In case of fraudulent act, bad faith is presumed, but if the sales contract had not been known as fraudulent act, good faith defense is recognized.

Although the real estate sales contract of the defaulted taxpayer constitutes a fraudulent act, the bona fide defense is recognized if the defaulted taxpayer was unaware of the fraudulent act at the time of conclusion of the sales contract.

2013 Gohap 101534 Revocation of fraudulent act

Korea

AA Construction Corporation

June 20, 2014

July 11, 2014

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The sales contract concluded on July 14, 201 with respect to each real estate listed in the separate sheet between the defendant and the non-party B shall be revoked within the limit of OOB. The defendant shall pay to the plaintiff OO and the amount calculated at the rate of 5% per annum from the day following the day this judgment becomes final and conclusive to the day of complete payment.

1. Basic facts

A. The genderB sold each real estate owned by itself on May 16, 2007, August 11, 2009, and August 23, 2011. The director of the Daejeon District Tax Office, the Plaintiff-affiliated, imposed capital gains tax and comprehensive real estate tax on sexualB as follows with respect to each sale and possession of real estate, and on November 29, 201, due to the failure of genderB to pay the same, the total amount of the capital gains tax, comprehensive real estate tax, and additional tax in arrears as of November 29, 201, reaches the OOE.

No.

Items of Taxation

Reversion Year

Date of Disposition of Imposition

Deadline for payment

Notice Amount (won)

Amount in arrears ( won)

1

Transfer Income Tax

2007

September 10, 2007

September 30, 2007

OOO

OOO

2

Transfer Income Tax

209

January 10, 2012

3, 2012

OOO

OOO

3

Transfer Income Tax

2011

o. 1, 2012

May 1, 2012

OOO

OOO

4

Comprehensive Real Estate Tax

2011

November 16, 201

December 15, 201

OOO

OOO

Total

OOO

B. On April 15, 2002, SungB purchased each real estate listed in the separate sheet from KimCC (hereinafter referred to as the “instant real estate”), and completed the registration of ownership transfer by lending it under the name of KimD, one of its own slide KimD. After that, on August 28, 2008, SungB entered into a lawsuit for cancellation of the registration of ownership transfer against KimCC and KimD and the court on August 28, 2008 with regard to the registration of cancellation of the above transfer of ownership, and the KimCC was decided to enforce the procedure for cancellation of the registration of ownership transfer on April 15, 201, and the above decision was finalized at that time. (c) The SungB entered into the sales contract with the Defendant on each real estate listed in the separate sheet (hereinafter referred to as the “instant real estate”) according to the above compulsory adjustment decision, and entered the registration of ownership transfer into the sales contract with respect to the Defendant on the same date as the sale and purchase price of the instant real estate (hereinafter referred to as “the instant real estate”).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, 9, Eul evidence 3 and 4, the purport of the whole pleadings

2. Determination as to the occurrence of the right to revoke the fraudulent act among the grounds for the claim

A. Whether there is a preserved claim

According to the above facts, the transfer income tax and its additional charges following the sale of each real estate on May 16, 2007, August 11, 2009, and the real estate holding tax and its additional charges on sexualB on August 201, 201 following the ownership of each real estate held by sexualB were already established at the time of the conclusion of the instant sales contract, and there was a high probability that the legal relationship which forms the basis of the claim has already occurred, and that the transfer income tax and the comprehensive real estate holding tax have been created in the near future thereafter, and the possibility of the Plaintiff was actually established by the disposition of imposition of taxes on November 16, 201 (see, e.g., Supreme Court Decision 95Da27905, Nov. 28, 195). This becomes the preserved claim in the instant fraudulent act lawsuit (see, e.g., Supreme Court Decision 95Da27905, Nov. 28, 1995).

