Korea

Defendant 1 and one other (Law Firm Newcheon, Attorney Kim Jong-hwan, Counsel for the defendant-appellant)

September 6, 2017

Gwangju District Court Decision 2015Gahap58091 Decided November 3, 2016

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked.

In the first place, the contract for donation of KRW 701,325,406, which was concluded on August 30, 2010 between Defendant 1 and Nonparty 1 is revoked. Defendant 1 shall pay to the Plaintiff 701,325,406 and interest calculated at the rate of KRW 5% per annum from the day following the day on which the judgment became final and conclusive to the day of full payment. (2) The contract for donation of KRW 100,000,000, which was concluded on August 30, 2010 between Defendant 2 and Nonparty 1 is revoked. Defendant 2 shall pay to the Plaintiff 10,000,000 and the amount calculated at the rate of KRW 5% per annum from the day following the day on which this judgment becomes final and conclusive to the day of full payment.

Preliminary, Defendant 1 and Nonparty 1 cancel the deposit share title trust agreement concluded between Defendant 1 and Nonparty 1 on August 30, 2010 within the scope of KRW 701,325,406 with respect to the deposit share trust agreement concluded between the National Bank of Korea [Account Number: omitted 2] on August 30, 2010. Defendant 1 shall pay to the Plaintiff the amount calculated at the rate of KRW 5% per annum from the day following the day when the judgment became final and conclusive to the day when the full payment is complete. (2) Defendant 2 and Nonparty 1’s account (Account Number: omitted 3) with respect to the deposit share trust agreement concluded on August 30, 2010 within the scope of KRW 100,000,000 and KRW 5% per annum from the day following this judgment becomes final and conclusive to the day when the full payment is made. Defendant 2 shall cancel the amount to the Plaintiff with interest of KRW 100,325,400 per annum.

[The plaintiff's conjunctively sought revocation of the fraudulent act on the ground of the deposit shareholder title trust agreement, but the subject matter of the lawsuit is the cancellation of the debtor's act of reducing the property and the claim for restitution to its original state in the lawsuit for revocation of the fraudulent act, and in relation to the legal assessment of the act of reducing the property, the assertion that the gift or the title trust agreement of the deposit owner is different from the assertion on the method of attack and defense that the right to revoke the fraudulent act is justified, and it cannot be deemed that the claim itself differs (see Supreme Court Decision 2004Da10985, 10992, Mar. 25, 2005).

1. Basic facts

A. Plaintiff’s taxation claim establishment

1) On March 26, 2010, Nonparty 1 received KRW 400,000,00 from Nonparty 2, the amount of KRW 1,699 square meters in Namyang-si, Gyeonggi-do and sold KRW 1,260,00,000 in purchase price, and Nonparty 1 received KRW 400,000,000 on March 26, 2010, and KRW 340,000,000 on May 25, 2010, and received KRW 340,00,000 in purchase price as a check issued on June 25, 2010, and completed the registration of ownership transfer with respect to the said land to Nonparty 2, Sept. 17, 2010.

2) Non-party 1 did not file a report on capital gains tax on the transfer of the above land. Accordingly, on April 1, 2015, the director of the tax office having jurisdiction over the Plaintiff notified Non-party 1 of the payment of capital gains tax (hereinafter “instant capital gains tax”) by April 30, 2015, but Non-party 1 did not pay it by the date of closing argument at the trial. As of October 4, 2016, Non-party 1’s arrears in capital gains tax amounting to KRW 794,839,090 is KRW 794,839,090.

B. Relationship and monetary payment with Nonparty 1

1) Defendant 1 is the spouse of Nonparty 1, and Defendant 2 is the children of Nonparty 1.

2) As above, Nonparty 1 deposited the purchase price received in the agricultural bank account or check in two accounts in his name, and transferred KRW 800,000,000 out of the above deposit amount to another national bank account in his name (Account Number: omitted).

3) On August 30, 2010, Nonparty 1 deposited KRW 701,325,406 out of the cancellation money of KRW 801,325,406 in the National Bank account (Account Number: omitted; hereinafter “Defendant 1 account”) with Defendant 1’s national bank account in the name of Defendant 1 (Account Number: omitted 2; hereinafter “Account Number”) and KRW 100,000,000 in the National Bank account (Account Number: 3; hereinafter “Defendant 2 account”) with Defendant 2’s national bank account in the name of Defendant 2 (hereinafter “each of the instant accounts”). In addition, Nonparty 1 deposited KRW 701,325,406 into each of the instant accounts (hereinafter “each of the instant accounts”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, 10, 11, 14, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Determination as to preserved claims

