Fraudulent Gains;

It cannot be deemed that a separate deposit owner’s title trust agreement was concluded whenever money is deposited in the instant deposit account.

2013 Gohap34965 Undue gains

Korea

KoreaA

2015.03.24

2015.04.14

1. The plaintiff's primary and conjunctive claims are all dismissed.

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

Cheong-gu Office

First, the Defendant shall pay to the Plaintiff 5% interest per annum from December 17, 2011 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment. Preliminaryly, the Defendant shall pay to the Plaintiff the amount calculated at the rate of 17 December 17, 201 between the Defendant and the BB, and the amount calculated at the rate of 20% interest per annum from the next day to the day of complete payment. The trust agreement between the Defendant and the Plaintiff shall be revoked, and the Defendant shall pay to the Plaintiff the amount calculated at the rate of 5% interest per annum from the day after January 30, 2012 to the day of full payment.

1. Basic facts

A. The Defendant is the studio of thisB, and this BB is a person who runs the construction business, such as studio, without registering the business in the △dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong.

B. On January 30, 2012, the Defendant purchased 00-0 square meters, 168.2 square meters (hereinafter “instant land”) and the above ground buildings from KimCC and MadD, Magdong-dong, Seodong-gu, Seodong-gu, Madong-gu (hereinafter “Seoul”), and paid the down payment of KRW 00,000,000,000 for contract, and the intermediate payment of KRW 00,000,000 for the remainder on March 5, 2012, respectively.

C. From the ○○ Account in the name of the Defendant (hereinafter “instant deposit account”) to December 17, 201, KRW 00,000,000, and KRW 00,000,000 on January 30, 2012 were transferred to MaD respectively. On March 5, 2012, KRW 00,000 was withdrawn as a check and paid as an intermediate payment. On March 16, 2012, KRW 00,000,000 was withdrawn in cash and paid as a balance.

D. As to the instant land, the registration of ownership transfer was completed under the Defendant’s name on March 13, 2012, and on the same day, the registration of ownership transfer was completed over the said land, including the debtor, the creditor, the creditor, the maximum debt amount, KRW 00,000,000 (the loan was deposited into the instant deposit account on March 16, 2012).

E. On January 18, 2013, thisB newly constructed a building on the instant land and completed registration of preservation of ownership in the name of the Defendant for the said new building, and leased the said new building to E, etc., the Defendant’s agent, and the said new building.

F. Around August 5, 2013, this BB is the Defendant’s agent, and sells the instant land and its ground new building to LF in the purchase price of KRW 000,000,000,000, and completed the registration of ownership transfer in the name of FF on August 29, 2013.

G. However, the facts are that this case’s deposit account is used by BB from the Defendant, that this case’s land and new building on its ground are trusted in trust to the Defendant by B, and that this case’s new building was leased and sold by B, and that this case’s new building was leased only in the name of the Defendant.

H. The Plaintiff imposed a tax of KRW 0,000,000 on the grounds that B had failed to sell and filed a non-report on transfer income tax from 2003 and 2008 to 2012 while operating a studio construction business without filing a business registration, and this B is currently in arrears, and there is no property in the name of BB.

2. Determination

(a) Main cause of claim: Claim for restitution of unjust enrichment; and

1) Summary of the Plaintiff’s assertion

The title trust agreement between the Defendant and the B is null and void in accordance with the Act on the Registration of Real Estate under Actual Titleholder’s Name. The Defendant, the title trustee, is obligated to obtain full ownership of the instant real estate and return KRW 00,000,000 to the BB by unjust enrichment. As such, the Plaintiff, the creditor of the B, seeking restitution of unjust enrichment by subrogationing the Defendant.

2) Determination

According to the above facts, the title trust relationship between the Defendant and the BB on the instant land was terminated by the sale of the instant land to the FF. Furthermore, in view of the fact that the instant land and the new building on the instant land were in fact leased as the owner, and that the BB attended and entered into a contract with the FF at the time of entering into a sales contract with the said land, it is deemed that the said price was received. Therefore, it is difficult to deem that the Defendant acquired property benefits without any legal cause against the BB at the time of filing the instant lawsuit.

Therefore, we cannot accept this part of the plaintiff's assertion.

(b) Preliminary cause of claim: Revocation of fraudulent act and restitution to original state;

1) Summary of the Plaintiff’s assertion

This BB was used for its own construction business by creating a borrowed account under the name of the Defendant. As such, the Defendant constitutes a title trustee, the Defendant is said to be a fraudulent act detrimental to the general creditor. As such, the deposit account holder’s title trust in the instant deposit account is deemed to be a fraudulent act detrimental to the general creditor. As such, the amount of KRW 00,000,000 paid to Gohap for the purchase of the instant real estate out of the instant deposit account, and the amount of KRW 00,000,000 on January 30, 2012 and KRW 00,000,000 on March 5, 2012 should be revoked as a fraudulent act, and the Defendant is obligated to compensate for the said amount as restitution.

2) Determination

In the instant deposit account, KRW 00,000,000 on December 17, 2011, and KRW 00,000,000 on January 30, 201, respectively, were transferred to JeongD, and KRW 00,000 on March 5, 2012 was withdrawn as a check, and on March 16, 2012, was withdrawn in cash. As seen earlier, the fact that KRW 00,000,000 was withdrawn in cash.

On the other hand, the object of creditor's right of revocation is a legal act between the debtor and the beneficiary. It is difficult to view that the transfer from the deposit account in this case to another person is a legal act between B and the defendant who is the beneficiary (this is only a transaction between the deposit title holder and the financial institution) and that the transfer and withdrawal itself constitute a fraudulent act subject to creditor's right of revocation, apart from the fact that the deposit account itself is subject to creditor's right of revocation as a fraudulent act.

3. Conclusion

Therefore, all of the plaintiff's primary and conjunctive claims are dismissed, and it is so decided as per Disposition.