Pospo Support-2014-Shap-10088 ( October 16, 2014)

The act of using his own cash in the repayment of another person's lease deposit with excess of his/her obligation constitutes a fraudulent act.

The act of using his own cash in the repayment of another person's lease deposit with excess of his/her obligation constitutes a fraudulent act.

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

2014Na13739 Revocation of Fraudulent Act

Korea

The two AA

Wood Branch Decision 2014Gahap10088 decided October 16, 2014

October 14, 2015

December 9, 2015

1.The judgment of the first instance shall be modified as follows:

A. The monetary donation agreement of KRW 202,00,000, which was concluded on April 23, 2012 between the Defendant and KimB is revoked.

B. The defendant shall pay to the plaintiff 202,00,000 won with 5% interest per annum from the day following the conclusion of this judgment to the day of full payment.

C. The plaintiff's remaining claims are dismissed.

2. 1/7 out of the total litigation costs is assessed against the Plaintiff, and the remainder 6/7 is assessed against the Defendant, respectively.

1. Purport of claim

The Defendant and KimB revoked a monetary donation contract of KRW 238,00,000 between the Defendant and KimB on April 23, 2012. The Defendant shall pay to the Plaintiff 238,000,000 with the interest of KRW 5% per annum from the day following the conclusion of this judgment to the day of full payment.

2. Purport of appeal

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

1. Basic facts

A. Real estate transaction by KimB and the Plaintiff’s taxation claim

1) On October 12, 2002, the Defendant’s husband, KimB purchased O-O-O-205 m205 m2 from his mother on October 12, 2002, and completed the registration of ownership transfer in the name of GCC on November 25, 2002. On August 26, 2003, the Defendant newly constructed three-story houses on that ground and completed the registration of ownership transfer in the name of GCC (hereinafter “the instant real estate”).

2) On September 7, 2010, KimB entered into a contract to sell the instant real estate to DD, China, for KRW 1,350,000,000. On the same day, KimB completed the registration of transfer of the instant real estate under the name of D as OOOOO under the receipt of OOOOO registry of the OO district court, but did not report and pay capital gains tax on the transfer of the instant real estate.

3) On July 2, 2012, the head of the OB tax office under the Plaintiff’s head of the OB notified KimB that the amount of KRW 251,653,570 shall not be paid by July 31, 2012 (hereinafter “instant notice”), but KimB did not pay it by the date of closing argument of the instant case. The sum of the capital gains tax and its additional tax as of January 10, 2014 as indicated in the table 1 below is KRW 310,540,450.

Table 1

Items of Taxation

Reversion

Date of establishment of tax liability;

Legal date;

Date of Notification

Deadline for payment

Notice Tax Amount

Amount in arrears

Transfer Income Tax

2010

September 30, 2010

2, 2012

2, 2012

July 31, 2012

251,653,570 won

310,540,450 won

(b) Payment of money to the defendant by KimB;

1) On March 22, 2012, KimB entered into a contract to sell 424,000,000 square meters of O-O-O large 1,086.3 square meters of OB (hereinafter referred to as "O-O-dong land"), one of its owners, for OE, for 424,00,000 square meters, and on the same day, he/she completed the registration of ownership transfer under the name of OOOO-O-O-34,000 with respect to the above land under the name of OOO-O-O-O-34,000 on the same day, and OE transferred 203,686,394 won to the account of KimB (* A bank O-O-O-34,00) for the remainder of the purchase price on the same day.

2) 김BB은 2012. 4. 2. 위 계좌에서 액면금액 202,000,000원의 자기앞수표 1장(수표번호 20OOOOOO)과 현금 1,000,000원 등 합계 203,000,000원을 출금한 후 같은 날 위 자기앞수표를 피고의 계좌(##은행 OOO-OO-09OOOO로 입금하였다.

3) 피고는 2012. 4. 18. 자신의 위 계좌에 있던 249,000,000원을 전부 자신의 다른 계좌(##은행 OOO-OO-24OOOO)로 이체한 후 이를 전액 출금하여 그중 238,000,000원을 김BB의 계좌(##은행 OOO-OO-03OOOO로 송금하였다.

4) 김BB은 2012. 4. 23. 피고로부터 송금받은 238,000,000원을 자신의 다른 계좌(##은행 OOO-OO-036OOO)로 이체한 후 이를 액면금액 238,000,000원의 자기앞수표 1장(수표번호 06OOOOOO)으로 출금하였다.

