Daegu District Court 2014Gahap20299 ( November 20, 2014)

Whether the Defendant’s donation of money to the delinquent taxpayer constitutes a fraudulent act

The delinquent taxpayer remitted cash to the account under the name of the defendant, but it is confirmed that the account under the name of the defendant was actually used by the delinquent taxpayer, which cannot be viewed as a fraudulent act.

Article 406 of the Civil Code, Right of Revocation

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

2014Na23455 Revocation of Fraudulent Act

Korea

AA

Daegu District Court Decision 2014Gahap20299 Decided November 20, 2014

April 22, 2015

May 13, 2015

1.The judgment of the first instance shall be modified as follows:

A. Of the instant lawsuit, the part of the claim for restitution, which is based on the cancellation of a deposit-based title trust agreement and the cancellation of a deposit-based title trust agreement, shall be dismissed.

B. The plaintiff's claim for restitution on the ground of cancellation of a gift contract and cancellation of a gift contract is all dismissed.

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

The judgment of the first instance shall be revoked. The judgment of April 13, 2012 entered into between the defendant and BB (the date of May 16, 1946)

The contract of donation of KRW 20,000,000 or the contract of title trust of deposit holders shall be revoked. The defendant shall revoke to the plaintiff.

20,00,000 won and the rate of 5% per annum from April 13, 2012 to the date of full payment.

D. The payment of money is made.

1. Basic facts

A. On June 7, 2010, the Plaintiff notified BB of the Defendant’s husband to pay under-reported capital gains tax, etc. on the transfer value of unlisted stocks (OO), and notified that global income tax and value-added tax should be paid on July 5, 2010. However, even though the Plaintiff notified that global income tax and value-added tax should be paid on July 5, 2010, up to now 424,158,290 among them

B. BB as a joint representative of LL (hereinafter referred to as “LL”) and owned a claim of KRW 2070 million with respect to LL. However, on June 15, 2012, the Defendant from the above medical corporation on April 13, 2012, when the first building owned by LL was sold to the OOO-O-O-O to a medical corporation, and was paid KRW 140 million out of the purchase price.

JB bank account under the name (number: 603-O-O-O-O, hereinafter referred to as "the account in this case"). On June 8, 201, the balance was deposited in the first place and on May 21, 2012, the said money was deposited directly (Evidence A 12).

C. Of KRW 140 million deposited in the instant account, KRW 120 million was withdrawn as a check on April 18, 2012 and April 30, 2012, and used in BB’s payment of the said capital gains tax; KRW 17 million was remitted to DD around April 16, 2012; and the remaining KRW 3 million was remitted to EE during the period from April 16, 2012 to April 19, 2012.

D. Meanwhile, at the time of receipt of the above sales amount, BB had no particular asset except KRW 379,056 in its name at the time of receipt of the sales amount (BB’s remaining loan claims against LL).

[Ground of recognition] Facts without dispute, Gap evidence 1 to 13 (including each number; hereinafter the same shall apply), Eul evidence 1 to 9, the purport of the whole pleadings

2. Claim for the cancellation of a donation contract and reinstatement;

A. The parties' assertion

1) Plaintiff BB deposited the above KRW 140 million in the account in the name of the Defendant, the wife, in excess of its obligation, and among them, the remainder of KRW 20 million, excluding the portion used to pay the above capital gains tax, shall be donated to the Defendant. Therefore, this shall be revoked as a fraudulent act. The restitution shall be returned to the Plaintiff by means of compensation for equivalent value.

2) The Defendant merely lent the name of the instant account to BB and did not receive or use the money from the instant account. As such, the Defendant did not receive or receive the said KRW 20 million, and was not a beneficiary of the said fraudulent act.

B. Determination

1) Relevant legal principles

In the event of a transfer of money to another person’s deposit account, the remittance may be made based on various legal causes. The mere fact that a person in a certain personal relationship consented or understood to transfer money to his/her own deposit account, or that he/she actually allows such a person to control his/her own deposit account, barring any other circumstances, it cannot be readily concluded that there was an agreement between the remitter and the account holder that he/she would have objectively reverted the remittance amount to the account holder without compensation (see, e.g., Supreme Court Decision 2012Da30861, Jul. 26, 2012).

2) Whether a donation contract is concluded

BB deposited the above KRW 140 million into the account in the name of the Defendant in the course of receiving a partial payment of the loan claim against LL. However, in light of the above admitted evidence, it is insufficient to recognize that the above acknowledged facts and the entries of Gap Nos. 1 and 13 are sufficient to recognize that "B and the defendant have reached an agreement between BB and the defendant that they will ultimately vest the above amount or KRW 20 million in the above amount in the defendant," and there is no other evidence to support this otherwise, the plaintiff's assertion on the above donation contract is without merit.

