Where real estate on which a mortgage is established is transferred to a fraudulent act, the method of restitution.

It shall be deemed that only within the extent of the balance obtained by deducting the amount of secured claim from the value of real estate. As such, if the registration of creation of mortgage is cancelled by subsequent repayment, etc. after fraudulent act, it is only possible to seek compensation for the value of the real estate. The calculation of the value is based on the conclusion

Article 31 of the National Tax Collection Act

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The contract of donation entered into between the defendant and the non-party ○ on November 25, 2005 with respect to real estate stated in the attached list shall be revoked within the limit of KRW 315,00,000. The defendant shall pay to the plaintiff 315,00,000 with 20% interest per annum from the day following the day this decision became final and conclusive to the day of full payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

1.Recognition

The following facts do not conflict between the parties, or can be acknowledged by taking into account the whole purport of the pleadings in each entry of Gap evidence 1-2, evidence 1-2, evidence 2-1-2, evidence 3-1 through 9, evidence 4-1 through 3, evidence 5-9, evidence 10-1 through 3, and evidence 11.

A. During the period from February 14, 2005 to March 31, 2005, the superintendent of the tax office under the Plaintiff-affiliated tax office conducted a tax investigation on ○○○ M Co., Ltd. (hereinafter “Nonindicted Company”) under the suspicion of disguised processing transaction. On June 2005, the first police officer notified the non-party company of each decision of correction on corporate tax and value-added tax in 2002, corporate tax in 2004, corporate tax in 2004, corporate tax in 205, and value-added tax in 2005

B. However, on April 2006, the non-party company did not pay the above taxes and there is no property of the non-party company to be used for the above taxes and additional dues, and the director of the tax office is the representative director of the non-party company and the oligopolistic shareholder designated the non-party company as the second taxpayer under Article 39 of the Framework Act on National Taxes and notified the non-party company of the payment of the aggregate amount of the tax unpaid by the non-party company. At that time, the above notification reached a different ○, and accordingly, the corporate tax and the value-added tax (including each additional charge; hereinafter referred to as the "tax of this case") to be paid by the non-party company is KRW 919,575,650

C. Meanwhile, the defendant, who is the mother on November 25, 2005, donated the real estate (hereinafter referred to as the "real estate of this case") in the attached list owned by him to the defendant as the mother on the same day (hereinafter referred to as the "the gift contract of this case"), and the defendant completed the registration of ownership transfer concerning the real estate of this case on the same day. At the time, Lee Jong-soo had no other property than the real estate of this case.

D. However, as of September 23, 2004, the establishment registration of a mortgage, which was completed on the instant real estate as of September 23, 2004, was cancelled on the ground of termination on the same day after the donation contract of this case, and the market price of the instant real estate was KRW 575,000,000 as of September 11, 2006.

2. Determination

(a) the existence of preserved rights;

Although 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 in principle, it is highly probable that at the time of the fraudulent act, there has already been legal relations that form the basis of the nature of the claim, and that the claim should be established in the near future, because the probability is realized in the near future, and the claim can also become a preserved claim of the obligee's right of revocation in the near future.

In addition, the second liability for tax payment is established and confirmed separately from the main liability for tax payment, and it is abstractly established by the occurrence of legal requirements such as the shortage of collection amount to the main taxpayer, and according to the notice of payment stipulated in Article 12 of the National Tax Ministry five (see Supreme Court Decision 89Meu24872, Dec. 26, 190). It is determined specifically by notifying the second taxpayer (see Supreme Court Decision 89Meu24872, Dec. 26, 1990). On April 206, 2006, the Plaintiff issued the notice of payment as the second taxpayer of the corporate tax and value-added tax before the non-party company as the second taxpayer of the corporate tax and value-added tax, and the above notice reached the second taxpayer. Thus, at the time of the donation contract of this case, it cannot be said that the tax claim of this case against the non-party company of this case was determined specifically at the time of this case's taxation period or statutory due date of this case's donation contract of this case.

B. Establishment of fraudulent act

As seen earlier, it is reasonable to deem that the second taxpayer at the time of the instant donation contract was highly probable to be liable for the tax liability of this case, while the Lee Jong-sung, who had no property other than the instant real estate, donated the instant real estate to the Defendant and caused the lack of joint security of general creditors including the Plaintiff, and thus, the instant donation contract constitutes a fraudulent act, barring special circumstances. In light of the fact that, as the representative director of the non-party company, the non-party company was aware of the imposition of the above corporate tax and value-added tax on the non-party company, and that, at the time of the instant donation contract, it could have been sufficiently anticipated that the non-party company had no property at the time of the instant donation contract, the non-party company would be liable for the payment of the instant tax, and that the non-party company would have known that the non-party company would have harmed other creditors including the Plaintiff, etc. due to the instant donation contract

(c) Methods of reinstatement and scope of cancellation;

In a case where an immovable property on which a mortgage is established is transferred to a fraudulent act, such fraudulent act shall be established only within the extent of the balance obtained by deducting the secured debt amount from the value of the immovable property. Therefore, in a case where the registration of creation of a mortgage is cancelled by repayment, etc. after a fraudulent act, it is only possible to seek compensation for the value of such real estate, and the calculation of

After the Defendant acquired ownership of the instant real estate, the fact that the mortgage was cancelled with the maximum claim amount of KRW 260,00,000,000 which was established on the instant real estate and the fact that the time of the instant real estate was as of September 11, 2006 that the market price of the said real estate was equivalent to the above trial price even before the date of closing argument. As such, the gift contract of this case is ultimately presumed to be equivalent to the above trial price until before the date of closing argument of this case. Thus, the gift contract of this case is eventually cancelled and recovered within the scope of 315,00,000,000 (the Plaintiff is seeking cancellation and restitution within the scope of deducting the entire maximum claim amount, not the actual secured claim amount, from the maximum claim amount of the instant real estate, within the scope of KRW 315,00,000,000,000 which was established on the instant real estate. Since the Defendant did not apply the annual interest rate of KRW 575,000,00,000,0,000.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is just in conclusion, the defendant's appeal disputing this conclusion is dismissed as it is without merit. It is so decided as per Disposition.