Defendant does not constitute a fraudulent act as a bona fide beneficiary.

Defendant does not constitute a fraudulent act as a bona fide beneficiary.

2014-Aband 218459

Korea

AA

2015.23

2015.09.03

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

A sales contract concluded on December 30, 2013 with respect to the real estate listed in the separate sheet (hereinafter referred to as “instant real estate”) between the Defendant and SS shall be revoked. The Defendant will implement the procedure for registration of cancellation of ownership transfer registration completed on January 24, 2014 by the Suwon District Court ○○○○○○○ registry office with respect to the instant real estate.

1. Summary of the plaintiff's assertion

SS completed the registration of ownership transfer in the future of the Defendant on the ground of the instant sales contract on January 24, 2014, in excess of the debt owed by the Plaintiff 90,144,440 won, including value-added tax, to the Plaintiff. The instant sales contract constitutes a fraudulent act detrimental to the Plaintiff, who is a creditor, and thus ought to be revoked. Accordingly, the Defendant is obliged to implement the procedure for cancelling the registration of ownership transfer in the name of the Defendant with respect to the instant real estate.

2. Determination as to whether the defendant acted in good faith

In light of the following circumstances, it is reasonable to view the Defendant as a bona fide beneficiary in view of the entries in the evidence Nos. 1 through 15 and the testimony of KK witness, which can be recognized by comprehensively taking into account the overall purport of the pleadings.

① The Defendant was an employee of the company operated by SS husband, and purchased the instant real estate at the recommendation of KK. However, on June 2012, the Defendant retired from the said company and was operating a separate business at the time of the instant sales contract. Therefore, it is difficult to view that the Defendant was well aware of the financial status of the SS husband at the time of the instant sales contract.

② Furthermore, the SS couple asserts that he did not know the existence of the tax in arrears before the instant lawsuit was filed, because he did not receive a tax notice from the Plaintiff.

③ The instant sales contract was concluded or performed normally. That is, the Defendant: (a) determined the sales price of the instant sales contract as KRW 250 million; (b) paid KRW 20 million as down payment; (c) KRW 50 million as intermediate payment; and (d) the remainder of KRW 110 million as the remainder of KRW 50 million; and (b) replaced the Defendant’s acquisition of the secured debt of the right to collateral security, which was established on the instant real estate, with the payment of KRW 110 million as the remainder of KRW 100 million. Accordingly, the Defendant naturally transferred the sales contract to KK on December 30, 2013; and (c) transferred the remainder of KRW 30 million as of KRW 20 million as of the intermediate payment on January 24, 2014; and (d) transferred the remainder of KRW 300 million as of the intermediate payment to △△△△△△△△; and (e) transferred the remainder of KRW 100 million as of January 24, 2014.

④ In light of the fact that the officially announced price of the instant real estate at the time of the instant real estate was approximately KRW 170 million, the above sales price is considered close to the market price, and no other circumstance exists to deem that the instant sales contract was concluded on an abnormal amount that significantly differs from the market price.

⑤ The Defendant and SS accused of violating the Punishment of Tax Evaders Act to the effect that “the instant sales contract was entered into a false contract for the purpose of evading disposition on default.” However, the Defendant and SS received a decision of non-guilty on the ground that it was a true transaction rather than a false contract.

3. Conclusion

As the Defendant is recognized as a bona fide beneficiary in relation to the instant sales contract, the Plaintiff’s claim is without merit, without examining the remaining issues, such as whether a tax notice is served, whether a preserved claim is established, and whether a SS seeks to commit an intentional act.