The reasons why this court shall state this part of the judgment are as stated in the corresponding part of the judgment of the first instance, except where "678,898,240 won" in Part 6 of the judgment of the first instance is "794,839,090 won" in Part 18 of the judgment of the second instance. Thus, it is accepted in accordance with the main sentence of Article 420 of the Civil Procedure Act

3. Determination on the establishment of fraudulent act

A. Judgment on the main argument

1) The parties' assertion

The plaintiff asserts that the non-party 1’s deposit of KRW 701,325,406 to Defendant 1’s account in excess of debt, and the deposit of KRW 100,000 to Defendant 2’s account is a donation of each of the above money to the defendants, which constitutes a fraudulent act, each of the above gift agreements should be revoked, and the defendants should pay each of the above money and the damages for delay to the original state to the plaintiff.

The defendants asserted that the non-party 1 only managed and used each of the accounts of this case and did not receive a donation of money deposited to them.

2) Whether the instant transfer constitutes a gift

A) Relevant legal principles

If a creditor who seeks revocation of a fraudulent act asserts that an act of payment of money to the beneficiary is a gift to the beneficiary, it shall be proved that the act of payment of money constitutes a gift, and the burden of proof is on the part of claiming a fraudulent act (see Supreme Court Decision 2005Da28686, May 31, 2007).

At this time, in order to constitute the act of payment of the money, it should be interpreted as the "an agreement between the debtor and the beneficiary" in the sense that the debtor and the beneficiary gratuitously vests the money transferred as such to the beneficiary.

In particular, in a case where a remittance is made through a transfer of money to another person’s deposit account, the remittance may be made based on a variety of legal causes. The mere fact that a person with a certain personal relationship knowingly consented or understood to transfer money to his/her own deposit account or to the actual control of his/her own deposit account for the purpose of avoiding tracking the transfer of money to another person’s deposit account cannot be easily concluded that there was an agreement between the remitter and the account holder with the intent to grant the remittance amount free of charge as above to the account holder, barring any special circumstances (see, e.g., Supreme Court Decision 2012Da30861, Jul. 26, 2012). This cannot be readily concluded that the nominal owner of the deposit account opened through a real name verification procedure under the real name verification system has the right to claim the return of deposit as a party to the deposit account, barring any special circumstance. This is related to the relationship with the financial institution where the account was opened, and thus, the legal relationship between the remitter and the account holder does not immediately change (see, etc.).

B) Whether the donation was made to Defendant 1

Although Nonparty 1 paid KRW 701,325,506 to Defendant 1’s account as seen earlier, considering the following circumstances, it is insufficient to recognize that Nonparty 1 donated the said money to Defendant 1, and there is no other evidence to acknowledge it, taking into account the following circumstances, which are comprehensively acknowledged as follows: (a) Nos. 5, 6, 10 through 13, 15, and Nos. 3 and 4; (b) the result of the order to submit financial transaction information to the National Bank to the National Bank; and (c) the entire purport of the argument.

① Nonparty 1 requested Defendant 1 to open an account under his/her name on August 2010, and received the passbook and seal from Defendant 1, which was opened on August 27, 2010.

② From August 30, 2010 to December 29, 2010, KRW 701,325,506 deposited in Defendant 1’s account was deposited as follows. From August 30, 2010 to December 29, 201, the transaction amount of KRW 50,000 or more was deposited in cash several times and the balance was KRW 50,000. (The Plaintiff also recognized that “the money transferred to Defendant 1’s account was completely deposited.”

On August 30, 2010, 10, 10,000 trust deposit accounts in the table transaction Nos. 10,000, 100 on August 30, 2010, Defendant 1’s bank account (comprehion new) on August 31, 2010, 300,000 in bearer deposit certificates, which was issued on August 31, 3010, 40,000 deposit accounts in the name of Nonparty 3 (non-party 1’s subsidiaries), 10,000,000 deposit accounts on September 20, 200, 200, Nonparty 1’s bank account in the name of Defendant 5,000,000 trust accounts on October 10, 200, 200, Nonparty 1’s new deposit accounts in the name of Defendant 1’s bank account (non-party 1’s new deposit accounts in the name of Defendant 10,010.

③ From 2006, Defendant 1, who was used for cerebrovascular, was living together with Nonparty 3, a child in the Seo-gu apartment located in Gwangju-gu, Seo-gu. On the other hand, Nonparty 1 sold the land in his name in 2010 and directly received a large amount of sales proceeds exceeding 1.2 billion won, and around that time, entered and depart from Korea on three occasions in 2010 and four occasions in 201, and since 2009, Defendant 1 appears to have engaged in active economic activities by moving the land in sequence from Seo-gu, Seo-gu, Seoul to ○○dong, Namyang-gu, Seo-gu, Seoul, Seoul, to △△-dong, △△-dong, △△-si, △△-si, and △△-gun.

