It constitutes a fraudulent act to transfer the only real estate between the couple including a tax obligor without compensation, unless there are special circumstances.

The debtor's act of transferring real estate which is his sole property to another person without compensation is presumed to be a fraudulent act against the creditor unless there are special circumstances.

§ 406. Revocation of Civil Code

2016 Gohap5353 Revocation of Fraudulent Act

Korea

AA

November 16, 2016

December 7, 2016

1. As to real estate listed in the separate sheet:

A. The contract of gift concluded on October 26, 2015 between the Defendant and BB is revoked.

B. On October 28, 2015, the Defendant shall implement the procedure for registration of cancellation of ownership transfer registration, which was completed by the receipt No. 00000 on October 28, 2015, to BB.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. On November 14, 2014, 200, 00, 00-0, 1/2 of each of the 000-00 land, eE, FF (975-7), GG, and HH (975-20) were transferred to E, GG, and reported and paid capital gains tax on December 31, 201 of the same year. However, the J Director of the J Tax Office confirmed that the acquisition value among the details of the BB’s return was less calculated, and confirmed on October 6, 2015, the payment period was 268,810,120 won was 268,810,120 won as of October 31, 2015, BB paid only KRW 80,000,000 from December 11, 2015 to June 30, 2016.

B. Meanwhile, on October 26, 2015, after the date of the above correction and notification, BB entered into a contract of donation with the purport of donating the real estate listed in the separate sheet, which is one of its spouse, to the Defendant who is the spouse (hereinafter “instant contract of donation”). On October 28, 2016, BB completed the registration of ownership transfer based on the instant contract of donation with the Seoul District Court DD registry office No. 43754 as of the said real estate as of October 28, 2016.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 4, each entry of No. 6, the purport of the whole pleadings

2. Determination

According to the above facts, it is presumed that the reduction of liability property for the general creditors is a fraudulent act detrimental to the creditors by concluding the gift contract in case where BB bears the Plaintiff’s obligation for capital gains tax and disposing of the real estate listed in the separate sheet, which is one of its sole real estate, constitutes a fraudulent act detrimental to the creditors, and in this case, the Defendant’s bad faith as the beneficiary is presumed. Therefore, the gift contract in this case between BB and the Defendant is revoked as a fraudulent act, and accordingly, the Defendant must implement the procedure for cancelling

In light of the fact that BB planned not to pay the transfer income tax, the Defendant: (a) donated the real estate listed in the separate sheet before transferring the said 00 cc real estate; and (b) paid the transfer income tax after the above correction and notification, it cannot be said that BB had any intention to know; and (c) the Defendant is a bona fide beneficiary who entered into the instant donation contract by lawful means. However, barring any special circumstance, the obligor’s act of transferring the real estate, which is its own own property, to another person without compensation, constitutes a fraudulent act against the obligee; (d) the obligor’s intention to know is presumed (see Supreme Court Decision 2000Da41875, Apr. 24, 2001) and the Defendant’s assertion alone does not reverse the recognition of the intention to deliberate on the BBB’s will. Moreover, considering the fact that the Defendant and BB were married couple’s death, the Defendant’s assertion that the Defendant, a beneficiary, alone, cannot be accepted.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.