Where a separate registration of ownership transfer is completed other than the principal registration procedure based on provisional registration.

If a provisional registration authority receives a separate registration of transfer of ownership without following the procedure of principal registration based on provisional registration, it shall not be deemed the same as the principal registration based on the provisional registration of a separate registration of transfer of ownership.

2014Na10930 Revocation of Fraudulent Act

Korea

The Minister of Justice of the Republic of Korea

Litigation performers 000

00

Defendants Law Firm 00

Cheongju District Court Decision 2013Da154566 Decided May 14, 2014

April 8, 2015

April 22, 2015

1. All appeals by the Defendants are dismissed.

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

3. He shall correct "00 205-1" in paragraph 2 of the order of the court of first instance to "200 -205-2".

1. Purport of claim

(a) With respect to the 590-14 50 m2, Cheongju-si, Cheongju-si, resignation:

1) The real estate sales contract concluded on April 1, 2009 between Defendant KimB and KimA shall be revoked.

2) Defendant KimB shall implement the procedure for registration of cancellation of ownership transfer registration that was completed by the Cheongju District Court No. 36642 on April 2, 2009 to Cheongju KimB.

B. With respect to 00 00 Doz. 205-2 large 661 m2:

1) The real estate sales contract concluded on April 6, 2009 between Defendant NewM and KimA is revoked.

2) Defendant NewM will implement the procedure for registration of cancellation of ownership transfer registration that was completed on April 6, 2009 by Cheongju District Court Decision 37959.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim against the defendants is dismissed in entirety.

1. Basic facts

A. The director of the tax office of the plaintiff 20. The 2002. 2. 202. 200 m20 m2, 203, 208 m204 m20 m2, 160 m20 m20 m20 m2, 200 m20 m26 m20 m2, 160 m20 m20 m26 m2, 160 m20 m3, 200 m20 m36 m2, 200 m30 m20 m20 m36 m2, 200 m30 m20 m20 m26 m20 m3, 200 m286 m30 m286 m30 m2, 2005 m20 m20 m26 m3.

At the time of the completion of each of the above registration of ownership transfer, KimA was in excess of the obligation exceeding the active property as shown in the attached Table 2.

2. Determination as to the defendants' defense prior to the merits

A. The defendants' assertion

On September 29, 201, after the completion of the registration of transfer of ownership of the Defendants on the retired real estate and 00 units of real estate, the Plaintiff conducted an investigation to track the arrears of KimB and made a disposition of loss on April 18, 2012. Therefore, it is reasonable to deem that at the time of the disposition of loss, the Plaintiff was aware that the act of ownership transfer of retired real estate to the Defendant KimB and the act of ownership transfer of 00 units of real estate against the Defendant Shin was a fraudulent act. Ultimately, the instant lawsuit for revocation of fraudulent act was unlawful as it was filed on July 10, 2013, one year after the Plaintiff became aware of the fraudulent act as above.

1) In the exercise of the obligee’s right of revocation, “the date on which the obligee becomes aware of the cause for revocation” means the date on which the obligor becomes aware of the fact that the obligor had committed a fraudulent act while knowing that it would prejudice the obligee. This is not sufficient to simply recognize the fact that the obligor had conducted a disposal act of the property, and it is required to know the existence of a specific fraudulent act and to know the fact that the obligor had an intent to deceive the obligor. Meanwhile, the burden of proof as to the lapse of the limitation period lies in the obligee’s revocation lawsuit (see, e.g., Supreme Court Decision 2007Da63102, Mar. 26, 2009) (see, 2007Da63102, Mar. 26, 2009). According to the evidence evidence No. 14, the Plaintiff’s assertion was written off against KimA, but it is deemed that there was no property to execute the disposition on loss under the National Tax Collection Act, and thus, there is no reason to acknowledge otherwise the Defendants’s defense against the Defendants.

3. Determination as to the claim against Defendant KimB

A. The parties' assertion

1) The plaintiff's assertion

Since there exists the instant taxation claim against the Plaintiff’s KimA, and KimA transferred the ownership of the retired real estate to the Defendant KimB, his/her father in excess of his/her liability, the sales contract for the retired real estate should be revoked as a fraudulent act, and the restoration to the original state shall be by the method of returning the original property.

2) Defendant KimB’s assertion

KimB shall receive loans of KRW 20,000,000 from the affiliated hospital of the Chungcheong University on June 3, 2008 from 20,000.

In the way of depositing the above KRW 20,000,000 to the head of Tong in the name of Kim GG, he lent the above KRW 20,000 to KimG, and the mortgage was established on the retired real estate as a security. Since KimA was unable to repay the above money, it was paid in kind on April 1, 2009 due to his failure to repay the money, this should not be constituted as a fraudulent act by the creditor's exercise of the right, or there is no intention to do so. Even if a fraudulent act is established, since the real estate on which the right to collateral was established was cancelled after the transfer as a fraudulent act, restitution should be made by the method of compensation for value.

B. Determination as to the establishment of fraudulent act

1) We examine whether Defendant KimB has a claim against the Defendant against KimB, and the compliance with this.

Eul's entry of Eul's evidence 15 is not trustable, and entry of Eul's evidence 1, and Eul's evidence 16

Defendant KimB deposited KRW 20,00,000 in a passbook in the name of KimG.

However, there is no evidence to prove that the above money was lent to KimA, and it is recognized as such.

and there is no other evidence to acknowledge it.

2) According to the above basic facts, the Plaintiff has the instant taxation claim against KimA, and Kim Pung.

The way was to sell the real estate to Defendant KimB on April 1, 2009 while the debt was exceeded.