5) Meanwhile, on March 5, 2010, the Defendant concluded a lease contract between the DoF and the DoF on the apartment (OOO-dong OO-dong OO-dong OO-dong) with the deposit amount of KRW 380 million and the lease period from April 24, 2010 to April 23, 2012. However, KimB delivered the above cashier’s checks to the DoF on April 23, 2012 as the refund of the deposit amount.

[Reasons for Recognition] Evidence Nos. 1 through 8, Evidence Nos. 8 and 11, and the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The defendant's assertion

The Plaintiff filed the instant lawsuit in which KimB had been aware of the Defendant’s donation of KRW 238,00,000 on or before April 24, 2012, on or before that date, on April 23, 2012, on the ground that the said donation was constituted a fraudulent act, and that the said donation constitutes a fraudulent act, the Plaintiff filed the instant lawsuit with the obligee to exercise the obligee’s right of revocation on or before January 10, 2014. Thus, the instant lawsuit is unlawful by lapse of the exclusion period.

B. Determination

In the exercise of creditor's right of revocation, "the date when the creditor becomes aware of the cause for revocation" means the date when the creditor becomes aware of the requirement for creditor's right of revocation, that is, the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act with the knowledge that the creditor would prejudice the creditor. Thus, it is not sufficient that the debtor merely knows that he/she conducted a disposal act of the property, and the juristic act is an act detrimental to the creditor, which makes it impossible to fully satisfy the claim due to the lack of joint security of the claim or lack of joint security already in the state of insufficient condition, and further, it is also required to know that the debtor had an intent to mislead.

On September 7, 2010, the Ministry of Health and Welfare and KimB transferred the instant real estate that had been completed the registration of transfer of ownership or the registration of preservation of ownership in the name of GCC to DD, China, but the transfer income tax therefrom has not been reported and paid. On March 22, 2012, KimB transferred the amount of KRW 202,00,000 out of the sales price of the PP Dong land owned by himself to the Defendant’s account, but was remitted the amount of KRW 238,000,000 from the Defendant to the DoF, a lessee of the Defendant, to return the lease deposit. According to the evidence No. 2, according to the fact that: (a) the public official in charge of OB, under the Plaintiff, lent the real estate to the Defendant’s account on April 23, 2012 and granted the money as the refund of the lease deposit to DoF, a lessee of the Defendant’s cashier’s cashier’s cashier’s cashier’s cashier’s name and the instant real estate.

However, even if the Plaintiff did not report and pay the transfer income tax on the instant real estate transferred on September 7, 2010, but did not take any particular measure, the Plaintiff received a written confirmation from GCC only on April 24, 2012, immediately after the purchase price for the instant land was used to repay the Defendant’s deposit for the repayment of the lease deposit, in the instant case where there is no evidence to prove that the Plaintiff had known that the instant real estate, which was registered in the name of GCC, was the property trusted in title by GCC before the receipt of the written confirmation from GCC on April 24, 2012, it is difficult to find that there was no evidence to acknowledge that the Plaintiff was entering into a donation contract between KimB and the Defendant on April 24, 2012 with respect to the money that the Plaintiff received from GB upon receipt of the written confirmation from GCC, and that the donation was an act detrimental to the obligee’s creditor.

Therefore, the defendant's above assertion is without merit.

3. Judgment on the merits

(a)the existence of preserved claims;

1) Although it is required that a claim protected by the obligee’s right of revocation has arisen prior to the commission of an act that can be seen as a fraudulent act in principle, it is highly probable that a claim has already been established at the time of the fraudulent act, and that a claim would be established in the near future due to its existing legal relationship, and where a claim has been established in the near future as a result of its realization, the claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2011Da76426, Feb. 23, 2012). Such legal principle applies to a claim. As such, inasmuch as there was a basic legal relationship as to the occurrence of a taxation claim even if there was no specific disposition at the time of the fraudulent act, and where a taxation claim was established specifically through a series of procedures in the near future, such a taxation claim may become a preserved claim of the obligee’s right of revocation, as the last day of March 23, 2001; and

With respect to this case, the public health and KimB notified the DoF of this case on the transfer income tax of this case against KimB, which was more than two months from April 23, 2012, when the amount of 238,000,000 cashier's checks was paid to the Defendant's DoF as the repayment of the Defendant's lease deposit to DoF, but it was highly probable that the above claim for transfer income tax is established in the near future by establishing abstract tax liability for transfer income tax of this case as of September 30, 2010, which is the end of the month to which the transfer date of this case's real estate belongs, and it is highly probable that the Plaintiff's actual owner of the real estate of this case was KimB, and that the transfer income tax claim of this case was confirmed by the determination and notification of transfer income tax due to the transfer of this case's real estate of this case to DoF, and it is reasonable to view that the above claim for transfer income tax of this case was revoked by the due date of 2060 days of national tax collection.

