Bupyeong-Support2010 Gohap4881 ( June 2, 2011)

Cash donation contract is a fraudulent act that reduces liability property.

Unless there are special circumstances in view of the fact that it is insolvent from the date of the cash donation contract to the date, each cash donation contract is a fraudulent act as an act of reducing the obligor's property for joint collateral against creditors, and it is recognized that the delinquent taxpayer was aware that it could prejudice the plaintiff, who is the obligee by the above act of disposal, and the defendant's bad faith is presumed

Article 30 of the National Tax Collection Act

2011Na50235 Revocation, etc. of Fraudulent Act

Korea

xAA

February 17, 2012

March 30, 2012

1. Revocation of a judgment of the first instance;

2. On March 6, 2007, between the defendant and LeeB, the cash donation contract of ○○○○○○○○○ signed on March 6, 2007 and the cash donation contract of ○○○○○○○○○○○○○○○○○ signed on March 7,

3. The Defendant shall pay to the Plaintiff ○○○○○ and the Plaintiff 5% interest per annum from the day following the day when the judgment of this case became final and conclusive to the day of complete payment.

4. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

"B" around November 2, 1994, 200-0, 000 OB apartment 00, 000 (hereinafter referred to as "O apartment 2") was acquired from the above AOB bank, but the above AB bank was sold to 00,000 won on February 23, 2007, and then the registration of ownership transfer was completed on the 27th day of the same month."B received 200 OB bank 20,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000,00,000,000,00,000,00,000,00,00,00,00.

E. On March 6, 2007, the Defendant paid ○○○○, a part of the money deposited in the Defendant’s Second Account of AA Bank, to OF, an OO 0000 USO 000 O00 204, Seoul, and used it as part of the Defendant’s deposit money. The Defendant transferred the remainder of ○○○○ to the Defendant’s account of ISO Savings Bank, and used it as the purchase price of real estate in the Philippines located in the Defendant.

F. Meanwhile, in relation to the transfer of the instant O apartment and OO apartment, this BB did not report the transfer income tax. On June 26, 2008, the director of the tax office under the Plaintiff-affiliated tax office decided and notified this BB of the total amount of the transfer income tax ○○○○○○ as shown in the following table, and as of July 15, 2010, the failure of the BB to pay it, thereby becoming the total amount of ○○○○○.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, Eul evidence 2 and 3 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

In the event that it is anticipated that the transfer income tax will be imposed on the sale of the instant O apartment and OO apartment, this case’s O apartment and OO apartment in collusion with the Defendant, who is well aware of these circumstances, deposited or transferred the sales proceeds of the instant O apartment and OO apartment to the Defendant account, and the Defendant used the sales proceeds of the instant O apartment and OO apartment as the Defendant’s deposit or real estate purchase proceeds. At the time when the Defendant used the sales proceeds of deposits or transfers from B as the Defendant’s deposit or real estate purchase proceeds, this case’s contract was concluded between B and the Defendant, which is a fraudulent act, at the time of using the Defendant’s deposit or real estate purchase proceeds, and thus, the Defendant seeks the payment of ○

B. Defendant’s assertion

1) The act of cash donation to the Defendant B was established at the time of deposit or transfer of the purchase price of the instant apartment and OO apartment to the Defendant’s account. The Plaintiff became aware of the insolvent of the BB at the latest around July 2008, and the Plaintiff was at the latest at the latest at the time of March 4, 2009 or at the latest at the time of July 19, 2010, known that the said act of cash donation to the Defendant B constituted a fraudulent act, even though it was known that the said act of cash donation to the Defendant was committed against the Defendant at the time of July 19, 2010, one year after the filing of the instant lawsuit, and thus, the instant lawsuit was filed with the exclusion period.

2) On or around November 2, 1994 and September 17, 1998, the Defendant: (a) assumed a significant portion of the acquisition fund of the instant main apartment and OO apartment; (b) held title trust of 1/4 of the instant O apartment and OO apartment; (c) lent ○○○○○ upon deposit to this B to the national bank account of thisG during the period from January 1, 1994 to September 20, 207; and (d) lent ○○○○, which was the sum of the funds deposited by this B to the Defendant’s national bank account from January 1, 1994 to August 13, 2010 to the Defendant’s national bank account; and (d) paid the Defendant’s salary paid by III to the Defendant; and (e) paid the Defendant’s payment to ○○ apartment and the remainder of the money deposited by this case to the Defendant’s ○ apartment and the Defendant’s sales to the Defendant’s ○○ apartment and the Defendant’s sales to the remainder of this case.

3. Determination on this safety defense

A. Date of the establishment of the fraudulent act;

In light of the fact that BB made payment or transfer of money deposited or transferred to the Defendant account on February 23, 2007, 25, and 27th of the same month, it is difficult to view that the legal act of donation was established between B and the Defendant at that time solely on the ground that B and the Defendant made payment or transfer of money to the Defendant account on February 23, 2007, and on the 27th of the same month, and that B and the Defendant could not exclude the possibility of deposit or transfer of money to the Defendant account due to reasons other than the donation, as the husband and wife, and the Defendant asserted the reasons other than payment or transfer of money to the Defendant account due to the deposit or transfer of money to the Defendant account, it is reasonable to view that B and the Defendant had made payment or transfer of money to the Defendant account on February 23, 2007, 25, and 27th of the same month as at the time the purchase price was established between B and the Defendant’s payment or transfer from the Defendant’s deposit to the Defendant’s account.

(b) Whether the exclusion period has expired;

1) The obligee’s claim for revocation and restitution must be filed within one year from the date when the obligee becomes aware of the cause for revocation (Article 406(2) of the Civil Act). In the exercise of obligee’s right of revocation, “the date when the obligee becomes aware of the cause for revocation” refers to the date when the obligee becomes aware of the fact that the obligor had committed a fraudulent act while knowing that the obligee would prejudice the obligee. This is insufficient merely to recognize the fact that the obligor performed a disposal act of the property, and further, to know the existence of a specific fraudulent act and to know the fact that the obligor had an intent to injure the obligor (see, e.g., Supreme Court Decisions 2001Da1239, Nov. 26, 2002; 2007Da63102, Mar. 26, 2009).

2) Comprehensively taking account of the following facts: (a) the Plaintiff was aware of the fact that 200,000,000,000,000 2,000,000,000,000,000 2,000,000,000,000 2,000,000,000,000,000 2,000,000,000,000,000 2,000,000,000,000,000,000,000,000 2,00,000,000,00,000,000,00,000,00,00,000,00,000,000,00,000,00,00,00,00,00,00,00.

C. Sub-committee

Therefore, the defendant's defense on the ground that the plaintiff was aware of the existence of a specific fraudulent act before July 19, 2010, which was the date of filing the lawsuit in this case, from March 4, 2009 to July 19, 201, and was aware of the fact that the plaintiff had an intention to know about the existence of a specific fraudulent act, and that he had an intention to know to thisB, is without merit

4. Judgment on the merits

A. Whether the fraudulent act was established

According to each of the above facts, it can be confirmed that the money deposited in the account under the name of the defendant was donated to the defendant on March 6, 2007 and March 7, 2007, respectively, by cash ○○○ and ○○○○○, respectively. Each of the above statements in the evidence Nos. 6 through 28, 31 through 37, which shows that the defendant's assertion of title trust and the letter of loan repayment are consistent with each of the above statements, is insufficient to follow up the above ratification. The above ratification is insufficient, and as of March 6, 2007 and March 7, 2007, which is the date of each of the above cash donation contracts, and as of February 17, 2012, which is the date of the closing of the trial at the trial, there is no dispute between the parties that this is insolvent except each of the above money. Therefore, each of the above cash donation contracts is an act of reducing joint collateral property for creditors, and thus, it can be presumed that each of the plaintiff B, the beneficiary.

B. Sub-committee

Therefore, the contract of cash donation between the defendant and the LeeB on March 6, 2007 and the contract of cash donation between ○○○○○○○○○○○○○○○○○○ on March 7, 2007 should be revoked as a fraudulent act. As a result, the defendant is obliged to pay the plaintiff damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day following the day when the judgment of this case became final and conclusive to the day of full payment.

5. Conclusion

Therefore, the judgment of the court of first instance, which has different conclusions, is unfair since the plaintiff's claim of this case will be accepted on the grounds of its reasoning, is revoked, and the above recognition of cash donation contract is revoked, and it is so decided as per Disposition by ordering the defendant to pay the above recognition money.