Seoul Central District Court Decision 2012Ga54266 decided 2014 ( October 24, 2014)

The confession is not valid because the confession is contrary to the truth and is not made due to mistake, and the revocation of confession is not valid, and the act of monetary payment by the insolvent debtor is fraudulent act.

Since the confession by the defendants cannot be deemed to be contrary to the truth and due to mistake, the revocation of confession is not effective, and the act of monetary payment by the debtor in insolvent status constitutes a fraudulent act.

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

2014Na202527 Revocation of Fraudulent Act

Korea

1.GaA

2.A

oly 2014.08

oly 31, 2014

1. All appeals by the Defendants are dismissed.

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

1. Purport of claim

The Defendants and leA shall revoke their respective monetary payment activities on November 4, 2010. The Defendants shall pay to the Plaintiff 40 million won with 5% interest per annum from the day following the conclusion of the judgment of this case with respect to each of the above 400 million won to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Basic facts

The following facts are that there is no dispute between the parties or (the defendant, in the preparatory document dated March 19, 2013, led to the confession that apA paid a total of KRW 800 million to the defendants, but the person who paid the above money to the defendants by cancelling the previous confession through the preparatory document dated May 2, 2013, the person who paid the above money to the defendants is not leAB. Thus, it is difficult to recognize that the confession was against the above defendants since scam, No. 15, No. 17-1 through 3, No. 17-2, No. 18, No. 19-3, No. 19-20, No. 21, No. 22-1, No. 23-1, and No. 2 of No. 2, and 2 of the above documents, there is no further evidence to acknowledge that the confession was against the above defendants' facts that the confession was made.

Gap evidence 1, Gap evidence 2-1, 2, Gap evidence 5, Gap evidence 6, Gap evidence 7-1 through 3, Gap

Evidence Nos. 8, 9, 18-1 through 27, 9, 10-1, 10-2, 10-1, and 2 may be recognized by adding up the whole purport of the pleadings.

(a) Relationship between the Parties and monetary transactions;

1) Defendant KimA is the head of the leA, Defendant Lee Dong is the head of the leA, and Defendant KimB is the head of the leA, and KimB is the mother of the leA, and KimCC is the wife of the leA.

2) On June 30, 2005, AapA received respectively a total of KRW 210 million from Defendant A, KRW 10 million from KimCC, KRW 297,826,968 from her relative KimD, her relative KimB, and KimE.

3) Meanwhile, from June 19, 2009 to June 24, 2009, the Defendants remitted a total of KRW 1.455 billion to the account of AAA corporation operated by leapA from June 19, 2009.

(b) transactions relating to 00 00 - 00 - 465-1 BBB.

1) On November 4, 2010, AapA entered into a contract with the CCC Co., Ltd. (hereinafter “CCC”) and the BBBB 00, 465-1 with respect to purchase of 10.38 billion won and 23 other than BB 00, 465-1, and paid 1 billion won for the down payment to the CCC on the same day.

2) On November 4, 2010, apA changed the purchaser of the above BBB 000 and the above BB 000 and 23 units of the same building (hereinafter referred to as 'bbbbb shop') to the defendants, and the purchaser of the remaining nine units of the building was changed to KimF, a co-born of KimB.

3) Accordingly, on November 4, 2010, the Defendants entered into a contract to purchase CCC and bbbb commercial buildings in KRW 7,611,591,00, and agreed that KRW 800,000,000,000, out of KRW 1,000,000,000 as stated in the above paragraph (1) shall be replaced by KRW 80,000,000,000. Ultimately, leapA paid to the Defendants a sum of KRW 400,000,000 in each of the above methods (hereinafter “instant monetary payment”).

C. Plaintiff’s taxation claim

On November 4, 2010, the Plaintiff had a total of KRW 3,430,685,270 against leapA as of November 4, 2010 (hereinafter “instant tax claim”), and the specific details are as follows (tax claim list).

【Tax Credit List】

2. Determination on the claim of this case

A. Summary of the parties' assertion

1) The plaintiff's assertion

The nature of the instant monetary payment act is a donation to the Defendants by the Prostitution, and at the time of the act, leA had already been in excess of its obligation, and thus, the instant monetary payment act constitutes a fraudulent act. Even if leA paid a loan to the Defendants, even if leA paid a loan to the Defendants, there was a collusion between leA and the Defendants to commit a fraudulent act, and thus, it should be revoked as it constitutes a fraudulent act.

