Revocation of Fraudulent Act

Unless there are any special circumstances, an act of a debtor, which is already missing in excess of his/her obligation, provides real estate, the only property of which is his/her creditor, to any one of the creditors, as payment in kind, constitutes a fraudulent act in relation

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

1. The defendants' appeal is dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

(a) As to each real estate listed in Appendix 1. List:

(1) Between ○○○○ Stock Company and Defendant ○○○○○○, a contract establishing a collateral security concluded on July 9, 2004;

(2) The sales contract concluded on January 11, 2005 between ○○○ Company and Defendant ○○○○○ Company shall be revoked.

B. ○○○○ Company:

(1) As to each real estate listed in Appendix 1. List:

(A) The registration of the establishment of a neighboring establishment that was completed on July 9, 2004 by the ○○ District Court ○○○○○ registry office ○○, and completed on July 9, 2004;

(B) Defendant ○○○ shall register the transfer of ownership that was completed on January 12, 2005 by the receipt No. 592 of the same registry office;

(2) As to the real property listed in Appendix 1. List 1.1:

(A) Defendant ○○○ shall register the transfer of ownership, which was completed on March 4, 2005 by the receipt No. 3215 of the same registry office;

(B) Defendant Lee○-○ shall register the transfer of ownership, which was completed on March 17, 2005 by the same registry office as the receipt No. 3984.

Each cancellation registration procedure shall be implemented.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

The court's explanation of this case is the same as the judgment of the court of first instance, thereby citing this as is.

Therefore, the defendants' appeal of this case is dismissed on the ground that it is without merit.

Judgment of the first instance

Daejeon District Court 2005hap5632 (206.08)

【Summary】

Unless there are other special circumstances, an act of a debtor, which has already been absent in excess of his/her obligation, provides one of his/her creditors with real estate, the sole property of which is his/her creditor, as payment in kind, in relation to other creditors, and the same applies to an act of a debtor, which has already been absent in excess of his/her obligation, as a collateral for a claim, to any of

1. As to each real estate listed in Appendix 1. List:

A. Contract to establish a collateral security concluded on July 9, 2004 between ○○○ Stock Company and ○○○○○○○○.

B. The sales contract concluded on January 11, 2005 between ○○○ Company and Defendant ○○○○○○ Company is revoked, respectively.

2. For ○○○ Stock Company:

(a) As to each real estate listed in Appendix 1. List:

(1) The registration of creation of a collateral security completed by the ○○ District Court ○○○○○ registry office on July 9, 2004 as the receipt of No. 10260 on July 9, 2004

(2) Defendant ○○○ shall register the transfer of ownership, which was completed on January 12, 2005 by the receipt No. 592 of the same registry office;

B. As to the real estate listed in Annex 1. List 1.1:

(1) Defendant ○○○ shall register the transfer of ownership, which was completed on March 4, 2005 by the same registry office as the receipt No. 3215;

(2) Defendant Lee ○○ shall implement each procedure for registration of cancellation of ownership transfer registration completed on March 17, 2005 by the same registry office as the receipt No. 3984.

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

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or recognized by Gap evidence 1 to 11 (including each number), taking into account the overall purport of the pleadings:

A. Defendant ○○ is the representative director of ○○○○○○○○○ Company (hereinafter referred to as “○○○○○○”) with the aim of manufacturing, manufacturing, wholesale, and retailing a variety of products. Defendant ○○○○○○ is a director of ○○○○○○○, and Defendant ○○ is a simple penalty, and Defendant ○○○ is a partner of Defendant ○○○○○○○, and Defendant ○○○ is a partner of Defendant ○○○○, and Defendant ○○ is a wife of Defendant ○○

B. ○○○○ and Defendant leap○○ were investigated by an investigative agency on charges of violating the Agricultural Products Quality Control Act. On June 22, 2004, seizure and search of ○○ factory was conducted, and the account books, etc. of ○○○○○ was seized to an investigative agency. Defendant leap○○ was detained on July 14, 2004, when the charge of the above crime was recognized.

C. On July 9, 2004, the ○○○○○ and each real estate listed in the separate sheet No. 1. (hereinafter referred to as “each real estate of this case”) entered into a collateral security contract (hereinafter referred to as “instant collateral security contract”) with Defendant Lee○○ and the separate sheet No. 10260 on July 9, 2004, and completed the registration of collateral security with ○○ District Court No. 10260 on July 9, 2004.

D. On January 11, 2005, ○○○ entered into a sales contract with Defendant ○○ and each of the instant real estate (hereinafter referred to as “instant sales contract”) and completed the registration of ownership transfer with the same registry office No. 592 on January 12, 2005.

E. As to the real estate listed in Annex 1. List 1.2, Defendant 00 (1) completed the registration of transfer of ownership to Defendant 00 as the receipt No. 3215 of March 4, 2005 on the ground of sale on March 4, 2005, and (2) Defendant 00 completed the registration of transfer of ownership on March 17, 2005 to Defendant 00, respectively, with the same registry office No. 3984 on the ground of sale on March 16, 2005.

F. On July 28, 2004, 2004, the head of the ○○ Tax Office under the Plaintiff-affiliated Tax Office conducted a tax investigation after obtaining information on the suspicion of tax evasion from the ○○ Police Station that investigated the ○○○○○○○○○○ and Defendant ○○○○○○○○○, which identified the ○○○○○○’s tax evasion, and imposed KRW 853,09,310 in total by calculating the amount of tax, such as the corporate tax and value-added tax, on April 30, 2005, on the ○○○○○ on March 21, 2005, as indicated in the list 2. The amount of tax in arrears as indicated in the list of national taxes, including corporate tax and value-added tax.

G. At the time of the instant contract to establish a mortgage and the sales contract, active property worth ○○○○○○’s responsible property is 309,50,500 won [Attachment 1.35,900 square meters (6,940 square meters / x985 square meters) as of the officially announced land price in attached Table 1. List 204 + 188,189,400 won (51,80 square meters / 00 square meters x 3,633 square meters) as indicated in attached Table 1.3. While ○○○ was in the real property status equivalent to 114,480,200 (205,000 square meters / 000 / 558,444 square meters) as of the real property price listed in attached Table 1.3.

2. Determination

(a)the existence of preserved claims;

According to Article 21 (1) of the former Framework Act on National Taxes (amended by Act No. 7329, Jan. 5, 2005) which was enforced at the time of July 9, 2004, the instant mortgage contract was concluded, the corporate tax and value-added tax are established on the taxation claim "when the taxable period expires." According to the facts acknowledged earlier, the Plaintiff had already established the instant mortgage contract on the corporate tax to ○○○○○○○○○○○○○○○○○○○○○○○○○○ on December 31, 2002 at the end of each taxable period, and on December 31, 2003 at the end of each taxable period, as for the value-added tax, on June 30, 2002 at the end of each taxable period, and on December 31, 2002; on June 30, 2003; and on June 31, 2003 and June 30, 2004.

B. Establishment of fraudulent act

(1) Where the debtor's property is insufficient to fully repay his/her obligation, if the debtor provided real estate to a certain creditor, which is the only property, as payment in kind, or as a bond security, and completed the registration of transfer of ownership or creation of collateral security, such creditor obtains satisfaction of obligation prior to other creditors, while the joint collateral is reduced within the scope of the scope of the joint collateral, and thus, the other creditors are placed in a more unfavorable position than the previous creditor's interest. Therefore, barring any special circumstance, the debtor's act of offering real estate, which is the only property of the debtor, to one of his/her creditors, as payment in kind, constitutes fraudulent act in relation to other creditors, and the same applies to the act of offering real estate, which is the only property of the debtor, to one of his/her creditors, as a bond security.

As to this case, it is reasonable to view that the act of disposing of each of the real estate in this case was a fraudulent act detrimental to the plaintiff, a creditor, even though ○○○○ had been aware of the fact that ○○○ had already been in excess of the obligation at the time of entering into the instant contract and the sales contract, and that ○○○ had already been in excess of the obligation as seen earlier. Thus, even if ○○○ had already completed the registration of transfer of ownership and establishment of collateral on each of the real estate in this case as the repayment of the obligation or collateral as asserted by the defendants, the act of providing each of the real estate in this case, which is the sole property, established a collateral security right on each of the real estate in this case, and furthermore, the act of disposing of it would cause the shortage of joint collateral and prejudice other creditors, barring any special circumstance. It is presumed that the act of disposing of it was a fraudulent act detrimental to the plaintiff, a beneficiary, Defendant Lee○, Defendant ○○ and the subsequent purchaser, Defendant ○○○, and this act was a fraudulent act.

(2) On this basis, Defendant 00 million won was granted a claim against Defendant 00 million won while giving a discount on a bill or check. In order to secure the payment of the said money, Defendant 00 million won was registered as a collateral for the instant case without knowing the existence of the instant tax obligation. ② Defendant 00 was notified of the results of tax investigation by the head of ○○ Tax Office on March 21, 2005, and Defendant 0 knew the existence of the instant tax obligation. ③ Defendant 00 million won was purchased from the real estate indicated in [Attachment 1.1] on the list with Defendant 00 won without knowing the existence of the instant tax obligation at the request of ○○○○○○○○○○○○○, and ④ Defendant 00 won was aware of the instant tax obligation, and thus, Defendant 00 won was subject to the establishment of a collateral for payment without knowing the existence of the instant tax obligation, and thus, Defendant 1’s assertion to the effect that it did not constitute a subsequent purchaser or a subsequent purchaser of the instant case.

C. Sub-committee

Therefore, with respect to each real estate of this case, the contract establishing a collateral security and the contract concluded on January 11, 2005 between ○○○○ and ○○○○○○○ on July 9, 2004 should be revoked as a fraudulent act, and (1) as to each real estate of this case, the restoration to ○○○○○; (2) as to each real estate of this case, the Defendant○○○○○○; (3) as to each real estate of this case, the registration of establishment of a collateral security completed on July 9, 2004 by ○○ District Court ○○○○○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○; (4) as to the real estate entered on January 1, 2001; and (5) as to the transfer to ownership registration completed on March 315, 20015.

3. Conclusion

Thus, the plaintiff's claim against the defendants is accepted on the grounds of all.