Suwon District Court Sungnam Branch-2016-Gohap-20437 ( October 20, 2019)

It constitutes a fraudulent act that a delinquent has transferred to the wife a claim for the return of lease deposit in excess of his/her obligation.

(1) The transfer by a delinquent to the wife of a claim for the return of lease deposit in excess of his/her obligation constitutes a fraudulent act against the general creditors of a delinquent taxpayer including Korea.

Article 30 of the National Tax Collection Act: Revocation and Restoration of Fraudulent Act

§ 406. Revocation of Civil Code

2019Na14321 Revocation of Fraudulent Act

Korea

AA

Suwon District Court Decision 2016Gahap204437 Decided June 20, 2019

September 19, 2019

October 17, 2019

1. The defendant's appeal is dismissed.

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

The transfer contract concluded on November 4, 2015 with respect to the right to lease stated in the attached Form between the Defendant and BB shall be revoked. The Defendant shall pay to the Plaintiff 5% interest per annum from the day following the day this decision became final and conclusive to the day of full payment.

Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Quotation of judgment of the first instance;

The reasoning of this Court concerning this case is as stated in the reasoning of the judgment of the court of first instance, in addition to the submission or addition of the judgment of the court of first instance as follows, and thus, this case is quoted as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act (In accordance with the evidence duly adopted and investigated by the court of first instance, the fact-finding and judgment of the court of first instance are justifiable, and there are no

○○ Decision No. 15, No. 2, 4, 16, ' October 12, 2015', respectively, shall be put into practice on October 1, 2015, respectively (A evidence No. 13, No. 3-1, 2).

○ The third-party 15 to 21 of the judgment of the first instance court shall be followed as follows.

“A fraudulent act” means an act detrimental to a creditor by causing excessive state of debt or deepening the fact that the debtor has already been in excess of debt by reducing active property or increasing negative property (see, e.g., Supreme Court Decision 2000Da7783, Oct. 25, 2002). As examined in the above basic facts, BB, as seen in the above basic facts, was in excess of debt upon being notified of the disposition of increasing capital gains tax in 200,000,000 from the Plaintiff on October 1, 2015, and became in excess of debt (No. 4), and it further deepens the excess of debt by concluding the instant contract with the Defendant, who is the spouse, to transfer the lease deposit repayment claim amounting to KRW 00,000,000, which was owned by BB, without compensation, to the Defendant, who is the spouse. Therefore, it is reasonable to deem BB, as one of its general creditors, such as the Plaintiff, etc. entered into the instant contract.

In addition, in a lawsuit seeking revocation of a fraudulent act, the beneficiary’s bad faith is presumed (see Supreme Court Decision 2016Da272311, Apr. 10, 2018). Thus, barring special circumstances, it is reasonable to deem that the Defendant, a spouse and beneficiary who share the same livelihood with BB, was a fraudulent act against the general creditors of BB, and concluded the instant contract with BB.

○ The following parts are added to only the statement of No. 4 of the first instance court's decision No. 5.

“The Defendant lent KRW 00,000,000 to BB, and paid the instant lease deposit to the money repaid by BB; or

The following shall be added to the fourth 7th Circuit ruling of the first instance court.

"The lease object was delivered to BB on August 22, 2014 in respect of the real estate lease agreement on the right to lease stated in the attached list. On November 14, 2015, BB requested by the denied defendant, stating that "A certificate 4-1)" is "the right to succeed to the contract (including the right to succeed to the current monthly rent obligation - the right to return the deposit) to the denied defendant" (Article 4-1).

○ The following parts shall be added next to the fourth tenth decision of the first instance.

"Where a debtor's act of disposal of property constitutes a fraudulent act, evidence, etc. that can be objectively and objectively satisfied when recognizing that the beneficiary or subsequent purchaser had acted in good faith at the time of the fraudulent act or the preceding purchase shall not be readily concluded that the beneficiary or subsequent purchaser acted in good faith at the time of the fraudulent act or the preceding purchase (see, e.g., Supreme Court Decision 2014Da237192, Jun. 11, 2015)."

○○ Judgment No. 11 and No. 17 of the 4th and 17th of the first instance court's decision have taken place as "DD for each witness."

○ The following parts shall be added next to the fourth instance judgment of the first instance.

(D) BB, the spouse, was notified on October 10, 2015 of the above disposition of capital gains tax increase or decrease (pre-announcement of taxation as to the above disposition of capital gains tax increase or decrease was given on July 7, 2015), and the Defendant subsequently received the right to lease on the attached list from BB on November 14, 2015 without any specific circumstance.

2. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.