Furthermore, the Plaintiff asserts that the transfer income tax and its additional charges equivalent to the transfer income tax and its additional charges arising from the sale of real estate by SungB on August 23, 201 are also preserved claims of this case. However, as seen earlier, the sales contract of this case was held on July 14, 201, as seen earlier, since the said transfer income tax and its additional charges have no legal relationship that forms the basis of the claim at the time of the conclusion of the sales contract of this case alleged as fraudulent act, it cannot be deemed as preserved claims of this case, since it is apparent that the said transfer income tax and its additional charges have no legal relationship as the basis of the claim at the time of conclusion of the sales contract of this case. Therefore, this part of the Plaintiff’s assertion is

B. Whether the establishment of fraudulent act and the presumption of intent to commit suicide are presumed

1) Around April 15, 2002, genderB purchased the instant real estate from KimCC and completed the registration of ownership transfer with only its title KimD as seen earlier. As such, this constitutes a so-called middle omission registration type title trust, and the real estate still remains as owned by KimCC.

However, as seen earlier, it is also reasonable to deem that the real estate of this case was actually owned by SungB from the time when the compulsory adjustment decision became final and conclusive, in consideration of the fact that Y, who had a provisional registration security right to the real estate of this case, had a final and conclusive judgment but did not immediately complete the registration of transfer of ownership and did not express any intention to own the real estate of this case on the condition of the Defendant’s assumption of obligation.

Therefore, the real estate of this case is the debtor's responsible property in the revocation lawsuit of this case.

2) Meanwhile, according to the above facts, since the SungB, which was in excess of the debt, disposed of the instant real estate which was provided as joint collateral by the general creditors by concluding the instant sales contract, it shall be deemed that the SungB caused the shortage of joint collateral through the instant sales contract. Furthermore, as long as the SungB knew of the existence of other debt, such as being subject to the tax imposition disposition, and continuously disposed of the real estate owned by it, it is reasonable to deem the instant sales contract to have been concluded according to the intention of the SungB’s sexual intent.

3) Therefore, the instant sales contract becomes a fraudulent act against the Plaintiff, who is the creditor of sexualB, and as a result, the Defendant, who is the beneficiary, is presumed to be the beneficiary.

C. Sub-committee

Therefore, the instant sales contract, barring any special circumstance, should be revoked by being recognized as fraudulent act within the scope of some tax claims held by the Plaintiff against the Defendant (OOOE = OOOE - OOOOE).

3. Determination as to the defendant's bona fide defense

A. Summary of the defense

At the time of concluding the instant sales contract, the Defendant was unaware of the fact that it was a fraudulent act by the seller’s intent to injure sexualB.

(b) Fact of recognition;

The following facts are either in dispute between the parties, or there is no other counter-written evidence as to Gap's 5 to 7, Eul's 1 to 5, and some of Gap's 11, and the purport of Gap's 11, and contrary to Gap's 11, there is no counter-written evidence.

"1) Following the change of name as of July 19, 202 to HH construction industry as of August 12, 2008 upon request of GG Construction Co., Ltd. (the name of the defendant was changed to that of the HH construction industry. On June 29, 201, the change was made again into that of the current name as of June 29, 201; hereinafter referred to as "contest defendant for convenience") was approved on May 10, 199 as an apartment construction project where one apartment unit is constructed in the first unit of the land from ASEAN market." As of May 10, 199, this II (the name before the name of the defendant was changed to that of this case) as of October 28, 1996, which was the defendant representative director, as of the above 20th sale of the real estate as of the date of the above 205th sale of the real estate and the 205th sale of the real estate as of the 205th sale of the real estate (the above 205th sale of the real estate).

4) Meanwhile, KimN acquired 2/3 shares of the ownership of the remainder of the instant real estate on October 12, 2002, and 1/3 shares on December 4, 2002, thereby owning all the remainder of the instant real estate.

