Seoul High Court 2012Na14113 ( December 06, 2012)

Trust for the purpose of continuing the business by financing funds shall not be deemed a fraudulent act.

The purpose of the instant trust is to continue its business by financing funds, and the State also has a possibility to satisfy the tax claims through the enforcement of the trust beneficiary's right to benefit in trust by the truster, so there is no new obstacle to enforcement due to the trust.

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

2013Da5145 Revocation, etc. of Fraudulent Act

Korea

AA Securities Corporation

Intervenor joining the Defendant

1. BB engineering corporation;

2. CCC comprehensive financial securities company;

3. Dangerous Savings Bank Inc.;

4. E-Saving Bank;

5. F Savings Bank Inc.;

6. GG Savings Bank Inc.;

Seoul High Court Decision 2012Na14113 Decided December 6, 2012

June 12, 2014

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff, including the part arising from the supplementary participation.

The grounds of appeal are examined.

Unless there exist special circumstances, an obligor’s act of offering real estate owned by him/her to a certain person among creditors is deemed a fraudulent act in relation to other creditors, barring any special circumstances. However, barring any special circumstance, barring any special circumstance, an obligor’s act of creation of security interest does not constitute a fraudulent act if it is inevitable to provide a specific creditor with real estate as security and obtain additional loans for new funds from a certain creditor in order to lend funds in a situation in which the continuation of business is difficult due to financial difficulties, and barring any special circumstance, barring any special circumstance, the obligor’s act of creation of security interest does not constitute a fraudulent act. This legal principle likewise applies to a case where the obligor executes a real estate trust contract instead of the creation of security interest and executes the registration of transfer of ownership due to a trust. Determination of the existence of such method of trust should be made with the objective of comprehensively taking into account the following circumstances: (i) the obligation and obligation at the time of the trust contract as well as the background and economic meaning of the trust and the source of funds provided through the trust (see, e.g., Supreme Court Decisions 20015Da38484, Dec.

"The court below, based on the facts and circumstances as stated in its decision, found that the trust contract of this case and the pledge contract on the right to benefit based on the trust contract of this case are subordinate to the previous loan claim of this case and it is difficult to recognize that the trust contract of this case and the pledge contract of this case were a fraudulent act because the defendant intervenor BB engineering corporation (hereinafter referred to as "B") continued to perform the business with the aim of repaying the previous loan obligation and continuing to pay the debt of this case, and it cannot be deemed that there was a substantial decrease in BB's responsible property or repayment ability, and it is difficult to view that BB's creditors have returned to the defendant, etc. as the trustee and the secured party. It is difficult to view that the creditors still have the possibility to satisfy their claims through the execution of the real estate of this case to be returned at the time of termination of the trust contract of this case and the trust contract of this case, and that most of the plaintiff's tax claims of this case did not have a new obstacle to its execution." In light of the above legal principles and records, this judgment is justified.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party, including the part arising from the participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices.