The transfer of shares, etc., which are the basis for the occurrence of the right to taxation, has already been made before the gift contract.

The Plaintiff’s notice of payment of each tax claim was issued after the date of entering into a gift contract with the obligor, but the transfer of shares, etc., which served as the basis for each tax claim, had already been made before the gift contract. Accordingly, each of the Plaintiff’s taxation claims constitutes a fraudulent act that can be lawful

2011. Revocation of fraudulent act

Korea

SAA

April 19, 2012

May 17, 2012

1. Revocation of a donation agreement concluded on April 24, 2008 between Defendant and KimCC.

2. The defendant shall pay to the plaintiff 00 won and 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of complete payment.

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

The same shall apply to the order.

1. Basic facts

A. On June 2007, KimCC, the representative director of the BBB BBS Co., Ltd. (hereinafter referred to as the “BBBS”), at the time, did not file a tax return on the transfer of the above stocks even though he had sold 12,000 shares of the BBS stocks at the time to DBD Co., Ltd. (hereinafter referred to as the “DD”) to the DBS Co., Ltd. (hereinafter referred to as the “BBS”) and had been paid all the above sales proceeds from DDC, and the Plaintiff did not file a tax return on the transfer of the above stocks at around 1, 2009 on the basis of the Income Tax Act, Inheritance Tax and Gift Tax Act, etc. (the gift tax was imposed after the imposition of gift tax, and the gift tax was reduced to KRW 000,000,000, and the Plaintiff did not file a separate tax return on each of the above global income tax claims at around 2005 (hereinafter referred to as the “CCC”).

B. From June 25, 2007 to July 24, 2007, KimCC received a total of 000 won of the transfer price of BBS stocks from DDR from the above DDR, and lent to JE the total amount of KRW 000 on June 27, 2007, and KRW 00 on July 13, 2007, respectively, and at the same time, the remainder of KRW 00 was deposited into BBBS which it served as the representative director around that time.

C. On the other hand, on April 24, 2008, the defendant, which is the mother of the KimCC, purchased from the FF Co., Ltd. FF Co., Ltd. FF Co., Ltd. to KRW 000, FFF lending 201 (hereinafter "the building in this case") in Gangnam-gu Seoul, Seoul, and in the process, KimCC paid KRW 000 on April 24, 2008, and KRW 000 on May 21, 2008, and KRW 00 on May 22, 2008, to the account of FFFF FF Co., Ltd. (hereinafter "the donation in this case"), and the defendant paid KRW 00,000, excluding the amount deposited by KimCC as above, out of the above sales amount, to the FFFF Co., Ltd.

[Ground of Recognition] Facts without dispute, and the purport of Gap evidence 1 through 6 (including branch numbers in case of additional number), as a whole, and the purport of the whole pleadings

2. The defendant's assertion

A. The KimCC merely bears part of the housing funds of the building of this case to ensure the old age of the defendant, who is the mother, and the defendant was unaware of the developments leading up to the creation of the money of KimCC, the debtor at the time of the purchase of the building or whether the plaintiff was delinquent, and thus the plaintiff's right of revocation against the defendant is unreasonable.

B. Even if the exercise of the obligee’s right of revocation against the Defendant is lawful, the Plaintiff seized the instant building based on the gift tax claim against the Defendant due to the instant donation, and thereafter received dividends equivalent to the above gift tax amount through the public auction procedure, and as a result, the amount that the Plaintiff already received through the public auction of the said building should be deducted from the amount of equivalent compensation that the Defendant shall pay to the Plaintiff.

3. Determination

A. Formation of preserved claims

In principle, claims that can be protected by obligee's right of revocation may be protected. However, it is highly probable that there has already been legal relations that would be the basis of establishing claims at the time of fraudulent act in the future, and that claims should be established by realizing them in the near future, and claims may also be preserved claims (see, e.g., Supreme Court Decision 2011Da76426, Feb. 23, 2012). Although the Plaintiff's notice of payment of each tax claim in this case was issued on April 24, 2008, which is the obligor KimCC's conclusion of the gift contract in this case, the Plaintiff's payment notice of each tax claim in this case was made on April 24, 2008 (GCC's payment was made on several occasions before May 21 and 22 of the same year, but it was also reasonable to view that each of the above contracts was made between the Defendant and the FCC's initial payment of the purchase claim in this case.

(b) The occurrence of obligee's right of revocation;

The facts that KimCC Co., Ltd. paid its own property to the Defendant through the donation contract of this case as above, and the Plaintiff could reasonably cancel the above donation contract as a fraudulent act between KimCC and the Defendant, i.e., the debtor's insolvency should be presumed, and the remaining 00 won out of the transfer price of 20 U.S. stocks owned by KimCC was 00,000, and the remaining 00 U.S. bonds were 1 and 50 U.S. bonds were 1 and 8 U.S. bonds were 0 U.S. bonds were 1 and 00 U.S. bonds were 1 and 00 U.S. bonds were 1 and 30 U.S. bonds were 1 and 30 U.S. bonds were 1 and 10 U.S. bonds were 0 U.C. bonds were 1 and 20 U.S. bonds were 1 and 30 U.S. bonds were 20 U.S. bonds were ever cancelled. bonds.

(c) Bad faith of beneficiaries;

As above, if the gift of this case against the defendant of KimCC, a debtor, objectively constitutes a fraudulent act, the defendant's bad faith is presumed (see, e.g., Supreme Court Decision 2006Da5710, Apr. 14, 2006). The defendant's assertion to the effect that there is no evidence supporting the defendant's argument, such as the defendant's failure to know about the process of raising the funds of KimCC, the defendant at the time of the donation, or about whether the donation was paid in person, and that the donation of this case was not known that it constitutes a fraudulent act, is without merit.

D. Scope of compensation for value

In full view of the statements and arguments in Gap evidence Nos. 9 and Eul evidence Nos. 1 through 3 (including numbers), and the plaintiff imposed and notified gift tax of KRW 000 on September 29, 2010 to the defendant on the ground of the gift in this case, and on March 16, 201 and March 21 of the same year, the building purchased by the defendant as the preserved right, seized the above gift tax claim, etc. as the preserved right, and on November 29, 201, 100, 00 won was paid as gift tax claim in the public sale procedure for the building in this case. On the premise that the gift in this case is valid for the plaintiff, the defendant can be deemed to have paid the above dividend amount to the plaintiff as the performance of the obligation to pay gift tax, but the defendant's assertion that the above dividend amount was revoked for the reason that the above contract was revoked, separate from the previous return of the dividend amount in this case, the plaintiff's assertion that the plaintiff had already formed a set-off claim against the plaintiff in this case.

E. Sub-committee

Therefore, the instant donation contract concluded on April 24, 2008 between the defendant and KimCC is revoked as a fraudulent act, and the defendant is obligated to pay to the plaintiff damages for delay at the rate of 5% per annum under the Civil Act from the day following the day when the judgment of this case is finalized to the day when full payment is complete.

4. Conclusion

Then, each claim of the plaintiff in this case is justified and it is so decided as per Disposition.