"5) At the time of the first fourth month, E lent 40% interest to KimD and KimN, 20% a month thereafter, and OE was due on November 8, 2005. KimD and Kim NN decided on June 9, 2005 that the provisional registration of the right to claim transfer of ownership on the instant real estate and the remainder of the real estate was completed (hereinafter referred to as the "provisional registration of this case"), 6) KimD and Kim NN's claim for the provisional registration of this case, 200, 70, 200, 200, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 20, 60, 6, 20, 6, 6, 6, 60.

8) Meanwhile, on June 29, 2011, this Section took office as the Defendant’s director and the representative director, and the Defendant intended to continue the said apartment construction project, which was interrupted due to the financial difficulties. On August 17, 2011, this Section drafted a sales contract for the following real estate (No. 3) with the leE, a person holding the provisional registration of the instant real estate, and the real estate sales contract (No. 3) with the following contents.

○ Indication of Real Estate: Real Estate in this case and other Real Estate

○ Sales Amount: OOOO(OOO which is borne by GlaD and KimN for leE)

○ non-high speed

- If the Defendant pays OE by January 14, 2013, the leapE will cancel the provisional registration.

- All documents necessary for the transfer of ownership, such as a certificate of seal imprint, shall be submitted to E 15 days before the effective period.

○ The seller, the buyer and the buyer leE

9) Accordingly, with respect to the instant real estate on August 24, 2011, the instant provisional registration in the name of MaE was cancelled, and the sexB and the registration of ownership transfer in the name of the Defendant was completed successively, and the provisional registration of the right to claim ownership transfer in the name of MaE was completed again.

10) As stated in the above sales contract, the Defendant issued a certificate of the personal seal impression of the purchaser, for the sale of real estate as of November 9, 201; for the sale of real estate as of May 20, 201; for the sale of real estate; for the sale of real estate as of February 8, 2012; for May 20, 2012; for the sale of May 25, 2012; for the sale of July 25, 2012; for the first time, October 23, 2012; for the first time, January 15, 2013; for the first time, April 11, 2013; for the first time:

11) The instant real estate is in a state where a structure for apartment construction is installed as of the date of closing argument in the instant case.

C. Determination

In full view of the above facts and the above facts, ① a title truster of the real estate of this case who had ownership as a title truster of this case is sexualB, and thereafter, a person arranging the registration relationship of the real estate of this case is sexualB. Thus, the actual debtor of the defendant's KimD and KimN's debt OOE against the defendant's debt son is considered sexualB and KimN, ② although E is given a title title to receive the registration of ownership transfer of this case's real estate prior to sexualBB, the provisional registration of this case was cancelled without implementing the principal registration procedure of ownership transfer based on the provisional registration of this case, ③ immediately after the provisional registration of this case was cancelled, the ownership transfer registration of this case was completed in sequence, and EE was established again with the provisional registration of this case's real estate of this case, ④ It is not necessary for the defendant to acquire the ownership of this case's real estate again from the execution of the provisional registration of this case's real estate of this case's real estate of this case.

In light of the above circumstances, the Defendant: (a) decided to locate the previous apartment site and the remaining real estate for the above apartment construction project; and (b) decided to obtain the provisional registration of this case on the instant real estate from the SungB and MaE; (c) considering the fact that the provisional registration of this case was established on the instant real estate in order to secure the claim held by MaE according to the money loan relationship between MaB and MaE; and (d) the establishment of the provisional registration of this case on the instant real estate in order to prevent business failure in accordance with the provisional registration of this case after acquiring the instant real estate; (b) promised to accept and pay the obligation owed to MaE (as seen above, the real owner of the instant real estate at that time is SungB; (c) Ma is a creditor of such SungB; (d) it is anticipated that MaB had a provisional registration security right on the instant real estate; and (e) it is difficult for the Defendant to conclude the sales contract of this case, which is a real owner of the instant real estate, without being aware of the ownership of the instant real right to purchase of the instant real estate.

Therefore, the defendant's defense is well-grounded, and the plaintiff's argument about the cause of the claim is no longer sustainable.

4. Conclusion

Then, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.