In light of such circumstances, inasmuch as the transaction amount of at least KRW 0,000 is traded by means of withdrawal, deposit, transfer, and cash withdrawal for the purpose of investment trust, Nonparty 1’s account is similar to the transaction type of Defendant 1’s account; Nonparty 5, the other party to the transfer of Defendant 1’s account, also has details of transactions in the account in the name of Nonparty 1 himself, it appears that Nonparty 1 deposited the money in the account of this case as above, and used it by means of distributed investments such as trust withdrawal, transfer withdrawal, cash withdrawal, etc.

④ On August 30, 2010, Defendant 2’s account that Nonparty 1 transferred KRW 100 million to one’s own account was newly opened as a term deposit on the date of transfer (Evidence 11 of this case). The trust account under Defendant 1, who received KRW 50,000,000 from Defendant 1’s account on five occasions, was newly opened on August 30, 2010 and November 15, 2010 (Evidence 12 of this case), and the periodical deposit account with Nonparty 3, who received KRW 100,000 from Defendant 1’s account, was also opened as a new “new” on August 31, 2010 (Evidence 10 of this case and the result of an order issued to submit financial transaction information to a national bank by this court).

However, in light of the fact that most of the aforementioned new accounts in the name of Defendant 1, Defendant 2, and Nonparty 3, who are Nonparty 1’s family members, were opened simultaneously at the time when Nonparty 1 terminated the account in which the money was transferred from a public bank ▽▽△△ branch, and that Nonparty 1 has been repeatedly traded in the name of himself / herself at the ▽▽△△ branch of a national bank, Nonparty 1 is likely to temporarily use or voluntarily open the account in the name of family, including each of the instant accounts, for the purpose of decentralizationing or managing his/her own funds.

⑤ The Plaintiff, most of the duties related to the withdrawal from Defendant 1’s account, was carried out in most of the “National Bank ▽▽▽△△△ branch.” While Nonparty 1 and Defendant 1’s address located far from 422 meters at the time, it should be deemed that Defendant 1 received and used the said money from Nonparty 1 as gifted by Nonparty 1. However, as seen earlier, it is insufficient to view that Nonparty 1 had repeatedly traded the said money during the trading period of Defendant 1’s account, as seen in paragraph (c) of the same Article, the amount equivalent to KRW 100,00,000, which was remitted to Defendant 2’s account on the same day, was transferred to Nonparty 1 and Defendant 1 again, and was disposed of directly by the title-holder of the said money. In light of the fact that Nonparty 1, who claimed by the Plaintiff, did not directly use the said money.

C) Whether to give gift to Defendant 2

The fact that Nonparty 1 deposited KRW 100,00,000 to Defendant 2’s account is as seen earlier, but the following circumstances, which are acknowledged as comprehensively taking account of the respective entries and arguments in the evidence Nos. 5 and 11, namely, the Defendant 2’s account was newly opened on August 30, 2010 and terminated on February 28, 201. Nonparty 1,332,450 equivalent to interest out of KRW 101,32,450 upon termination of the said account, was the Defendant 1’s national bank account under the name of Nonparty 1; KRW 60,000,000, which is part of the principal, was transferred to Defendant 1’s account at the time when Nonparty 1 was entirely managed and used; and Nonparty 2’s account was transferred to Defendant 1’s account at the time of termination or termination by taking account of the circumstances surrounding the establishment of the instant account under the name of Nonparty 1’s account.

Ultimately, it is insufficient to recognize that Nonparty 1 donated the above money deposited to Defendant 2’s account, and there is no other evidence to acknowledge it.

3) Sub-decisions

Therefore, the primary argument based on the premise that each of the instant transfers constitutes a gift contract concluded between Nonparty 1 and the Defendants is without merit.

B. Determination as to the conjunctive assertion

1) The parties' assertion

A) The plaintiff's assertion

If each of the instant transfers does not constitute a gift, and if Nonparty 1 uses each of the instant transfers in excess of debt, each of the instant transfers using the instant borrowed account constitutes a fraudulent act, which is concluded between Nonparty 1 and the Defendants with respect to each of the money deposited in each of the instant accounts, and thus reduces the property liable to Nonparty 1’s general creditors in relation to Nonparty 1’s trust agreement, it shall be revoked. The Defendants are obligated to refund to the Plaintiff each of the money deposited in each of the instant accounts and its delay damages.

B) The defendants' assertion

① Preliminary claim that each of the instant transfers constitutes a fraudulent act as a deposit owner’s title trust agreement is unlawful, even if five years have elapsed for exclusion period.

