Suwon District Court Ansan Branch-2013-Gab-109250 (O2. 2014.09.02)

Act of transferring the ownership of the instant real property to BB constitutes a fraudulent act.

The act of completing the registration of ownership transfer to the Defendant on the instant real estate becomes a fraudulent act in relation to the general creditors including the Plaintiff, and BB was aware that the lack of joint security due to the instant donation would be prejudicial to other creditors, and thus, the Defendant’s bad faith is presumed to be a beneficiary.

Article 108 of the Civil Act (Fictitious Declaration of Intention)

2014Na3518 Revocation of Fraudulent Act

Korea

AA

Suwon District Court Decision 2013Kadan109250 decided September 2, 2014

oly 2015.14

oly 2015.18

1. Revocation of a judgment of the first instance;

2. (a) BB between the Defendant and the BB on October 11, 2013 pertaining to 1/2 of the equity interest of 00 :00 :00 00 :00 00 dong 1080 dong 1501.

B. The Defendant: 00 district court 00 branch court 00 registry office 2013 regarding the above real estate to the Plaintiff.

11.1. The procedures for registration of cancellation of transfer of ownership made under No. 000 will be fulfilled.

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

The same shall apply to the order.

1. Basic facts

A. Imposition of gift tax on BB by the Plaintiff

1) The Plaintiff’s shares in CCC during the period from July 16, 2013 to October 14, 2013

Companies (hereinafter referred to as "CCC") and DD Co., Ltd. (hereinafter referred to as "DD").

C) A corporate integration investigation was conducted, and in the process FF as the representative director of the company, FF.

The fact that the CCC shares 17,226 shares and DD shares were held in title trust to BB, who is its employee.

2) On October 16, 2013, the Plaintiff: (a) applied the provision on deemed donation of title trust property (Article 45-2 of the Inheritance Tax and Gift Tax Act) to the BB, a title trustee, the due date for payment on November 15, 2013; and (b) imposed gift tax of KRW 000,000,000,000,000, and KRW 000,000,000 (hereinafter “instant tax claim”).

(b) Donations by BB;

BB completed the registration of transfer of ownership on June 11, 2010 with the Defendant, who is the spouse, as joint ownership of 1/2 shares each on the ground of sale and purchase as of August 4, 2009. On October 11, 2013, BB completed the registration of transfer of ownership on the entire shares held with respect to the instant real estate on the ground of a donation dated 11, 2013 (hereinafter “the instant donation”).

[Ground of recognition] Facts without dispute, entry of Gap 1 to 3 evidence, purport of the whole pleadings

2. Determination as to the cause of action

(a)the existence of preserved claims;

Although it is required that a claim that can be protected by the obligee’s right of revocation has arisen prior to the commission of an act that could be viewed as a fraudulent act in principle, there exists a legal relationship that has already been based on the establishment of a claim at the time of a fraudulent act, and there is a high probability as to the establishment of a claim based on such legal relationship in the near future. In the near future, where a claim has been created because the probability is realized in the near future, the claim may also become a preserved claim of the obligee’s right of revocation. Such a legal principle applies to a tax claim (see, e.g., Supreme Court Decisions 2000Da37821, Mar. 23, 2001; 2006Da66753, Jun. 29, 2007). The instant tax claim becomes a preserved claim of the obligee’s right of revocation.

(b) The intention to commit fraudulent acts and to injure himself;

As above, if a debt is actually realized in the near future and the debt is established, the debt shall be included in the debtor's small property (see, e.g., Supreme Court Decisions 2000Da30639, Sept. 26, 2000; 2010Da68084, Jan. 13, 201). BBB's act of completing the registration of transfer of ownership to the defendant on the instant real property due to the instant donation while the debt exceeds the debt is a fraudulent act in relation to the general creditors including the plaintiff, barring any special circumstances, and BB is presumed to be detrimental to other creditors due to the shortage of joint security due to the instant donation. Accordingly, the defendant's bad faith is presumed as the beneficiary.

The defendant alleged that the gift of this case does not constitute a fraudulent act, and that it did not know that the plaintiff et al. would harm the creditors. Thus, in order to reverse the "Presumption of Specific Property under Article 830 (1) of the Civil Act", the other spouse bears the price for the real estate in question and prove that the other spouse acquired the real estate in fact. Thus, the presumption of Specific Property under Article 830 (1) of the Civil Act cannot be deemed to have been reversed merely because the other spouse is the source of the purchase fund, and it does not constitute a title trust on the real estate, and it does not mean that the other spouse has reconcepted the presumption of Specific Property under Article 830 (1) of the Civil Act, just because the other spouse was the source of the purchase fund, and it should be determined whether the other spouse bears the price for the real estate in question by taking account of all the circumstances revealed by the relevant evidence, whether it was a title trust or not (see, e.g., Supreme Court Decision 2006Du8068, Sept. 25, 2008).

(c) Revocation of fraudulent act and reinstatement;

Therefore, the instant donation contract between the Defendant and BB is subject to revocation as it constitutes a fraudulent act, and the Defendant is obligated to implement the procedure for cancellation registration of ownership transfer registration of the instant real estate to BB.

3. Conclusion

Thus, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is accepted.

The conclusion is unfair, and it is so revoked and decided as per Disposition.