As asserted to the effect that it was not known that it was a fraudulent act, there is no evidence to acknowledge it.

Considering that the defendant is in a position to know the financial status of the company and the sale price is significantly below the market price, it is insufficient to confirm that the defendant is a bona fide beneficiary.

§ 406. Right of revocation by Creditor

2013Du31410 Revocation of Fraudulent Act

Korea

CHAPTER A

November 7, 2013

December 12, 2013

1. The sales contract concluded on July 3, 2012 between BB Co. and the Defendant with respect to the real estate listed in the attached list of real estate shall be revoked within the scope of the OO members.

2. The defendant shall pay to the plaintiff OOO and the plaintiff 5% interest per annum from the day following the day when the judgment of this case became final and conclusive to the day of complete payment.

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

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. Plaintiff’s taxation claim establishment, etc.

1) BB Co., Ltd. (hereinafter referred to as a "non-party company") entered into a sales contract with the corporation for restaurant business, etc., around December 30, 2008, with the representative of KN Parking Building KimCC, staticD, and KimE, for OO-si 35-6 cases, and FF parking building 101 [(area: 439.034mmmm2)] of the building ("real estate before division"; hereinafter referred to as "real estate prior to division"]. On the following day, the above real estate has been registered for ownership transfer under Article 78057 of this Court's receipt.

2) On March 31, 2012, the head of the Changwon Tax Office notified the non-party company of the payment of the payment for non-payment after filing the final return of value-added tax for the second year of 2011 on March 31, 2012; on the non-payment after the preliminary return of value-added tax for the first year of 2012, the payment deadline was June 30, 2012; and on the non-payment after filing the final return of value-added tax for the first year of 2012, the head of the Changwon Tax Office notified the non-party company of the payment for each payment period.

3) However, the non-party company did not pay each of the above notified value-added taxes, and the director of the Changwon Tax Office ordered the non-party company to seize and collect the OOO members, and appropriated each of the above delinquent value-added taxes (hereinafter referred to as the "value-added taxes in this case") as listed in the table below.

See Table 3 of the Court Decision

B. Sale of real estate by Nonparty Company

1) On September 15, 201, the non-party company divided the real estate before the subdivision into three parts, and completed the registration of each division into the heading 101 [the area: 195.3498 square meters; hereinafter referred to as the "real estate of this case], 109 (area: 149.1562 square meters) and 110 square meters (area: 49.52 square meters) of OO-dong O-dong 35-6 GG Parking Building Act at OO.

2) After September 15, 201, Nonparty Company entered into a sales contract with Kim H on the said No. 109, and completed the registration of ownership transfer pursuant thereto to Kim H on October 13, 201. On October 4, 2011, Nonparty Company entered into a sales contract with Kim II on the said No. 110, and completed the registration of ownership transfer pursuant thereto to Kim II on October 13, 201.

3) In addition, on July 3, 2012, the non-party company entered into a sales contract with the defendant, the representative director of the non-party company, at the time of entering into the contract with the non-party company, having the purchase price for the instant real estate, which was the only real estate that was the only real estate with the defendant, as the representative director of the JJ, and entered into the contract with the non-party company at the time of entering into the contract, taking over the collateral obligation against the non-party Gyeongnam Bank (hereinafter "Gyeongnam Bank"), in lieu of the payment of the intermediate payment, and by separately paying the value-added tax by paying the remainder on the same day, the non-party company entered into the sales contract (hereinafter "the sales contract in this case"). On July 13, 2012, the non-party

C. Defendant’s cancellation of collateral security

1) On August 29, 2012, the Defendant obtained a loan of the instant real estate from the National Federation of Fisheries Cooperatives as collateral and repaid OOO for the principal and interest of loan to Gyeongnam Bank, and cancelled the registration of establishment of a neighboring bank of Gyeongnam Bank, which was established on the instant real estate.

2) Meanwhile, the market value of the instant real estate is an OOO as of September 2, 2013.

Facts without dispute over part of evidence, Gap evidence Nos. 1 and 2, Gap evidence No. 3-1, 2, 3-1, Eul evidence No. 4-1, Eul evidence No. 3, Eul evidence No. 4-1, Eul evidence Nos. 3 and 4-1, 2, Eul evidence No. 5-3, the fact inquiry results with the President of Gyeongnam-Nam, the appraiser KimK's appraisal results, and the purport of the whole pleadings.

2. Determination on the revocation of fraudulent act and the claim for restitution

(a) Claims for preservation;

As the non-party company’s liability to pay the value-added tax on December 31, 201 for the first value-added tax notified by Changwon Tax Office, on March 30, 201 for the second value-added tax, and on June 30, 2012 for the third value-added tax, each of the non-party company’s liability to pay the non-party company on June 30, 2012 for the third value-added tax, all of the Plaintiff’s delinquent value-added tax claims in this case were already incurred before July 3, 2012, which is the date of conclusion of the instant sales contract,

B. Establishment of fraudulent act

1) The debtor's intentional act is presumed to constitute a fraudulent act against the creditor, barring special circumstances, on the ground that the debtor's act of selling real estate, which is one of his/her sole property, and changing it into money or transferring it to another person without compensation, constitutes a fraudulent act against the creditor, barring special circumstances (see Supreme Court Decision 2000Da41875, Apr. 24, 2001). In addition, even a real estate on which the right to collateral has been established, it is open to the joint security of general creditors within the scope of the balance remaining after deducting the secured claim amount from the value of the real estate. Thus, in cases where the debtor transferred his/her real estate, which was created by the right to collateral security, to a third party while the debtor exceeds his/her obligation, and the proceeds of the transfer are agreed to substitute the payment by acquiring the secured obligation of the right to collateral security, the debtor shall be deemed to have transferred the real estate at an unreasonably low price of the real estate which was created by the joint security of general creditors without having actually paid the purchase amount (see Supreme Court Decision 95Da57575, May 985, 985