2) As to this, the Defendant: (a) as the owner on the public register of the instant real estate is different from the owner on the public register, it is difficult to view that the liability to pay the Plaintiff, who is the owner on the public register, was established on September 30, 2010, on the last day of the month in which the instant real estate was transferred; (b) apart from the existence of the liability to pay the Plaintiff, it is difficult to deem that the Plaintiff was liable to pay the Plaintiff, even if there was a separate reason for the occasional imposition under Article 21(2) Subparag. 4 of the Framework Act on National Taxes, upon receipt of a written confirmation from GCC; and (c) the Plaintiff determined the tax base and tax amount of the transfer income tax on KimB only on July 2, 2012, the time when the Plaintiff’s transfer income tax claim on KimB was established shall be deemed as July 2, 2012.

However, if a title truster transfers real estate to a third party and income from such transfer was attributed to the title truster, in light of the principle of substantial taxation prescribed in Article 14(1) of the Framework Act on National Taxes and Article 7(1) of the former Income Tax Act (wholly amended by Act No. 4804, Dec. 22, 1994; hereinafter the same shall apply), the person liable to pay capital gains tax does not belong to the title truster who is the subject of the transfer, the title truster who is the subject of the transfer, is not the person liable to pay the capital gains tax (see, e.g., Supreme Court Decisions 80Nu545, Jun. 9, 1981; 93Nu517, Sept. 24, 1993; 96Nu6387, Oct. 10, 197); and the duty to pay capital gains tax to the title truster shall also be established based on the actual transfer date.

In the instant case, the Health Board and KimB trusted the instant real estate to the GCC, but on September 7, 2010, transferred the instant real estate to DD, China, and therefore, the income accrued from the transfer of the instant real estate belongs to KimB. Therefore, the obligation to pay capital gains tax on September 30, 2010, which is the end of the month to which the date of transfer of the instant real estate belongs, shall be deemed to have occurred on September 30, 2010, and the said obligation to pay capital gains tax on KimB, the actual owner of the instant real estate due to the change between the owner of the instant real estate and the actual owner of the instant real estate, shall be deemed to have been notified of capital gains tax on July 2, 2012. Therefore, the Defendant’s above assertion is without merit.

3) In addition, the Defendant asserts that, at the time when the Plaintiff received a confirmation letter to the effect that the instant real estate is owned by KimB, the part equivalent to 82.3% of the cost incurred when the Plaintiff acquired the instant real estate could be explained. In addition, if HCC made a preliminary return of capital gains tax in the name of HCC before the Plaintiff’s public official in charge prepared a confirmation letter, the amount of tax would be only 14,626,00 won, which would not be deemed to have been established when KimB performed the Defendant’s obligation to refund the lease deposit, and the Defendant would not be deemed to have been paid the instant obligee’s right to revocation of the instant claim for capital gains tax on account of such premise. However, since the Defendant’s tax amount, etc. is premised on the premise that, before the actual owner of the instant real estate was KimB, it is difficult to deem that the Plaintiff’s claim for capital gains tax was void or unjust.

B. Whether the fraudulent act was established

(i) the insolvency of KimB;

In determining whether a debtor's excess of the debtor's obligation is established at the time of the fraudulent act, and it is highly probable that the debt will be established based on the existing legal relations in the near future, and in the near future, where the probability is realized and the debt is actually established in the near future, the debtor's debt shall also be included in the debtor's small property (see Supreme Court Decision 2010Da68084, Jan. 13, 201). Therefore, the plaintiff's transfer income tax claim against KimB against the defendant shall be included in the KimB's small property, and it shall be determined whether the debt exceeds the debt

In addition to the statements in Gap evidence Nos. 4, 5, 7, and 8, the whole purport of the pleadings is added, since KimB's active and passive properties as of April 23, 2012, which were recorded in the following Table 2, at the time KimB fulfilled the defendant's obligation to refund the lease deposit, KimB shall be acknowledged. Thus, KimB shall be deemed to have exceeded the obligation at the time, and if the debtor donated his own property to another person under excess of the obligation, such act constitutes a fraudulent act unless there are special circumstances (see, e.g., Supreme Court Decisions 97Da57320, May 12, 1998; 2006Da11494, May 11, 2006).

