The act of donation of real estate to the spouse, which is the only property, constitutes fraudulent act.

Since the act of donation to the spouse of real estate, which is the only property that had been liable for payment of capital gains tax, constitutes a fraudulent act detrimental to the obligee, and as the obligor's intention is recognized, the defendant's bad faith is presumed also.

Article 30 of the National Tax Collection Act

Suwon District Court 2015Kadan52903 Revocation of Fraudulent Act

Korea

AA

April 20, 2016

June 1, 2016

1. The contract of donation concluded on October 19, 2012 between the Defendant and BB regarding the real estate listed in the separate sheet shall be revoked.

2. The defendant will implement BB the procedure for the registration of transfer of ownership due to the cancellation of fraudulent act with respect to the real estate listed in the attached list.

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

The same shall apply to the order of the Gu office.

1. Facts of recognition;

A. On October 26, 201, BB sold o-do 736, o-do o-si o-si o-do 736, 736-1, 737 real estate (hereinafter referred to as "the real estate in Jejubuk-ri") to another person. On December 30, 201 and January 2, 2012, BB made a preliminary return of capital gains tax on land that is not farmland in accordance with the Restriction of Special Taxation Act. (b) The Director of the competent district tax office confirmed that BB under the on-site investigation, confirmed that the transfer income tax would be imposed on October 11, 201, and sent notice to BB on the future that the contract would be imposed on the expected total tax amount, and BB received the only list of the real estate donations on the grounds that B would be Defendant B’s spouse on December 10, 2015 (hereinafter referred to as “the only list of the instant real estate donations”).

D. On December 1, 2012, on December 31, 2012, the KUB notified the payment of capital gains tax of KRW 133,105,510 to BB as of December 31, 2012.

E. On December 29, 201, the instant real estate was established with a maximum debt amount of KRW 84 million, the debtor BB, and the creditor M&C Co., Ltd. on December 29, 201. However, on November 15, 2013, the debtor was changed to the defendant on November 15, 2013. In addition, on November 15, 2013, the registration of the establishment of the instant real estate was completed, which became the debtor, and the Defendant, the M&C life insurance company.

G. As of September 23, 2014, BB did not pay KRW 60,370,770 (hereinafter “instant taxation claim”).

2. Determination

A. Formation of preserved claims

In principle, it is required that a claim that can be protected by the obligee’s right of revocation has arisen prior to the commission of an act that can be viewed as a fraudulent act. However, at the time of such fraudulent act, there has already been legal relations that serve as the basis of the establishment of a claim, and there is high probability about the establishment of a claim in the near future, and in the near future, where a claim is realized and its probability has been realized in the near future, such claim may also become a preserved claim of the obligee’s right of revocation. Income tax on gains from the transfer of an asset is abstractly established on the last day of the month in which the amount that serves as the tax base pursuant to Article 21(2)2

Therefore, the obligation to pay capital gains tax from the transfer of ori real estate was established by the lapse of October 31, 201, which is the end of October 201, 201, of the month when the ownership of ori real estate was transferred, and the legal relationship which is the basis of establishing the claim was established by abstractly established. As long as BB made a preliminary return of capital gains tax on December 30, 201 and January 2, 2012 on the preliminary return of capital gains tax under the Restriction of Special Taxation Act on land that is not farmland, as long as BB made an application for reduction or exemption of capital gains tax on her own land under the Restriction of Special Taxation Act, it was highly probable that the taxation claim in this case becomes final and conclusive due to the above basic legal relationship, which was revealed through the Plaintiff’s tax investigation, etc., in the near future. As long as the period was not yet elapsed after the donation contract in this case, it became probable that the Plaintiff’s taxation claim in this case became final and conclusive as BB’s fraudulent claim in this case.

BB’s donation of the instant real estate to the Defendant, the only property of which the Plaintiff was liable to pay capital gains tax against the Defendant constitutes fraudulent act detrimental to the Plaintiff, the obligee, and the intent of the BB’s intent is recognized. Therefore, the Defendant’s bad faith, the beneficiary, is presumed to be presumed. Determination of the Defendant’s defense is made.

The Defendant purchased the instant real estate with the money created by the Defendant’s father and the Defendant, and registered the ownership transfer under the name of BBB, the husband, and actually owned by the Defendant. If BB commenced multi-stage sales, it would lose the real estate termination under the name of the Defendant.

The registration was made. BB and the Defendant intentionally under-reported the transfer income tax or did not intend to evade the tax obligation of this case, and the Defendant asserts that the Defendant is a bona fide beneficiary, since BB did not know that it was in excess of the obligation at the time of the donation contract of this case. However, it is insufficient to recognize that the Defendant was bona fide at the time of the donation contract of this case only with the descriptions of the evidence Nos. 1 through 3 (including the number of branches in the case of serial number), and there is no other evidence to acknowledge otherwise.

If a creditor’s revocation of a fraudulent act and a claim for restitution are acknowledged pursuant to Article 406(1) of the Civil Act, the beneficiary is obligated to return the subject matter of the fraudulent act to the debtor as restitution, and if it is impossible or considerably difficult to return the subject matter of the fraudulent act, the beneficiary shall compensate for the equivalent amount of the value of the subject matter of the fraudulent act as a performance of the duty to restore. Here, where the return of the subject matter is impossible or considerably difficult, means cases where the return of the subject matter is not simply absolute or physically impossible, but it is difficult to expect the realization of the performance in light of the rules

Therefore, barring special circumstances, such as the fact that a third party, after a fraudulent act, may transfer the subject matter to a beneficiary without any restriction on mortgage, etc., the creditor may seek compensation equivalent to the value of the subject matter instead of the return of the subject matter. However, the creditor is not allowed to seek the return of the subject matter when he/she is at risk or disadvantage, and the creditor can seek the return of the subject matter directly against the beneficiary instead of the beneficiary by means of restitution.

As seen earlier, on November 15, 2013, after the donation contract of this case, the debtor of the right to collateral security (the maximum debt amount of 84 million won) was changed from BB to the defendant, and on the same day, the registration of the establishment of the right to collateral security (the maximum debt amount of 39.6 million won) was additionally completed with the defendant as the debtor, so it shall be deemed that the return of the real estate of this case is impossible or considerably difficult. However, even if the plaintiff seeks the return of the real estate of this case by considering the actual secured debt amount and the total amount of the tax claim of this case, the plaintiff is seeking the return of the original claim, thereby seeking the implementation of the registration procedure for the transfer of ownership in BB instead of claiming the return of the value, on the ground that the market price of

Ultimately, the gift contract of this case constitutes a fraudulent act, and thus its revocation and its reinstatement requires the defendant to implement the registration procedure for transfer of ownership due to the cancellation of fraudulent act to BB on the real estate of this case.

3. Conclusion

If so, the plaintiff's claim is justified.