2) The defendants' assertion

Since the Defendants received money from KimB, not a leAA, there is no fraudulent act between leA and the Defendants asserted by the Plaintiff. Even if not, leA was not in excess of the obligation at the time of the instant monetary payment, leA discharged the Defendant’s obligation to borrow money. The Defendants are bona fide beneficiaries, and thus no fraudulent act is established.

B. Determination

(i) the existence of the preserved claim

On the other hand, the part notified prior to the instant monetary payment act among the instant tax claims is naturally a preserved claim, and furthermore, the part notified after the instant monetary payment act, such as the tax claim Nos. 21, 24, and 25 in the preceding [Tax Claim Table], as the date of establishment of each tax liability, was the monetary payment act in the instant case, and thus, there was a legal relationship which serves as the basis for the instant tax claim, and there was a high probability that the tax claim may occur in the near future. As such, the probability was actually realized by the notification in the near future, and the tax claim may become a preserved claim.

Therefore, the taxation claim of this case constitutes the preserved claim for revocation of fraudulent act of this case.

2) Whether a leapA is insolvent

(A)affirmative property;

(1) Deposit claims.

At the time of the instant monetary payment act, the fact that apA had a deposit claim of KRW 1,196,567 against D Financial Investment Company was in dispute between the parties concerned.

(2) The 00-Gu 00-Gu 00, 1495-2, and 501 above ground EE on one parcel of non-party 1

In determining whether a fraudulent act constitutes a creditor’s subject matter of revocation, if an asset owned by an obligor is provided as a physical collateral for another creditor’s claim, the portion provided as a physical collateral cannot be deemed a debtor’s liability property for the general creditors, and thus, only the balance obtained by deducting the amount of secured claim held by other creditors from the value of the asset provided as a physical collateral is assessed as an obligor’s active property. In such cases, where a joint mortgage is established on several real estate, the amount of secured claim borne by each real estate should be deemed as the amount apportioned the amount of secured claim by the joint mortgage in proportion to the value of each real estate provided as a joint mortgage in light of the purport of Article 368 of the Civil Act, barring any special circumstance (see, e.g., Supreme Court Decision 2010Da64792, Jan. 12,

According to the evidence No. 28, Eul evidence No. 28, Eul evidence No. 3, Eul evidence No. 5, Eul evidence No. 6, Eul No. 11, and Eul No. 11, each of the above EEE 28, Eul evidence No. 2000, 000, 1495-2, and 1400, 501, 501, EEE 200, 500, 500, 500, 2000, 500, 2000, 202, 200, 300,000, 500,000 won, 1,000 won, 1,000,000 won, 1,000 won, 1,000,000 won, 1,000 won, 1,000 won, 2,000 won, 2,000.

It can be recognized that the above market price was similar at the time of November 4, 2010, which was the date of the monetary payment of this case.

Therefore, according to the legal principles as seen earlier, only KRW 2,302,426,282, which divided the secured debt in proportion to the value of KRW 501 of the EEE 501 from the market price of KRW 2.90 billion in the market price of KRW 2,302,426,282 = 4,684,246,574 x 2.9 billion/ (2.9 billion + KRW 3 billion), but less than KRW 2.97,573,718 (= KRW 2,900,00,000 - KRW 2,302,426,282) can be assessed as the active property of leapA.

(3) Attached 1. Each 1/3 shares in the real estate listed in the real estate list;

The Plaintiff asserted that the market price of 1/3 of the real estate listed in the [Attachment 1] List owned by the Plaintiff is KRW 2,751,722,050 among the real estate listed in the real estate list (hereinafter “the instant real estate”), but there is no evidence to acknowledge the market price. However, according to each of subparagraph 1, subparagraph B-2 through 14, subparagraph 2-2 through 17, 17, 18, 20 through 27, the Plaintiff’s District Court Yangyang-Support 201ta21507, the market price assessed on the instant real estate as of August 30, 201 as of August 30, 201, it is confirmed that the market price of 1/3 of the instant real estate among the instant real estate is equivalent to that of November 4, 2010, as shown below.

In this regard, the Plaintiff asserts to the effect that the amount equivalent to KRW 267,00,000,000, distributed in proportion to the respective share values of leA and KimB out of KRW 800,000,000, out of the secured debt amount of 1/3 shares of the instant real estate, which was owned by leA, should be deducted from each share value of leA and KimB.

