The transfer of real estate in excess of debt constitutes a fraudulent act prejudicial to the plaintiff's claim.

The Defendants’ act of entering into each of the instant gift agreements with respect to the instant real estate Nos. 1 and 2, the sole property of which is one of the Defendants, and completing each of the instant registration of transfer of ownership constitutes a fraudulent act with the knowledge that the Plaintiff, a creditor, would be harmed, barring any special circumstance. The Defendants’ bad faith, a beneficiary, is presumed

Article 30 of the National Tax Collection Act (Cancellation of Fraudulent Acts and Restoration to Original State)

2013 Ghana 53761 Revocation of Fraudulent Act

Korea

1.A 2.B

September 27, 2013

October 25, 2013

1. As to each real estate listed in separate sheet 1:

A. Revocation of the gift agreement concluded on March 29, 2011 between Defendant AA and thisCC (OO-O-OOO-OOO-OO-OO-O-O-O-O-O-O-O-O-O-O

B. Defendant AA shall implement the procedure for registration of cancellation of each transfer of ownership, which was completed as No. 16411, received on March 31, 2011, with thisCC’s Daegu District Court racing support.

2. As to real estate listed in Appendix 2:

A. Revocation of the gift agreement concluded on March 31, 201 between Defendant B and thisCC;

B. Defendant B shall comply with the registration procedure for cancellation of ownership transfer registration completed by the U.S. District Court No. 30956, Mar. 31, 2011 to thisCC.

3. The costs of lawsuit shall be borne by the Defendants.

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

A. The relationship between the parties

ThisCC is a person who bears tax liability against the plaintiff, and the defendant Lee AA is an son of thisCC, and the defendant Lee B is an son of thisCC's private village.

B. Plaintiff’s establishment of a taxation claim against thisCC

1) On January 20, 201, thisCC transferred the OO-dong 1531-6 large scale 718.9 square meters and its ground buildings to OOOOO(hereinafter “instant transfer”) to D Co., Ltd. on January 20, 201. On March 30, 2011, it made a preliminary return of the OOOO in the district tax office having jurisdiction over the district tax office, but did not pay the same.

2) Around June 10, 2011, the director of the Ulsan District Tax Office under the Plaintiff’s control determined and notified the deadline for payment to thisCC on June 30, 201, and determined and notified the OOO of the capital gains tax for the transfer of this case.

3) On June 12, 2013, June 2, 2013, which was the date of the instant lawsuit due to the delinquency in payment of the said capital gains tax obligation, it is an OOO (hereinafter “instant taxation claim”).

C. Conclusion of each gift agreement between thisCC and the Defendants

1) On March 29, 2011, thisCC donated each of the real estate listed in the separate sheet 1 (hereinafter referred to as the “real estate 1”) to Defendant A, who is the ASEAN, as of March 29, 201. On March 31, 2011, Defendant A had completed the registration of transfer of ownership as of the instant real estate 1 as of March 31, 201, receipt No. 16411 on the ground of the said donation.

2) In addition, on March 31, 2011, thisCC donated (hereinafter referred to as "each of the above donations") the real estate listed in the separate sheet 2 (hereinafter referred to as "each of the above donations") to Defendant BB, a private village partner, and completed the registration of ownership transfer (hereinafter referred to as "each of the above registrations of ownership transfer") as of March 31, 201 with the Ulsan District Court No. 30956, Mar. 31, 2011 as to the second real estate of this case due to the above donations.

3) At the time of the conclusion of each gift agreement of this case, theCC was in excess of its obligation with no particular property, except for the real estate Nos. 1 and 2 of this case.

Facts that there is no dispute over the basis of recognition, entries in Gap evidence 1 through 4 (including paper numbers), the purport of the whole pleadings

2. Determination

(a)the existence of preserved claims;

Although it is required that a claim that can be protected by the obligee’s right of revocation has arisen prior to the act that can be viewed as a fraudulent act in principle, there is a high probability that at the time of the fraudulent act, there has already been legal relations that serve as the basis of the establishment of the claim, and that the claim should be established in the near future, and where a claim has been established as a result of the fact-finding in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2000Da64038, Nov. 26, 2002). This legal principle applies to a taxation claim, as it applies to a taxation claim, even if there was no specific taxation disposition at the time of the fraudulent act, and if a taxation claim has been established specifically through a series of procedures, such as a tax disposition, even if there was a high probability that a claim may be established in the near future (see, e.g., Supreme Court Decision 2006Da67536, Jun. 29, 2007).

