Seoul High Court 201Na29866 ( August 23, 2011)

In the near future, there is high probability that the tax liability should be established by such legal relations in the near future.

The additional tax due to the failure to report and pay due to the transfer income tax to be paid by transferring the real estate of this case before the gift of this case, which is the debtor, had already been established at the time of donation, and there was a high probability that the tax liability should be established in the near future by such legal relations, and its probability has been realized. Thus, it constitutes fraudulent act.

Article 30 of the National Tax Collection Act

2011Da82360 Revocation, etc. of Fraudulent Act

Korea

KoreaA

Seoul High Court Decision 2011Na29866 Decided August 23, 2011

February 23, 2012

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the debtor's insolvency requirement

In determining the debtor's insolvency, which is the requirement to exercise the creditor's right of revocation, it is necessary to establish a legal relationship which is the basis of establishing an obligation at the time of the fraudulent act. However, it is probable that the legal relationship, which is the basis of establishing an obligation, has already been established at the time of the fraudulent act, and the obligation is established in the near future. In fact, where the possibility is realized in the near future, the obligation should be included in the debtor's small property (see, e.g., Supreme Court Decisions 2000Da30639, Sept. 26, 200; 2010Da68084, Jan. 13, 201). Such legal principle is not acceptable in light of the above legal principle as to the obligor's insolvency, such as notification, tax payment, etc., which was based on the individual tax law, and thus, it can be seen that the court below's determination of whether the obligor's tax liability was established at the time of the return and payment of the real property in question.

2. As to the establishment of a fraudulent act

The "legal act detrimental to creditor" means a juristic act that causes a decrease in debtor's assets due to the act of disposing of debtor's assets, which makes it impossible to fully satisfy the creditor's claims, because of a decrease in the debtor's assets or a lack of joint security in this end, such fraudulent act can be established not only where the debtor has already been in excess of his obligations prior to the disposal of assets, but also where the debtor has been in excess of his obligations due to the act in question, such as a transfer of money, etc. (see, e.g., Supreme Court Decision 2005Da6808, Apr. 29, 2005). Examining the reasoning of the judgment below in light of the above legal principles and records, the court below is justifiable to have determined that the gift act in this case constitutes a fraudulent act as long as both BB, which is the debtor, was in excess of his obligations prior to the transfer of the gift act in this case, even though it was not in excess of the debtor's debts. Therefore, the court below did not err in the misapprehension of legal principles as to establish the elements for a fraudulent act.

3. As to the existence of an intention to commit suicide

The debtor's intentional intent, which is a subjective element of a fraudulent act, refers to recognizing that the common security of claims is insufficient, and it does not require any intent or intent to impair creditors. In the event that a debtor's act of donation lacks debt due to inclusion of the donated debt in a small property, the debtor's intent at the time of the act of donation is presumed (see, e.g., Supreme Court Decisions 9Da2515, Apr. 9, 199; 200Da41875, Apr. 24, 2001; 2000Da41875, Apr. 14, 2006; 2006Da5710, Apr. 14, 2006; 2004Da61280, Jul. 4, 2006). The court below's judgment below is justified in the misapprehension of legal principles as to the presumption of the debtor's intent to commit a fraudulent act, as alleged in the ground of appeal.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is decided by all participating Justices.

It is decided as per Disposition by the assent of all participating Justices.