② Even if each of the instant transfers is a deposit owner title trust agreement, the balance of Defendant 1’s account was KRW 0 as of May 25, 2012 by using all the money trusted to each of the instant accounts by Nonparty 1, and the instant Defendant 2 account was already terminated. Accordingly, the deposit owner title trust agreement is also terminated or invalidated. Accordingly, there is no title trust agreement to be cancelled by fraudulent act.

2) Determination on the exclusion period Do and argument

The Defendants asserted that, inasmuch as the conjunctive claim on the deposit owner’s title trust agreement was added only by the application for modification of the purport of the claim made on October 6, 2016, which was five years after August 30, 2010, the Plaintiff asserted that the transfer of each of the instant transfers was a fraudulent act, the exclusion period is excessive and unlawful.

As seen in the part of the purport of the claim, the plaintiff's conjunctive claim is merely an addition of the method of attack, and thus, the above assertion by the defendants on the premise that the claim was added is without merit.

3) Judgment on the Plaintiff’s assertion

A) Relevant legal principles

With respect to money remitted by a debtor to another person's deposit account, if the debtor in a domestic relationship with the debtor and the nominal holder of the deposit account agree that the debtor holds the ownership of the deposit claim and takes management profits therefrom, it can be deemed that the so-called deposit account title trust contract has been concluded (see Supreme Court Decision 2014Da232982, Apr. 9, 2015).

In addition, where a deposit owner title trust agreement is concluded, restitution following the cancellation of a fraudulent act shall be based on the return of the subject matter itself, and on exceptional cases where it is impossible or considerably difficult. Therefore, where a deposit owner title trust agreement is cancelled as it constitutes a fraudulent act, restitution following the cancellation shall be made by transferring the deposit claim against the holder of the title trust to the financial institution and ordering the financial institution to notify the transfer thereof (see Supreme Court Decision 2014Da212438, Jul. 23, 2015).

Meanwhile, in a case where a creditor filed a lawsuit against a beneficiary seeking revocation or restitution of a fraudulent act on the ground of a debtor's fraudulent act, and the said fraudulent act is 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 the benefit of protecting the rights is extinguished by such lawsuit (see Supreme Court Decision 2007Da85157, Mar. 27, 2008). This legal principle is reasonable where the creditor returns to the debtor the property for which return was sought by the revocation of such fraudulent act before the lawsuit for revocation of a fraudulent act was filed (see Supreme Court Decision 2012Da952, May 21, 2015).

B) the board;

The facts that Defendant 2’s account was terminated on February 28, 201 are as seen earlier, and according to the evidence No. 10, Nonparty 1’s withdrawal of all the money deposited in Defendant 1’s account, the remainder of May 25, 2012 is recognized as the ground for remainder of the base amount of Defendant 1’s account. Moreover, Nonparty 1 collected and used all the money deposited in the said account while entirely managing and using each of the instant accounts, as seen earlier.

According to the above facts of recognition, each money deposited in each of the accounts of this case as claimed by the Plaintiff was already returned to Nonparty 1. Thus, there is no benefit in the protection of rights to seek cancellation of the title trust agreement of deposit holders and restitution between Nonparty 1 and the Defendants.

In addition, the plaintiff sought restitution against the defendants by the method of compensation for value, but as seen earlier, unless there is evidence to acknowledge the "the defendant withdrawn and used each of the money deposited in each of the accounts of this case", it cannot be claimed for compensation for value, and it is necessary to seek restitution by the method of transferring deposit claims. However, since there is no balance of each of the accounts of this case, the defendants did not own the relevant deposit claims, as seen earlier, the plaintiff's assertion is without merit.

4) Sub-committee

Therefore, there is no reason for the plaintiff's preliminary assertion seeking revocation and reinstatement on the ground that each transfer of this case constitutes a fraudulent act as a deposit owner title trust agreement.

4. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judges Choi Jin-ho (Presiding Judge)

1) Meanwhile, through the preparatory brief (4 pages) dated June 12, 2017 and the preparatory brief (7 pages) dated June 28, 2017, the Plaintiff stated that the conjunctive claim that the Plaintiff added at the first instance court constituted a claim for a title trust agreement, other than the existing gift agreement, regarding the legal nature of each account transfer agreement as of August 30, 2010, thereby making it clear that it constitutes an addition to the method of attack.

2) In the application for amendment of the purport of the claim made on October 6, 2016, the Plaintiff asserted that “ even if Nonparty 1 did not donate money to the Defendants, the said remittance constitutes a title trust of the depositor.” In the written brief dated June 12, 2017, the Plaintiff asserted that “each of the instant transfers in accordance with the title trust agreement of the depositor” is a fraudulent act.