Seoul Central District Court-2014-Dong-5318490 ( August 27, 2015)

Tax claims arising prior to the contract of gift are preserved claims under the right of revocation of fraudulent act.

Since the gift contract is deemed to be the disposal of the property that has been actually made up of the division of property, the tax claim that occurred before the gift contract constitutes the preserved claim.

2015Na47760 Revocation of Fraudulent Act

Plaintiff Republic of Korea

AA

1. Revocation of a judgment of the first instance;

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

A. Revocation of a gift agreement concluded on October 0, 200 between the Defendant and BB, and

B. The defendant will implement the procedure for the cancellation registration of ownership transfer registration that was completed on October 0, 200 by the Seoul Central District Court No. 1000 on the above BB.

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

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

The reasoning for this part of this Court is that the corresponding part of the judgment of the court of first instance is identical to that of the judgment except for the following additional facts, and thus, this Court shall accept it as it is in accordance with the text of Article 420

E. At the time of the instant donation contract, BB had no particular active property other than the instant real estate (the Defendant, at the time, held KRW 000,000 as active property other than the instant real estate at the time, for the compulsory auction of real estate at Incheon District Court Decision 2000,000,000. However, there is no evidence to prove that the said dividend remains at the time of the instant donation contract, and it is difficult to view it as active property, and BB did not pay the said transfer income tax up to the date of closing argument in the trial.

2. The assertion and judgment

(a)the existence of preserved claims;

According to the above facts, since the Plaintiff’s transfer income tax claim against BB prior to the instant donation contract (hereinafter “instant taxation claim”) occurred, the instant taxation claim is the preserved claim against the right to cancel the fraudulent act.

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

1) Parties’ assertion

A) Summary of the Plaintiff’s assertion

At the time of the donation contract of this case, BB had the real estate in this case as a small property and its tax liability amounting to KRW 000,000 at the market price as an active property. However, the contract of this case where the real estate was transferred to the Defendant, which is the only active property, constitutes a fraudulent act detrimental to BB’s creditors.

B) The defendant's argument

The defendant was transferred the real estate of this case under the pretext of division of property, etc. as a result of the divorce between BB and B, and the above division of property was made within the extent of reasonableness, so it is not a fraudulent act.

2) Determination

A) In a divorce, division of property, at the same time, shall contribute to the maintenance of the other party’s livelihood at the time of liquidation and distribution of the real property that the married couple had, and at the same time after the divorce, may be divided into benefits to compensate for mental damage (defensive materials) incurred by the division’s act. In determining the amount and method of division of property, considering the amount of property achieved through mutual cooperation between the parties and other circumstances is clear under Article 839-2(2) of the Civil Act, and thus, even if the division of property becomes insolvent, the amount and method of division, including the amount of the debt that the division has already contributed to the formation of the common property, and whether the amount and method of division, including the amount of the debt that the division bears, even if the division of property becomes insolvent by the pertinent act of division, may not be deemed reasonable contrary to the purport of Article 839-2(2) of the Civil Act, and the amount and method of division may be determined, barring special circumstances, to the extent that it exceeds 205 years’s obligee’s right of revocation.

B) In light of the fact that BB donated the instant real estate to the Defendant and applied for confirmation of intention of divorce before the lapse of 20 days from the donation, etc., the instant donation contract is aimed at the division of property regarding the common property formed during the marriage in the process of divorce by agreement between the Defendant and BB (not accepting the Defendant’s assertion that the instant real property was returned to BB again after the title trust was held by the Defendant). In order to determine that the instant donation contract constitutes an act subject to creditor’s right of revocation as a fraudulent act in light of the above legal principles, the Defendant was divided of property to the extent that it cannot be deemed reasonable against the purport of Article 839-2(2) of the Civil Act from BB to the extent that the instant donation contract was made by division of property, or there should be special circumstances to recognize that the instant donation contract was the disposal of property that was actually made in the process of divorce by agreement with the Defendant.

C) Therefore, according to the above facts, as to whether the donation contract of this case aimed at division of property becomes the object of creditor's right of revocation as a fraudulent act, and according to the above facts, since the inheritance of BB and the tax liability of this case arising from inheritance are unique property of BB, it is not subject to division of property, and there was 00 of this case equivalent to the market price of 00 won with positive property. As a result of the above division of property, the defendant acquired 00 of this case, which is all active property subject to division of property, while BB did not have any property, while BB did not have any evidence to recognize the responsibilities of BB in the marital life of the defendant and BB, the above division of property is too excessive to the extent that it is not reasonable against the purport of Article 839-2 (2) of the Civil Code, and there is special circumstance to recognize that the property division was made by the actual property division, and thus, BB is presumed as the object of creditor's right of revocation as a fraudulent act.

D) Furthermore, in full view of the health care and the circumstances as to the division of property as to the scope of revocation of fraudulent act beyond a reasonable scope among the instant donation contract, it is reasonable that the Defendant and BB owned one-half shares of the instant No. 000. Accordingly, the division of property as to the portion exceeding one-half shares of the instant real estate shall be deemed to constitute a fraudulent act with knowledge that BB would prejudice the general creditors.

C. Determination on the Defendant’s bona fide assertion

Since the defendant did not know the existence of the tax liability of this case, he asserted that he was a bona fide beneficiary who was unaware of the fraudulent act at the time of the donation contract of this case, so the evidence submitted by the defendant alone is insufficient to recognize that the defendant is a bona fide beneficiary, and there is no other evidence to acknowledge this otherwise. Therefore, the defendant'

D. Sub-committee

Therefore, this case’s gift contract concluded with respect to the instant real estate constitutes a fraudulent act, and thus, should be revoked. As to the instant real estate to its original state, the Defendant is obligated to implement the registration procedure for cancellation of ownership transfer registration as stated in Section 2.B.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted for all reasons, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance shall be revoked by accepting the plaintiff's appeal, and it shall be ordered to revoke the fraudulent act and to reinstate it as stated in the order.