Whether it constitutes a fraudulent act

The act of entering into a sales contract with the defendant as to the real estate of this case, which is the only property under tax liability, and making a registration of ownership transfer to the defendant on that ground constitutes a fraudulent act that reduces the joint security of creditors such as the plaintiff.

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

1. The defendant's appeal is dismissed.

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

1. Purport of claim

Defendant and Nonparty 00 (resident registration number):*************, address: Guro-gu Seoul Metropolitan Government 1269Haz apartment 000 Haz apartment 000 dong,000) cancelled the sales contract concluded on October 18, 2004 between the Defendant and Nonparty 00 (resident registration number): The sales contract concluded on October 19, 2004 is cancelled; the Defendant will implement the registration procedure for cancellation of ownership transfer registration completed on October 19, 2005 as of the above real estate.

2. Purport of appeal

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

1. Basic facts

The following facts are not disputed between the parties, or may be recognized by comprehensively taking into account each of Gap evidence of 1 to 6, Gap evidence of 13 to 19 (including each number):

A. From August 9, 2004 to August 17, 2004, the Plaintiff discovered the omission of the value-added tax and global income tax by filing a return on the omission of part of the sales for 2002 and 2003, etc. in the local verification process of the value-added tax on '00' operated by Nonparty 00 from August 9, 2004 to August 17, 2004. The Plaintiff issued a tax disposition equivalent to the omitted tax amount as to 00 until November 18, 2004 with the Ministry of Government Administration and Home Affairs, and then issued a tax disposition equivalent to the omitted tax amount as to 00 of the sales for 2001. Each of the above taxation dispositions was served to 00 around that time, and the global income tax, wage and salary income tax, and value-added tax were added to the total of 49,94,01, and each of the above tax liabilities was established on July 19, 2004.

2. The date when the liability for tax payment in the list is created shall be listed in each column.

B. On October 18, 2004, 000 entered into a sales contract on the real estate listed in the list (6,000 won per square meter of the officially announced land price as of June 30, 2004; hereinafter "real estate in this case") on the attached Table 1, which is the only property of the Defendant, who is a Dong resident, and the Defendant, as of October 19, 2004, entered into a sales contract on the real estate as of June 30, 200, and the Defendant completed the ownership transfer registration based on the above sales contract (hereinafter "the ownership transfer registration of this case") with the Jincheon District Court No. 16045 on October 19, 2004.

C. Meanwhile, among the lawsuit in this case, 00, the above tax amount of KRW 240,00,000 among the above tax evasion amount of March 30, 2006 and KRW 451,00,000,000 as of April 3, 2006 and the tax liability of KRW 48,353,850 as of August 1, 2006 (49,994,017-451,00,000,000 = 48,353,850,00 as of August 1, 2006 or the Plaintiff is the person whose tax liability of KRW 48,353,850 as of August 1, 206 is the person whose tax liability is 48,353,850).

2. Determination

(a)the existence of preserved claims;

In principle, a claim that can be protected by a creditor's right of revocation should have arisen before doing a juristic act for the purpose of property right with the knowledge that the debtor would harm the creditor. However, there is a high probability that the legal relationship which is the basis of establishment of the claim has already been established at the time of the juristic act, which is based on the near future legal relationship, and where a claim has been created in the near future with its probability, the claim may also become a preserved claim (see, e.g., Supreme Court Decisions 2000Da37821, Mar. 23, 2001; 200Da64038, Nov. 26, 2002). According to the above facts-finding, the plaintiff's tax claim should be deemed as having been extinguished by 400 won prior to the closing of argument in 2002, 2003, and it can be deemed that the plaintiff's taxation claim in this case had yet been established by 400 won prior to the closing of argument in this case.

B. Establishment of fraudulent act

According to the above facts, a sales contract for the real estate of this case, which is its sole property under the above tax liability, is concluded with the defendant, and the act of completing the registration of ownership transfer for this reason to the defendant is an act of reducing the joint security of creditors such as the plaintiff, etc., and the debtor, 000, was known that the above sales contract would prejudice the plaintiff, who is the creditor, due to the above sales contract, and the defendant, who is the beneficiary, was presumed to have known of such circumstances. Thus, the sales contract for the real estate of this case between 00 and the defendant, should be revoked, and the defendant is obligated to implement the procedure for cancelling the registration of ownership transfer of this case to the plaintiff by restoring to its original state.

C. Judgment on the defendant's assertion

In regard to this, the defendant argued that the real estate in this case was owned by 000, the father of the defendant, but 000 was entrusted only to 000, but the defendant, who graduated from the Agricultural High School, terminated the above title trust agreement and donated the above real estate to the defendant at the end of September 2004 and completed the registration of ownership transfer directly to the defendant for convenience. The 000 at that time had been under legal dispute between Park Sungcheon and the defendant, and therefore, the sales contract on the real estate in this case between the defendant and the defendant did not constitute a fraudulent act. However, although the 000 was under title trust, it is difficult to believe that the statement in Eul evidence No. 4 and the Kim Jong-man of the trial witness in this case, each testimony was already cultivated by the defendant, in light of the defendant's residence and occupation, etc., and there is no evidence to acknowledge it differently. Thus, the defendant's assertion that the defendant's assertion is groundless.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.