With respect to this case, there is no dispute between the parties that the real estate in this case is the only property of the non-party company, and the market value of the real estate in this case at the time of sale of the real estate in this case exceeds the amount of the existing collateral security obligation which was established on each of the real estate in this case. As such, the real estate in this case is open to the joint security of general creditors within the extent of the balance remaining after deducting the amount of the claim secured on the collateral in this case from its value. Thus, the act of the non-party company selling and selling the real estate in this case, which is the only property of the non-party company that was liable to pay the value-added tax against the plaintiff

2) As to this, the Defendant disposed of the instant real estate, the only real estate, but thereby, reduced the company’s passive property by repaying the secured debt of the right to collateral security that was completed on the instant real estate, but increased active property by paying the remaining money in repayment of the said debt to the non-party company. The instant sales contract was concluded while the Plaintiff neglected to perform his duty to enforce the tax in arrears. However, considering the above circumstances, the Defendant asserted that the instant sales contract cannot be deemed a fraudulent act, but the above circumstance did not prevent the non-party company from becoming a fraudulent act. Thus, the Defendant’s assertion is without merit.

C. Judgment on the defendant's defense

1) Defendant’s defense

The Defendant did not know that the instant sales contract was a fraudulent act by paying the sales price in full upon the request of the representative director of the Nonparty Company for purchase by the J under the knowledge of the financial status of the Nonparty Company.

2) Determination

According to the evidence Nos. 5-1 and 2, the defendant paid OOO(s) to the non-party company including the money in the name of the down payment, balance, and value-added tax on the date of the conclusion of the instant sales contract. However, the following circumstances, which can be seen by comprehensively taking into account the overall purport of the pleadings, are as follows: (i) the defendant is in the position to know the financial status of the non-party company due to the birth and birth of the headJJ; (ii) the real estate sales contract in the transaction practices is divided into the down payment, the intermediate payment, and the balance; (iii) the non-party company purchased OOO(s) on December 30, 208, the non-party company purchased 439.0314 square meters of the size of the real estate before the split-off on July 3, 2012; and (v) there is no other evidence to acknowledge that the real estate was sold to the non-party company as the non-party company’s sales agent’s 4%’s specific purpose.

(d) Scope of revocation of fraudulent act and methods of reinstatement;

1) In a case where a juristic act regarding a certain real estate constitutes a fraudulent act, in principle, the said fraudulent act shall be revoked and the order shall be issued to restore the real estate itself, such as the cancellation of the registration of transfer of ownership. However, in a case where the revocation of a fraudulent act and order the restoration of the real estate itself to the portion that was not previously secured by the general creditors if the revocation of the fraudulent act and order the restoration of the real estate itself would result in a result contrary to the fairness and fairness, it shall be reasonable to cancel the fraudulent act within the extent of the balance remaining after deducting the value of the portion that was not jointly secured from the value of the real estate less the value of the portion that was not jointly secured, and the amount of such value shall be calculated as at the time of the closing of arguments at fact-finding courts (see, e.g., Supreme Court Decisions 2009Da60466, Jul. 22, 201; 201Da37

In addition, in cases where restitution is made by means of equivalent compensation, the amount of compensation is limited to the scope of the claim amount of the revocation creditor. Therefore, the scope of revocation of fraudulent act and compensation for value should be limited to the smaller amount between the value of real estate, which was the joint security of the general creditors at the time of the fraudulent act, and the amount of the Plaintiff’s preserved claim (see Supreme Court Decision 97Da6711, Feb. 13, 19

2) First, on July 3, 2012, the Defendant concluded the instant sales contract with the non-party company on July 3, 2012, and completed the registration of ownership transfer for the instant real estate, and paid the principal and interest of the instant real estate to the non-party company on August 29, 2012, and cancelled the registration of ownership transfer for the Gyeongnam Bank near the instant real estate, which was established on the instant real estate on behalf of the non-indicted. As seen earlier, the market value of the instant real estate can be confirmed as at September 2, 2013 in light of the fact that the current market value of the instant real estate was the same amount as at the time of the conclusion of the instant pleadings. Thus, the amount of common collateral held by the general creditors on the instant real estate is the value of the instant real estate at the time of the conclusion of the instant sales contract after deducting the amount of OO in the remainder of the secured claim amount of the instant real estate held by the non-party general creditors (OOO).

Meanwhile, the fact that the amount of the value-added tax in arrears, which is the amount of the Plaintiff’s preserved claim, constitutes an OOO as seen earlier. In this case, the amount of the Plaintiff’s preserved claim is less than the amount of the real estate’s joint collateral.

3) If so, the sales contract of this case shall be revoked as a fraudulent act within the limit of the above OOO, and the defendant is obligated to pay damages for delay calculated by the rate of 5% per annum under the Civil Act from the day following the conclusion of the judgment of this case to the day of full payment with respect to the plaintiff as compensation for the equivalent value for restitution.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted for all reasons, and it is so decided as per Disposition.