Busan District Court (Dong Branch) 2013Kadan206186 (O2, 19, 2014)

An act of selling only real estate to his father in excess of debt constitutes a fraudulent act.

(1) The conclusion of a sales contract for the sole real estate to his father with a high-amount of national tax obligation constitutes a fraudulent act in relation to the general creditors including the tax claimant, unless there are special circumstances, and thus, it is presumed that the debtor and the beneficiary have been malicious. Therefore, it should be revoked as a fraudulent act.

Article 30 of the National Tax Collection Act Revocation

2015Na41480 Revocation of Fraudulent Act

Korea

Park AA

Busan District Court Decision 2014Na41480 Decided May 14, 2015

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The purchase and sale contract of October 0, 2009 between the defendant and ParkB on each real estate listed in the separate sheet between the defendant and ParkB (B)

H. The sales contract of this case shall be revoked. The defendant shall enter the plaintiff in the separate sheet in the separate sheet.

The real estate completed by the 00 district court 00 branch court 000 registry office on October 0, 2009 No. 0000

Procedures for registration of cancellation for registration of ownership transfer (hereinafter referred to as "registration of ownership transfer of this case").

D. D. D.

2. Purport of appeal

The judgment of the first instance is revoked, and all of the plaintiff's claims are dismissed.

1. Facts of recognition;

A. ParkBB, who started business on October 00, 2008 and closed business on October 00, 2009, controlled and operated UCC as an actual owner of the entire stocks of UCC (hereinafter referred to as “YCC”). The director of the tax office00 levied value-added tax on UCC, business income tax, and corporate tax, but did not pay the UCC. The ParkB did not pay taxes and comprehensive income tax imposed on UCC’s tax liability of KRW 0 million as listed below, as the secondary taxpayer of the tax liability of the UCC as to the real estate. (b) The ownership transfer houseB entered into a lease agreement with the Defendant on 00 million won after deducting the ownership transfer deposit from the purchase price of each of the real estate listed in the separate sheet (hereinafter referred to as “the real estate”). The ownership transfer house of this case from KRW 000,000,000,0000,000,0000,000,000,000 won.

2. The establishment of fraudulent act; 2. The establishment of fraudulent act

Tax obligations are naturally established when the taxation requirements stipulated by the Act are satisfied (see, e.g., Supreme Court Decision 2008Da84458, May 14, 2009). According to the above facts, ParkB was in a state where the instant sales contract was concluded as of October 0, 2009, and the Plaintiff’s tax claims against ParkB were all established. It was easy for the obligor to sell and consume real estate, which is the only property, to change the amount of money easily for the use of real estate. In this case, the obligor’s intent to commit a fraudulent act, which is the subjective element of the fraudulent act, to recognize the shortage of the security of claims, is a fraudulent act, and thus, it is presumed that the obligor’s intent is not necessary to impair or desire to commit a fraudulent act, and the obligor’s intention is presumed to be cancelled if it is easier for the obligor to consume real estate with money only (see, e.g., Supreme Court Decision 2008Da8458, Apr. 29, 19999).

3. Judgment on the defendant's assertion

(a) argument that ParkB had no intention to harm;

The Defendant asserts to the effect that the instant real estate sales contract is not for tax evasion in light of the fact that ParkB was used by ParkB to repay the investment amount of KRW 00 million out of the instant real estate sales price received from the Defendant to ParkB for the normal operation of the company run by ParkB.

In full view of the statements in Eul 5 and 9 as well as the results of this court's response to the submission of financial data to 00 banks and the purport of the whole pleadings, it is recognized that Eul remitted KRW 00 million to the UnitedCC on October 0, 2008, and received KRW 00 million from ParkB on October 0, 2009. However, as seen earlier, the act of selling only real estate in excess of debt and changing it into money easily for consumption, barring any special circumstance, is evaluated as an act of insufficient joint security. However, it is thought that the debtor's continuous implementation of business by financing funds in a situation where it is difficult to continue its business due to the financial shortage, and it does not constitute a fraudulent act if it is inevitable to sell real estate and receive new funds additionally. However, it is difficult to view that ParkB did not have the best reasons to secure the ability to perform its business solely on the basis of the above recognition fact that it still did not constitute a fraudulent act.

Therefore, this part of the defendant's argument cannot be accepted.

B. The defendant did not know that he was a fraudulent act

1) Around January 200, the Defendant came to know that ParkB requested sale to the office of 00 licensed real estate agents located in 00,000,000 - and 00 - 00 - 00 - 00,000 - the real estate in this case. The real estate in this case was expected to increase the price so that the Defendant recommended ParkB to purchase the real estate in advance. The Defendant determined that there was a value of investment, and the Defendant took over the deposit amount of 00,000 won, and the Defendant borrowed the deposit amount of 00,000,000 won as security and borrowed the deposit amount of 0,000,000 won from EE, the president of 100,000,000 won, and the broker paid a brokerage fee to the broker, and the Defendant took charge of all million won including the expenses with a certified judicial scrivener, and the Defendant concluded the sales contract in this case with the general creditor.

2) In a lawsuit seeking revocation of a fraudulent act, the beneficiary was unaware of the fact that the beneficiary was a fraudulent act. The beneficiary bears the burden of proof, and in recognizing that the beneficiary was bona fide at the time of the fraudulent act, evidence, etc. should be supported (see, e.g., Supreme Court Decision 2004Da61280, Jul. 4, 2006). The fact that the Defendant paid ParkB the proceeds of the instant real estate to ParkB as the purchase of the instant real estate is as seen earlier. However, the fraudulent act means an act of lacking common creditors’ joint security, and it constitutes a fraudulent act that reduces the common creditor’s joint security, barring any special circumstances as seen earlier, to change the proceeds of sale of the instant real estate in cash. However, the Defendant, as his father, had no possibility that ParkB would reside immediately next to the instant real estate, and that the Defendant would not have sold the instant real estate to the Defendant, i.e., e., the Plaintiff had been aware that ParkB had sold the instant real estate.

3) Therefore, the Defendant’s assertion on this part cannot be accepted.

4. Conclusion

Therefore, the sales contract of this case shall be revoked by fraudulent act, and the defendant shall restore to its original state the original state the plaintiff is obligated to perform the procedure for registration of cancellation of ownership transfer registration of this case, so the plaintiff's claim shall be accepted in its reasoning. The judgment of the court of first instance is just in conclusion, and therefore, the defendant's appeal is dismissed as