① From October 1, 2009 to September 6, 2010, BB acquired management rights of GGG Co., Ltd. (hereinafter referred to as “GGG”), the representative director of GG from December 1, 2009 to September 6, 2010, and from September 7, 2010 to the EE, from September 7, 2010, BG operated the GG as the actual owner (the Defendant, the wife of BB, was appointed as the representative director of the GG).

② The instant account was opened on June 8, 201 and all balance was withdrawn on May 21, 2012. The details of the instant account are mostly related to the operation of GG or the payment of the said transfer income tax by BB (the same applies to the details of another J bank account (number: 603-O-01) in the Defendant’s name).

③ Of KRW 140 million deposited in the instant account, KRW 120 million was used for the payment of the said transfer income tax by BB, and KRW 17 million was remitted to DD, a party involved in the sale and purchase of used buses purchased by GG, and the remaining KRW 3 million was remitted to EE, the representative director of GG. Ultimately, the Defendant did not consume out of the said KRW 140 million.

3) Sub-determination

Therefore, the plaintiff's assertion that the plaintiff's contract of donation and the contract of donation are revoked is without merit.

3. Demanding cancellation of a title trust agreement with deposit holders and reinstatement;

A. The plaintiff's assertion

BB deposited the above KRW 140 million in the account in the name of the Defendant, the wife, in excess of the debt, to the account in the name of the Defendant. Among them, the remaining KRW 20 million, excluding the portion used for the payment of the above capital gains tax, was lent to the Defendant and trusted to the Defendant. As such, it should be revoked as a fraudulent act, and the restitution should be returned to the Plaintiff by the method of compensation for value.

B. Determination

In cases where a deposit contract is concluded through a real name verification procedure under the Act on Real Name Financial Transactions and Confidentiality and the fact of the real name verification is clearly stated in the deposit contract statement, etc., it would normally be reasonable to interpret that the deposit title holder, the actor, and the intent of a financial institution acting for him/her as the deposit owner in the deposit contract is to be the party to the deposit contract (see Supreme Court Decision 2008Da45828, Mar. 19, 2009). The fact that the Defendant lent the name of the instant account to BB is not a dispute between the parties, and thus, it is recognized that the Defendant entered into the deposit title trust contract with BB and opened the instant account and deposited the said KRW 140 million in the deposit account.

In this case, the nominal holder of a title trust agreement between the contributor and the deposit holder shall be deemed to have a duty to transfer his/her claim for return of deposits to a financial institution to the contributor upon the request of the contributor. Therefore, the contributor may, while cancelling the title trust, request the transfer of deposit claims against the financial institution to the nominal holder and also request the notification of transfer to the financial institution (see, e.g., Supreme Court Decision 2000Da49091, Jan. 5, 2001)

However, in a case where a creditor filed a lawsuit against a beneficiary seeking cancellation or restitution of a fraudulent act on the ground of a debtor's fraudulent act, and the said fraudulent act has been rescinded or terminated during the lawsuit, and the creditor has returned to the debtor by punishing the property for which return was sought by the revocation of such fraudulent act, barring special circumstances, the creditor's revocation lawsuit has already been executed and no longer the benefit of the protection of rights exists by such lawsuit. This does not change because the return of real estate, which is the object property, was made in the form of the registration of transfer of ownership, rather than in the form of cancellation of the registration of transfer (see Supreme Court Decision 2007Da85157, Mar. 27, 2008).

BB used not only the aforementioned KRW 140 million deposited into the instant account for the payment of its capital gains tax, but also the fact that on May 21, 2012, the account was fully withdrawn on May 21, 2012.

On the other hand, even if the above contract is revoked, the defendant did not withdraw the deposit of this case, and did not have the current claim to return the deposit, while the debtor Park Jae-hwan was already refunded all the deposit from the defendant due to the withdrawal of deposit, so the obligation to return the deposit in duplicate does not arise to the defendant. As such, the plaintiff does not have the interest to seek the cancellation of the deposit under the title trust contract and the restoration of the original state as a lawsuit. Therefore, the part seeking the cancellation of the title trust contract and the restoration of the original state among the lawsuit of this case is unlawful.

4. Conclusion

Therefore, the part of the claim for cancellation of the title trust contract and restoration to the original state among the lawsuits in this case is unlawful, and it is dismissed as there is no part of the claim for cancellation of the gift contract and the claim for restoration to the original state among the claims in this case. Since the judgment of the court of first instance is unfair as it is in part of the plaintiff's appeal and it is so decided as per Disposition.