Ga, the above sales contract between the defendant KimB and KimA is a fraudulent act against the plaintiff as the creditor.

shall be eligible.

3) In light of the above financial status and the fact that the defendant KimB was a parent of the KimA, the defendant KimB shall be the above.

Recognizing that a sales contract was aware that the other creditors would be harmed by a sales contract.

It is reasonable to presume that Defendant KimB’s intention to understand is presumed, and there is no other evidence to reverse it.

(c) Methods of reinstatement;

According to the evidence No. 9, Eul's evidence No. 3-2, each entry of the evidence No. 1 and No. 1

Free will expire on October 9, 2008, and the fact that there was no debt secured by the establishment registration of the neighboring mortgage No. 2, as seen earlier, the entire immovable property, which was retired at the time of the fraudulent act, was a joint security of general creditors. Thus, restitution should be made by the method of returning the original property.

D. Sub-determination

Therefore, the above argument by the plaintiff is with merit and the defendant KimB's above argument is without merit.

On April 1, 2009, between KimB and KimA, the sales contract for retired real estate was a fraudulent act.

The defendant KimB shall cancel the registration of transfer of ownership with respect to retired real estate to KimB.

have an obligation to take place.

4. Determination as to the claim against Defendant NewM

A. The parties' assertion

1) The plaintiff's assertion

The claim of this case against the plaintiff KimA exists, and KimA shall be in excess of its obligation.

Since the ownership of 00 interest in real property was transferred to newM, every 00 interest in real property

Every contract shall be voided as a fraudulent act.

2) Defendant NewM’s assertion

A) As to the fraudulent act

(1) The agreement that KimA shall pay to Defendant NewM KRW 160,000,000 by July 30, 2004.

As KimA did not repay its debts on the above date, Defendant NewM did not pay its debts on the above debt.

On October 30, 2004, Cheongju District Court (Cheongju District Court No. 55531, Nov. 23, 2004) completed the registration of the right to claim the transfer of ownership on the ground of the pre-sale promise on October 30, 204.

(2) On April 6, 2009, the registration of ownership transfer for 00 real estate was completed due to sale.

As recommended by a certified judicial scrivener as a tax issue at the time, only the registration is made as a reason of sale.

In substance, the principal registration based on the above provisional registration is the principal registration.

(3) If the principal registration based on the provisional registration has been completed as above, the cause of the provisional registration will be caused as of the date of provisional registration.

Since it is necessary to determine whether the above provisional registration was a fraudulent act, it is the pre-contract date for sale that was the cause of the above provisional registration.

10. On the basis of 30.30., the amount of taxes in the KimA's amount of taxes in excess of KRW 5,658,00, as well as the above amount of taxes in excess of

The transfer of ownership is not a fraudulent act due to the lapse of the statute of limitations on May 30, 2009 for a delinquent tax claim.

(c)

B) As to the deceased will:

The sale on April 6, 2009 was only the payment in lieu of the above obligation to Defendant NewM by KimA.

AA’s tax liability is not limited to the evasion of the tax liability of the AA, and thus, to the KimA or Defendant NewM:

There was no intention of year.

B. Determination as to the establishment of fraudulent act

1) As to the fraudulent act

A) A separate ownership holder without resorting to the procedure of principal registration based on provisional registration

If a registration of transfer has been made, the person holding the provisional registration shall, unless there are any special circumstances, re-register the applicant.

Since the principal registration based on the registration can be claimed, the separate provisional registration for ownership transfer is registered.

It would not be the same as the principal registration based on the above (Supreme Court Decision 2001Da73138 Decided 26, 2002, etc.).

In accordance with the whole purport of the statement and argument of No. 2, Defendant New MF’s assertion

Although the provisional registration of ownership transfer is recognized as having been completed, the provisional registration is 2009.

4.6. Grounds for cancellation. The registration of transfer of ownership was cancelled, and the principal registration based on the provisional registration is registered.

In addition, it can be recognized that the contract was completed on April 6, 2009 on the ground of a separate contract;

The provisional registration of ownership transfer or actual registration of ownership transfer due to the sale in form;

There is no evidence to acknowledge the special circumstances of the principal registration of the deadline, so the sales contract of April 6, 2009 is subject to revocation of fraudulent act.

B) According to the above facts, the Plaintiff has the instant taxation claim against KimA.

C. Since KimA sold 00 interest on April 6, 2009 to Defendant NewM in excess of its obligation, the above sales contract between Defendant NewM and KimA is a fraudulent act against the Plaintiff, a creditor.

2) As to the deceased will

In light of the above financial status as well as the fact that Defendant NewM was the Dong of KimA, KimA as above.

It is held that it was aware that it would prejudice other creditors due to a contract of sale.

It is presumed that Defendant NewM’s intent to commit suicide is presumed, and there is no other evidence to reverse it.

3) Therefore, the Plaintiff’s above assertion is with merit, and Defendant NewM’s above assertion is without merit.

C. Sub-decision

Therefore, on April 6, 2009 between Defendant NewM and KimA, the real estate sales contract of 00 Y between Defendant NewM and KimA was salute.

Since it is above, Defendant NewM will cancel this, and Defendant NewM will transfer its ownership over 00 real estate to KimA.

There is an obligation to cancel registration.

3. Conclusion

Thus, the plaintiff's claim against the defendants is justified, and the court of first instance shall accept it.

The judgment is justified with this conclusion, and all appeals by the Defendants are dismissed as it is without merit.

In the disposition of the court of first instance, "00 205-1" in paragraph (2) of the disposition of the court of first instance is clear that it is a clerical error in the "200 .05-2", and thus, it is decided to correct it.