales contract between this case’s company and this defendant’s company, and this case’s property was provided as substitute payment to the defendant company, which is a specific obligee through each of the instant sales contract, and the registration of this case’s property was completed, the parties concerned shall consider that each of the instant sales contract is satisfied with priority over other creditors, while the other creditors are at a disadvantage than the previous one as the joint security has been reduced within the scope of the scope, each of the instant sales contract’s interests should be deemed to be prejudicial to the other creditors’ interests. In light of the fact that this case’s property was reduced by the debtor’s act of disposal of the property, and that this case’s property was not sufficient to satisfy the creditors’ entire claims at the time of the conclusion of each of the sales contract, and that it was not sufficient to acknowledge that the representative director of this case’s company and this case’s 2, which had been acting in good faith, the following evidence.

3. Conclusion

Therefore, the plaintiff's claim against the defendant shall be accepted in its entirety on the grounds of its reasoning, and since the part against the defendant in the judgment of the court of first instance is just in its conclusion, the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.