According to the above facts, the transfer of this case on January 20, 201, which was prior to the conclusion of each of the instant gift contracts, was already carried out on January 20, 201, and thus, there was a high probability of the fact that the abstract liability for payment, which serves as the basis for the establishment of the instant tax claims, was established, and that the claim of this case was created by the Plaintiff’s decision and notification of the transfer income tax to thisCC around June 10, 201, since the tax claim of this case becomes specific and specific, the claim of this case can be the creditor’s right of revocation.

B. Establishment of fraudulent act

The debtor's act of selling real estate, which is one of his own property, and replacing it with or transferring it to another person without compensation, becomes a fraudulent act against the creditor, barring special circumstances. Thus, the debtor's intent of deception is presumed to exist, and the burden of proving that the purchaser or the transferee did not have bad faith is the beneficiary (see, e.g., Supreme Court Decision 2000Da41875, Apr. 24, 2001).

According to the above facts, although thisCC had already been in excess of its obligation at the time of each gift agreement of this case, the act of entering into each of the instant gift agreements with the Defendants on the first and second real estate of this case, which is one of its sole property, and completing each of the instant registration of transfer of ownership constitutes a fraudulent act with the knowledge that it would prejudice the Plaintiff, who is a creditor, barring any special circumstance, and the Defendants’ bad faith, which is

C. Determination as to the defendants' assertion

1) As to Defendant Lee Dong-A’s assertion

Since Defendant AA donated the instant Real Estate No. 1 to thisCC as a repayment of the existing claim, it argues that the said donation contract does not constitute a fraudulent act, or that it is one’s good faith, but it is not sufficient to recognize only the respective descriptions of evidence No. 1, No. 1, No. 2, No. 2-1, and No. 2, and there is no other evidence to acknowledge otherwise, Defendant AA’s above assertion is without merit.

2) As to Defendant BB’s assertion

Defendant B asserted that the instant immovable property No. 2 was originally nominal title trust to thisCC, but was returned to his own name in the form of donation upon termination of title trust on March 31, 2011, and that it does not constitute a fraudulent act. However, it is not sufficient to acknowledge each of the statements in the evidence Nos. 1, 2, and 3, and there is no other evidence to acknowledge it. Thus, Defendant BB’s above assertion is without merit.

Even if there was a title trust agreement on the second real estate between Defendant BB and thisCC, it shall be deemed as a contractual title trust, unless there is any assertion and proof as to the fact that the instant second real estate was the party to the sales contract on the second real estate of this case and the seller was aware of the said circumstances at the time of the seller’s purchase from Park E-E.

However, in a case where a title truster and a title trustee entered into a so-called contract title trust agreement, and entered into a sales contract on real estate with the owner who was unaware of the fact that the title trustee was a party to the contract, and completed the registration of ownership transfer pursuant to the said sales contract, the title trustee, despite the invalidity of the title trust agreement between the title truster and the title trustee, is fully entitled to the relevant real estate under the proviso of Article 4 (2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and the title trustee bears the duty to return unjust enrichment equivalent to the purchase fund provided from the title trustee. In such a case, the real estate acquired by the title trustee becomes the debtor’s common secured property provided to the general creditors of the title trustee, and the title truster is only one of the monetary creditors in relation to the title trustee. Thus, if the property of the title trustee is insufficient to fully repay the debt, the transfer of the said real estate to the title truster or his/her designated person constitutes fraudulent act in relation to other creditors (see Supreme Court Decision 207Da74874, Sep. 25, 2008).

In light of the above legal principles, the first proviso of Article 4(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name applies to the second real estate of this case, and thisCC acquired full ownership of the second real estate of this case. The transfer of the second real estate of this case to Defendant B while the debt exceeds the debt to thisCC constitutes a speculative act as it harms the Plaintiff’s interest, which is the creditor of thisCC. The allegation by Defendant BB does not seem to have any effect but is without merit.

D. Sub-committee

Therefore, each gift contract of this case must be revoked as a fraudulent act, and the defendants are obligated to implement the procedure for cancellation registration of each transfer of ownership of this case with the restoration to original state accordingly.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is justified and it is so decided as per Disposition by the assent of all.