Table 2

Classification

Items

Details

The appraised value (the balance): Won.

Jinay

Active Property

Deposit

%O-O-47OOO)

20,000

A No. 7

%% Bank (OO-O-40O)

3,884

* Banks (11OOOOOO)

2,902

A No. 5

Real estate

OOOOOOO-O

239,875

A No. 8

OOOOOOOOO

11,938,470

The aggregate of active property

12,405,131

Petty Property

Transfer Income Tax

Transfer of Real Estate of this case

251,653,570

A No. 4

Total amount of small-sized property

251,653,570

2) As to whether there was a donation to the Defendant by KimB

A) In a case where a creditor seeking the revocation of a fraudulent act asserts that an act of payment of money to a beneficiary is a gift to a beneficiary, the fact that the act of payment of money constitutes a gift must be proved. The burden of proof is on the part of asserting a fraudulent act (see, e.g., Supreme Court Decision 2005Da28686, May 31, 2007). In such a case, in order to constitute a gift, the act of payment of money must be objectively and objectively be interpreted as an agreement between the parties on the transfer of the money transferred as above to the beneficiary without compensation between the debtor and the beneficiary (see, e.g., Supreme Court Decision 2012Da30861, Jul. 26, 2012).

B) On March 22, 2012, the Defendant and KimB were married, and the KimB sold 200 won to ParkE on March 22, 2012, and then received 203,686,394 won from GabE to his account. On April 2, 2012, the Defendant deposited 202,00,000 won from the above account to his cashier’s account on April 18, 2012, and then transferred 200 won to the Defendant’s account. The Defendant’s assertion that the above 200 won was the source of 238,00,000,000 won, and that the above 200 won was the Defendant’s 200 won of Gab’s 200,000 won of Gab’s 200,000 won of Gab’s 238,000 won of Gab’s 200,000 won of Ga.

C) In relation to this, the Defendant borrowed 180 million won as a security on the real estate owned by the Defendant by KimB to purchase the instant real estate from GJ, and borrowed 100 million won as a down payment on July 4, 2002, and 120 million won as an intermediate payment on July 4, 2002, and lent the said money to KimB to the Defendant on July 21, 2005, 30 million won as loans of KimB and 40 million won as loans of 30 million won as loans of 30 million won as of July 21, 2005, and 40 million won as of December 4, 2007, 2000 + 200 million won as loans of 30 million won as of December 31, 2000 + 200 million won as of July 31, 200, 205, respectively, the Defendant subrogated to the Defendant.

