Revocation of Fraudulent Act

The sales contract of this case shall be revoked as a fraudulent act prejudicial to the general creditors of BB, and as long as the sales contract of this case is revoked, the defendant is obligated to implement the procedure for registration of cancellation of ownership transfer registration of this case to BB.

Article 30 of the National Tax Collection Act, Article 406 of the Civil Act

Daejeon District Court Decision 2018-Kadan-106254 Revocation of Fraudulent Act

Korea

AA

o October 11, 2018

November 01, 201

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

(a) cancel the sales contract concluded on May 19, 2016 between the Defendant and BB; and

B. The Defendant shall comply with BB with the procedure for the cancellation of ownership transfer registration that was completed on May 20, 2016 by the receipt No. 32729,* district court** branch court* registry office*.

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. The Plaintiff notified BB of the total amount of KRW 165,509,710 (on November 30, 2015, when the tax liability was established) of capital gains tax as follows, and BB of the amount in arrears, including additional dues of KRW 50,648,440, as of May 3, 2018, is KRW 216,158,150.

B. On May 19, 2016, BB entered into a sales contract with the Defendant, a fraud, for the purchase price of KRW 150 million with respect to the real estate listed in the separate sheet owned by BB (hereinafter “instant sales contract”). On the same day, the Defendant paid the down payment of KRW 30 million to BB, and BB on May 20, 2016 ** district court** branch court* registry* registration office (hereinafter “instant transfer registration”) as of May 20, 2016.

C. BB did not have any particular active property except for the real estate listed in the attached list. At the time of the instant sales contract, the loan amounting to KRW 30 million on February 10, 2004, and KRW 120 million on May 12, 2014, the loan amounting to KRW 150 million on May 12, 2014 was in excess of the obligation.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 and 3, the purport of the whole pleadings

2. Determination

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

(i) A preserved claim;

According to the above facts, the Plaintiff’s taxation claim against BB after the date when the above tax liability was established, and as long as the transfer income tax claim is recognized as preserved bond, the amount of such claim shall be included in the additional charges incurred after the fraudulent act. Thus, the Plaintiff’s claim of KRW 216,158,150 for the principal and additional charges of the transfer income tax against BB is a preserved claim against the instant sales contract.

(ii)the intent to commit fraudulent acts and to commit fraud;

Unless there exist special circumstances, it is easy for a debtor to sell and consume real estate, which is the only property, to change the money to a money easily for consumption. The intent of a debtor's deception, which is the subjective element of a fraudulent act, refers to recognizing that there is a shortage of joint collateral for claims. It does not require any intent to harm or intent to harm creditors. If the debtor sells real estate, which is the only property, and alters it into money easily for consumption, it is presumed that the debtor's intent of deception is presumed (see, e.g., Supreme Court Decision 96Da2606, 2613, May 9, 197).

As seen earlier, the fact that BB at the time of the instant sales contract was in excess of the obligation, other than the real estate listed in the separate sheet, and the fact that BB entered into the instant sales contract with the Defendant in excess of the obligation, thereby making it easier for BB to sell and consume the real estate listed in the separate sheet constitutes a fraudulent act, barring any special circumstance, and the intent of BB BB to commit a fraudulent act is presumed.

The Defendant asserts to the effect that the instant sales contract does not constitute a fraudulent act because the value of real estate listed in the separate sheet has decreased and the real value of real estate listed in the separate sheet does not correspond to a fraudulent act because it has no value as joint collateral for the general creditors. However, in light of the amount of loan obligations owed by the Defendant to the Gyeyang Saemaul Depository, which was the mortgagee at the time of the instant sales contract, and the amount of appraisal of real estate listed in the separate sheet exceeds KRW 201,960,00 (Evidence (Evidence 3) at the time of the registration of the establishment of the neighboring mortgage, the amount of appraisal of real estate listed in the separate sheet exceeds KRW 150,000,000,000,000 won, which is the secured debt amount of the right to collateral, the Defendant’s assertion is not accepted (this is not accepted as it constitutes an abuse of rights as it constitutes the exercise

3) Beneficiary’s good faith

Although the Defendant asserted that he was unaware of BB’s delinquency in capital gains tax at the time of the instant sales contract, and argued to the effect that the instant sales contract was not aware of the fraudulent act, the beneficiary was presumed to be malicious in a fraudulent act revocation lawsuit, and thus, the beneficiary is responsible for proving his good faith in order to be exempted from his liability. In this case, whether the beneficiary was bona fide or not shall be determined reasonably in light of logical and empirical rules, comprehensively taking into account the following: (a) the relationship between the debtor and the beneficiary; (b) the process or motive leading up to the act of disposal between the debtor and the beneficiary; (c) whether there are no special circumstances to doubt that the terms and conditions of the act of disposal were normal and reasonable transaction; and (d) whether there are objective materials to support the act of disposal; and (e) the circumstances after the act of disposal, etc., the Defendant’s assertion that the entire arguments in the statement in the evidence No. 4 were insufficient to acknowledge the transfer registration as a beneficiary; and (b) the Defendant’s assertion to the effect that it was not accepted.

(b) Revocation of fraudulent act and reinstatement;

Ultimately, the instant sales contract shall be revoked as a fraudulent act prejudicial to the general creditors of BB, and as long as the instant sales contract is revoked, the Defendant is obliged to implement the procedure for registration of cancellation of ownership transfer registration of this case to BB.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and it is so decided as per Disposition.