In the event a joint mortgage is established on several real estate, if part of the debt is owned by the debtor and other parts are owned by the person who has pledged the property, considering the fact that the person who has pledged the property is in a position to exercise the mortgage on the real estate owned by the debtor by subrogation under the provisions of Articles 481 and 482 of the Civil Act, it is reasonable to view that the amount of the secured debt on the real estate owned by the debtor is the total amount of the secured debt on the joint mortgage unless there are special circumstances in which the person who has pledged the property is unable to exercise the right to demand a reimbursement against the debtor. Such a legal principle likewise applies to cases where some of the co-owned real estate is owned by the debtor and some other shares are owned by the other person who has pledged the property (see, e.g., Supreme Court Decision 2012Da

According to the statements in the evidence Nos. 2-1 through 27 of the evidence No. 2, it is recognized that each of the real estate of this case and the real estate of this case owned jointly by leapA and KimB, as shown in the list of real estate No. 2 on September 11, 2006, the maximum debt amount of 800,000,000 won, the debtor KimB, the mortgagee, and the mortgagee of the right to collateral security, has been set up as the joint collateral security on September 11, 2006. Since this falls under the case where some of the co-owned real estate is owned by the debtor, and some of other shares are owned by the surety, the total amount of the secured debt amount shall be borne by KimB in accordance with the above legal principles, the prior argument by leapA is without merit.

(4) 2/3 shares in the area of 00 square meters in 00 00 Eup/ 00 000-0 large scale of 000 square meters.

The Plaintiff asserted that the market price of 2/3 shares of 000 Gagri 160-3 large 958 square meters (hereinafter referred to as “GGGri real estate”), among GGri-ri 160-3 large 958 square meters, is KRW 108,254,000, but there is no evidence to acknowledge it. However, according to the evidence No. 29 and No. 3, PapA is the owner of 2/3 shares among Gri real estate, and the Korea Asset Management Corporation is the owner of 2/3 shares out of the market price appraisal conducted in the public sale process conducted by the Korea Asset Management Corporation with the goods management number of 000-000-00-000, the appraised value of 2/3 shares in Gri-ri real estate as of July 30, 2012 is confirmed as being similar at the time of November 4, 2010, which is the date of the instant monetary payment.

⑤ HHHH shares 200,000 shares

With respect to the Plaintiff’s assertion that the amount per share of 200,000 shares of HHH Co., Ltd. (hereinafter “instant shares”) owned by the Plaintiff is KRW 92 won, the Defendants asserted that the amount per share of the instant shares is equivalent to KRW 7,000.

Article 60 of the Inheritance Tax and Gift Tax Act (hereinafter "the Inheritance Tax and Gift Tax Act") provides that the value of inherited property and donated property shall be based on the market price as of the base date of appraisal, while the meaning of "market price" in paragraph (2) provides that "where transactions are freely conducted between many and specified people, such as expropriation price, public sale price, appraisal price, and so on as prescribed by Presidential Decree" shall be included, and where it is difficult to compute the market price under paragraph (3), the value assessed by the methods prescribed in Articles 61 through 65 shall be deemed the market price in consideration of the type, size, transaction circumstances, etc. of the relevant property. The main sentence of Article 49 (1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (hereinafter "the Enforcement Decree of the Inheritance Tax and Gift Tax Act") provides that "the value of the relevant net asset value per share shall be appraised at the rate of 6 months before and after the base date of appraisal (in cases of donated property, referring to the average net asset value per share within one year fixed and publicly notified by the Minister of Strategy and Finance."

Meanwhile, in the case of unlisted stocks with low market value, the transaction value shall be deemed the market value and the stock value shall not be evaluated based on the supplementary evaluation method stipulated in the Inheritance Tax and Gift Tax Act. However, since the market value means the objective exchange value formed through the general and ordinary transaction, in order to be recognized as the market value, the circumstances that can be seen as properly reflecting the objective exchange value at the date of donation should be acknowledged (see, e.g., Supreme Court Decision 2010Du26988, Apr. 26, 2012).

According to the fact-finding by the court of first instance with respect to the statement Nos. 13, 14, and 16 as well as the fact-finding by the JJ of the first instance court with respect to the instant shares at the time of the instant monetary payment. However, on May 24, 2010 within six months from the date of the instant monetary payment, leapA owned the instant shares at the time of the instant monetary payment. In addition, on November 5, 2010, 480,000 shares with priority for redemption conversion at KRW 5,000 per share, and on November 5, 2010, 795,000 shares with a priority for redemption at KRW 7,00 per share with a third party’s new shares acquisition, the said recognized amount cannot be deemed as the market price based on the purport of the entire statement as to Non-listed shares as stated in No. 199, Dec. 14, 201.