살피건대, 을 제1호증, 을 제3 내지 9호증(가지번호 있는 것은 가지번호 포함)의 각 기재에 의하면, ① 2002. 11. 25. 박JJ의 소유이던 OO시 OO동 OOO-O 대 205.1㎡(이 사건 부동산 중 토지에 해당한다)에 관하여 2002. 10. 12. 매매를 원인으로 OOO지방법원 OO등기소 접수 제5OOOO호로 임CC 명의의 소유권이전등기가 마쳐진 사실, 피고가 2002. 7. 3. 주식회사 ##은행으로부터 피고 소유의 OO OO구 OO동 OO OO아파트 OO동 OOO호를 담보로 1억 8,000만 원을 대출받아 2002. 7. 4. 그 중 4,600만 원을 박JJ에게 송금하였고, 2002. 7. 19. 나머지 대출금 중 1억 2,000만 원을 자신의 계좌에서 인출한 사실, ② 윤KK이 2005. 7. 21. 임CC 명의의 계좌에 3,000만 원을 송금하였고, 피고가 2007. 11. 14. 윤KK에게 1,821만 원을 송금하였으며, 윤KK이 2007. 12. 4. 피고에게 3,000만 원을 송금한 사실, 피고가 임CC의 계좌에 2010. 3. 31. 3,500만 원, 2010. 4. 5. 3,000만 원을 각 송금한 사실은 인정되나, 위 인정사실들만으로는 피고가 김BB에게 해당 각 금원을 대여하거나 김BB의 채무를 대위변제함으로써 이 사건 증여계약 당시 피고가 김BB에 대하여 3억 500만 원의 대여금채권 내지 구상금채권을 가지고 있었다고 인정하기에 부족하고, 달리 이를 인정할 증거가 없으므로 피고의 위 주장은 이유 없다(설령 피고 주장과 같이 김BB이 피고에 대한 채무를 부담하고 있었고, 김BB이 XX동 토지를 매각하고 받은 매매대금 중 202,000,000원으로 피고의 임대차보증금반환채무를 대신 변제한 것이 자신의 피고에 대한 채무를 변제한 것이라고 하더라도, ① 피고는 김BB이 자신에 대하여 채무를 부담하고 있다는 주장을 하고 있을 뿐, 그 변제기에 관하여는 어떠한 구체적인 주장, 입증도 아니하고 있어 비록 김BB이 피고에 대하여 채무를 부담하고 있다고 하더라도 이는 변제기의 정함이 없는 채무들이라고 봄이 상당한 점, ② 김BB은 2012. 3. 22. 박EE에게 당시 김BB의 적극적 재산의 대부분에 해당하는 XX동 토지를 매각하고 그 잔금으로 203,686,394원을 지급받고, 같은 해 4. 2. 그중 202,000,000원을 자기앞수표로 출금하여 피고의 계좌로 입금하였으며, 김BB의 모친인 임CC이 2012. 4. 24. 원고 산하 구로세무소 담당공무원에게 이 사건 부동산의 실소유자는 김BB이라는 내용의 확인서를 작성해 주었는바, 김BB과 그의 처인 피고로서는 그와 같은 김BB의 재산상황 및 이 사건 부동산의 매각과 관련하여 실소유자인 김BB 앞으로 곧 과세관청의 일정한 처분이 내려질 것을 알 수 있었던 것으로 보이는 점 등을 종합하여 보면, 김BB이 XX동 토지의 매매잔금의 대부분인 202,000,000원을 피고의 계좌에 입금하였다가 피고의 계좌에 있던 돈을 합한 238,000,000원을 건네받아 피고의 임대차보증금 반환채무를 대신 이행한 것은 체납자인 김BB이 피고와 통모하여 원고를 해할 의사를 가지고 피고에 대한 채무를 변제한 것이라고 할 것이므로, 이 점에 의하더라도 김BB이 위 임대차보증금반환채무를 대신 변제한 것은 원고에 대한 사해행위에 해당한다고 봄이 상당하다).

3) The intention of the KimB to kill and the defendant's bad faith

A) In light of the background leading up to the donation of money by KimB to the Defendant, the relationship between KimB and the Defendant, etc., the intent of the KimB may be recognized, and the Defendant’s bad faith is presumed to be the beneficiary.

B) As to this, the Defendant asserts that he was duly paid the debt from KimB, and that he was the bona fide beneficiary who was not aware of the fact that the KimB’s insolvency and the instant donation contract would prejudice the Plaintiff, a general creditor.

그러므로 살피건대, 사해행위취소소송에 있어서 수익자가 사해행위임을 몰랐다는 사실은 그 수익자 자신에게 입증책임이 있는 것이고, 이 때 그 사해행위 당시 수익자가 선의였음을 인정함에 있어서는 객관적이고도 납득할 만한 증거자료 등에 의하여야 하며, 채무자의 일방적인 진술이나 제3자의 추측에 불과한 진술 등에만 터잡아 그 사해행위 당시 수익자가 선의였다고 선뜻 단정하여서는 아니 되는바(대법원 2009. 5. 28. 선고 2009다11617 판결 등 참조), 피고가 김BB에 대하여 채권을 가지고 있음을 인정하기 어렵거나, 설령 피고 주장과 같이 김BB이 피고에 대한 기존의 채무를 변제한 것이라고 하더라도 그것이 사해행위에 해당함은 앞서 판단한 바와 같고, 그 밖에 피고의 악의 추정을 깰만한 사정이 있음을 인정할 증거가 없으므로 피고의 위 주장은 이유 없다.

(c) Cancellation and reinstatement of donation contracts;

The donation contract between KimB and the defendant on April 23, 2012 with respect to KRW 202,00,000 shall be revoked as a fraudulent act detrimental to the general creditors of KimB, including the plaintiff (the above amount shall not exceed 310,540,450 won in the amount of preserved claim against the plaintiff KimB). As a result, the defendant, who is the beneficiary, is obligated to pay to the plaintiff damages for delay at the rate of 5% per annum as stipulated in the Civil Act from the day following the conclusion of the judgment and the date of full payment.

4. Conclusion

If so, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claims are dismissed as there is no ground. Since the judgment of the court of first instance is unfair with some different conclusions, part of the defendant's appeal is accepted and the judgment of the court of first instance is modified as above, it is so decided as per Disposition.