Acts such as the issuance of promissory notes recognizing a compulsory execution to the specially related persons who intend to escape a taxation claim under the conditions of delinquency in payment, constitute a fraudulent act.

The act of issuing promissory notes to the defendant, who is a person with a special relationship, and preparing and granting a notarial deed to the effect that compulsory execution is accepted under the conditions of delinquency in taxation, becomes subject to revocation of fraudulent act.

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

Seoul Western District Court 2016Kadan21948 Revocation of Fraudulent Act

Korea

AA

March 23, 2018

April 13, 2018

1. On October 8, 2014, at the par value of xx,xx,xx,xx, recipient, place of payment, place of payment, and place of payment, each of the Seoul Special Metropolitan City, the place of payment, and the place of issuance of a promissory note with a payment at the sight of the due date, against the Defendant, shall be revoked within the scope of xx, x, and xxx. 2. The Defendant shall pay to the Plaintiff money at the rate of 5% per annum from the final and conclusive date of this judgment to the date of full payment.

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

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

1. Basic facts

A. As of April 1, 2016, the Plaintiff had 11 corporate tax, xx, x, and xx in the claim of the value-added tax (hereinafter “non-party company”) as of April 1, 2016. (b) On October 8, 2014, the Defendant received from the non-party company the order of seizure and assignment under the Seoul Northern District Court Decision 2014○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, respectively, a promissorysory note that was issued at the time of the payment date, with the issuance of one promissorysory note that was at the face valuex,xx, recipient, Defendant, the place of payment, and the place of payment, and one promissory note that was at the time of the payment date, and received from the non-party company’s third party company’s debt xxx development, the remainder of the payment date.

E. The Defendant lent the name of the representative of D and EE Co., Ltd. to CCC that actually operates Nonparty Company, and the Defendant’s name bank account also managed by CCC.

【Fact that does not have any dispute】

2. The parties' assertion

The Plaintiff asserts that the Defendant’s act of issuing the Promissory Notes and the Notarial Deed in cooperation with CCC, thereby committing a fraudulent act against the Plaintiff’s non-party company’s tax claims, and that the Defendant’s act of issuing promissory Notes only to the non-party company in excess of the debt, and drawing up a notarial deed that accepts compulsory execution constitutes a fraudulent act against other general creditors. Accordingly, the Defendant asserts that the Defendant lent construction funds to the non-party company and issued the Promissory Notes as the collateral.

2. Determination

A. In cases where an obligor in excess of his/her obligation has prepared a notarial deed stating the purport of accepting compulsory execution with respect to the existing obligation in order to have a specific obligee with respect to the obligation in excess of his/her obligation repaid in fact through compulsory execution procedures by receiving an order of seizure and assignment of the obligation held by the obligor, and the obligee has received an order of seizure and assignment of the obligor’s obligation, the agreement between the obligee and the obligor, which caused the preparation of notarial deed, constitutes fraudulent act by impairing the interests of other general creditors (see Supreme Court Decision 2009Da33884, Apr. 29, 201

B. According to the evidence Nos. 1 through 20 of the above, even if the non-party company is the defendant's creditor, the non-party company prepared a notarial deed on the Promissory Notes in excess of the debt amounting to the plaintiff and made it possible for the non-party company to conduct compulsory execution immediately. The non-party company promptly conducted compulsory execution upon issuance of a seizure and assignment order on the bonds of the construction funds at BB at the end of one month from the date when the notarial deed was prepared, and immediately after receiving the full payment from the non-party company, the promissory Notes in this case was issued to the non-party company for the purpose of having the non-party company obtain a preferential repayment.

Therefore, the Defendant’s issuance of the Promissory Notes in this case constitutes a fraudulent act detrimental to the general creditors, such as the Plaintiff, and must be revoked.

C. Where a beneficiary acquires the entire claim by preparing a notarial deed following a fraudulent act repayment contract and obtaining an order of seizure and seizure, the method of restoring the claim acquired by the beneficiary to the debtor should be made by the method of returning the above claim acquired by the beneficiary to the debtor. This would eventually be the form of demanding the debtor to notify the assignment of the claim and the assignment of the claim. If the seized claim is extinguished by means of payment of dividends or repayment, etc. by the beneficiary or subsequent purchaser, the creditor may claim by means of compensation for the value of the money received by the beneficiary or subsequent purchaser as a dividend or repayment (see, e.g., Supreme Court Decision 2002Da42711, Oct. 25, 2002). As seen earlier, the claim subject to seizure becomes extinct within the scope of the claim subject to the whole amount of the above construction loan, which is the full amount, by receiving xxxxxxxx,xxxxxx source, and the plaintiff may seek restitution to the non-party company that is the third party debtor by means of compensation for the value.

3. Conclusion

If so, on October 8, 2014, ○○○ Co., Ltd. issued one promissory note with the face value of xx, xx, xx, xx, recipient, place of payment, place of payment, and place of payment, respectively, at BB of the date of payment, within the scope of xx, xx, xxx, xxx, and the Defendant is obliged to pay to the Plaintiff money at the rate of 5% per annum from the date of confirmation of this decision to the date of full payment. The Plaintiff’s claim in this case is accepted.