Therefore, it is reasonable to view that the value of the shares of this case owned by Yoon at the time of the instant monetary payment act is KRW 18,400,000 (=200,000 x 92).

(6) The proceeds from the sale of land and buildings owned by 00-Gu KK 51-7, 00-dong and its ground;

The Defendants asserted that, at the time of the instant monetary payment, leapA sold 51-7 land and its ground buildings in Seocho-gu, Seoul at the time of the instant monetary payment (hereinafter referred to as 'K-dong real estate') and held the proceeds therefrom, and thus, it should be included in active property. Accordingly, according to each description in the evidence Nos. 8-1 and 2, the fact that apA sold the KK-dong real estate owned jointly by leapA with KimB on June 22, 2010 to LLLLLLL LL LL LL LL LL corporation, but further, leA did not have any evidence to acknowledge that apA had the proceeds from the sale of the KK-dong real estate at the time of the instant monetary payment. Therefore, the Defendants’ aforementioned assertion is without merit.

7. Partial repayment amount for the instant taxation claims

The Defendants asserted that the amount equivalent to the above repayment should be included in the PapA’s active property at the time of the instant monetary payment act, since they repaid KRW 1,418,568,110 of the instant tax claim after the instant monetary payment act. However, there is no evidence to acknowledge that the PapA owned the above amount at the time of the instant monetary payment act. Therefore, the Defendants’ assertion is without merit.

(8) Total amount of active property

Ultimately, the sum of active properties at the time of the instant monetary payment act by leapA is KRW 6,309,69,697,787 (i.e., deposit claims of 1,196,567 won against DD Financial Investment Company + KRW 597,573,718 won in the value of EEE 501 + KRW 5,426,84,942 in the value of 1/3 equity of the instant real estate + KRW 265,682,560 in the value of 2/3 equity of the instant real estate + KRW 18,40,00 in the appraised value of the instant stocks).

B) Petty property

① This case’s taxation claims

As seen earlier, the Plaintiff’s taxation claim of this case was KRW 3,430,685,270 at the time of the monetary payment of this case.

(2) Joint and several liability obligations for financial institutions

According to Gap evidence 16, Gap evidence 17-1, Eul evidence 17-2, Eul evidence 11-2, and Eul evidence 12, at the time of the act of monetary payment of this case, leA is recognized that leA was liable for joint and several liability of 4,152,271,698 won for MM Co., Ltd. and NNNN Co., Ltd. for total 1,93,150,685 won.

(3) The debt of collateral security against the PPP.

According to the evidence Nos. 2-1 through 27, each of the real estate and the real estate indicated in the real estate list Nos. 1, 2, and 4 of the attached Table 1 as to the real estate indicated in the real estate list Nos. 1, 2, and 5 of the attached Table 2 as to each of the real estate listed in the real estate list No. 900,000,000, the maximum debt amount of May 19, 2009, the debtor KimB and MaA, the mortgagee Co., Ltd., the mortgagee Co., Ltd., the right to collateral security has been established. If there are several debtors, the debtor bears the obligation at an equal ratio (Article 408 of the Civil Act). Therefore, it is presumed that the KimB and MaA bears the obligation of 450,000,000 won each

④ Total amount of small-sized property

Ultimately, at the time of the instant monetary payment act by leapA, the sum of the small property at the time of the instant monetary payment amounting to KRW 9,966,107,653 (i.e., tax liability against the Plaintiff + KRW 4,152,271,698 + KRW 1,933,150,685 + KRW 450,000 + KRW 1,933,150,685 + KRW 450,000 for the secured debt against the PPP for the Plaintiff).

C) Sub-decision

Therefore, it is apparent in the calculation that the sum of the total assets of the obligor leapA exceeds KRW 6,309,697,787,00,000,000,000,000,000,000,000,000,000,000,000,00,00

3) Whether the act constitutes a fraudulent act

A) Relevant legal principles

If a debtor donated his/her own property to another person under excess of his/her obligation, such act shall constitute a fraudulent act, barring special circumstances (see, e.g., Supreme Court Decisions 97Da57320, May 12, 1998; 2006Da11494, May 11, 2006). However, in cases where the debtor’s repayment under excess of his/her obligation results in a decrease in the joint security of other creditors by repaying the debtor’s obligation to the specific creditor in accordance with the principal place of obligation, such repayment shall be made in particular with some of the creditors.

in principle, unless repayment has been made with intent to harm other creditors.

It does not constitute an act (see, e.g., Supreme Court Decision 2005Da62167, Jun. 15, 2006). However, it does not constitute an act.

creditor seeking revocation of a fraudulent act is a donation of money to the debtor's beneficiary.

In regard to the assertion, the beneficiary is asserting that it was received as repayment for the existing obligation.

not only constitutes a denial of the creditor's assertion, but also a denial of the above legal doctrine.

As can be seen, in order to recognize a fraudulent act as a gift, it should be proved that the said monetary act constitutes a gift, or that there are special circumstances such as the intent to prejudice the creditor, and the burden of proof for such act is on the part of the assertion of a fraudulent act (see, e.g., Supreme Court Decision 2005Da28686, May 31, 2007).

B) The nature of the instant monetary payment act

In light of the above facts and evidence No. 2-1, No. 9, No. 10, and No. 102-2, and No. 1, 2000, the Defendants paid KRW 400,000 to each of the Defendants by concluding a sales contract with CC Co., Ltd. and paying the down payment of KRW 800,00,000 to the Defendants under the name of KimB on Nov. 4, 2010, the Plaintiff asserted that the instant monetary payment was a donation to the Defendants. In light of the following circumstances, it is difficult to view the Defendants to have engaged in real estate investment business with 30,00,00,000,000 won from 20,000,000 won from 20,000,000 won from 20,000,000 won from 20,000,000 won from 20,000 won from 20,000,00 won.

C) Whether the instant monetary payment act constitutes a fraudulent act

다음으로 윤AA이 피고들에 대한 차용금 채무를 변제하기 위하여 한 이 사건 금전지급행위가 사해행위에 해당하는지에 관하여 살피건대, 위 인정사실 및 갑 제9호증, 을 제15호증의 각 기재에 변론 전체의 취지를 종합하여 알 수 있는 다음과 같은 사정, 즉 ① 피고들은 2009. 6.경 윤AA에게 위와 같이 합계 14억 5,500만 원을 송금해주었는바, 이에 대하여 이 사건 금전지급행위 이전까지 윤AA으로부터 이에 대한 원금 또는 이자를 변제받았다는 점에 대한 아무런 주장이나 증거가 없는 점, ② 앞서 본 바와 같이 윤AA은 피고들뿐만 아니라 여러 금융기관 등에 상당한 금액의 대출금 내지 연대보증 채무를 부담하고 있었는데 이 사건 부동산을 주식회사 QQQQ에 매각하고 그 대금의 일부로 받은 20억 원을 피고들에 대한 차용금의 상환에 사용하였던 점, ③ 김BB 또한 피고들이 이 사건 금전지급행위 직전에 자신들에 대한 채무를 갚지 않는 것에 대해 김BB에게 매우 화를 냈다고 진술한 점(을 제15호증), ④ 피고들은 윤AA의 장인, 장모로서 윤AA과 직접 금전거래를 하는 등 이 사건 금전지급행위 당시 윤AA의 채무초과상태를 잘 알고 있었던 것으로 보이는 점 등에 비추어 보면, 윤AA이 피고들에게 8억 원을 채무변제의 의사로 지급할 당시 당사자들 사이에 윤AA의 일반 채권자들 중 피고들에게만 변제함으로써 피고들과 통모하여 원고를 포함한 다른 일반 채권자들을 해할 의사를 가지고 변제를 한 경우에 해당한다고 봄이 상당하다.

The defendants defense that the defendants are bona fide beneficiaries, but there is no evidence to acknowledge that the defendants' bad faith is presumed to be beneficiaries, and that they are good faith. Rather, as acknowledged earlier, as long as the defendants conspired with leA in connection with the monetary payment of this case, they are beneficiaries of bad faith. Therefore, the defendants' defense is without merit.

(iv) revocation of fraudulent act and restitution to its original state;

Therefore, the act of monetary payment of this case must be revoked as it constitutes a fraudulent act. Accordingly, the defendants are obligated to pay to the plaintiff 400 million won each as well as damages for delay calculated by the rate of 5% per annum under the Civil Act from the day after the date of conclusion of the judgment of this case to the day of full payment.

3. Conclusion

Therefore, all of the plaintiff's claims of this case are justified, and the judgment of the court of first instance is just in its conclusion, and each of the defendants' appeals is dismissed. It is so decided as per Disposition.