Whether the act of entering into a sales contract for the instant real estate constitutes fraudulent act

The real estate sales contract of this case is the sale of the sole property to an unfair price, and is recognized as a fraudulent act by the intention of the death.

Article 30 of the National Tax Collection Act

Daejeon High Court 2019Na15166 Revocation of Fraudulent Act

Korea

AAA and one other

December 5, 2019

December 19, 2019

1. All appeals by the Defendants are dismissed.

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

1. Purport of claim

A. The sales contract concluded on August 25, 2017 between the Defendants and BB on each of the 1/2 shares in the real estate listed in [Attachment 1] List shall be revoked.

B. The Defendants shall pay to the Plaintiff 217,50,000 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim against the defendants is dismissed in entirety.

1. Basic facts

A. The Plaintiff’s taxation disposition on BB

1) BBB는 1998. 4. 6.부터 2017. 10. 10.까지 'QQ'이라는 상호로 농업용 비닐하우스 철재 파이프 및 부속품 제조 판매업 등을 영위하였다.

2) On June 28, 2017, the PPP regional tax office under the Plaintiff’s control started a tax investigation with respect to BB and demanded BB to submit data on the borrowed account. On August 8, 2017, BB issued a notice of the results of the tax investigation that “B would be notified of the income tax, value-added tax, etc. of KRW 1,802,583,971” on September 7, 2017, on the ground that the EE industry’s cash sales amount was under-reported by means of a non-business account or borrowed-name account.” On September 7, 2017, BB issued a corrective disposition of global income tax of KRW 1,096,725,810, earned income tax of KRW 47,677,610, value-added tax of KRW 658,09,000 for the year 20 through 2016.

3) BB did not pay the Plaintiff global income tax amounting to KRW 1,702,797,630 (including additional 140,658,060) in total, including KRW 1,195,431,010 and value-added tax amounting to KRW 507,36,620, until the filing of the instant lawsuit.

B. Sales contract between the Defendants and BB

1) Defendant AA is the spouse of BB, and Defendant CCC is the spouse of BB.

2) On August 28, 2017, the Defendants completed the registration of ownership transfer with respect to each of 1/2 shares of each of the real estate listed in the [Attachment 1] List owned by BB on August 28, 2017 (hereinafter “instant real estate”). The grounds for registration are the sales contract of KRW 435,000,000, total purchase price made between the Defendants and BB on August 25, 2017 (hereinafter “instant sales contract”).

3) On September 18, 2017, Defendant AA made a loan of KRW 250,00,000,00,000 to the SSB, with the collective security interest of machinery and equipment (referring to machinery and equipment used by B for business in the EE industry operated by B in the instant real estate; hereinafter referred to as “the instant machinery and equipment”), such as the instant real estate and the mincing machines, CS presses, wave presses, lines, smugglings, and air defenses installed on the instant real estate, and then borrowed KRW 250,00 on September 135, 200, and Defendant AA paid KRW 300,000 on September 26, 2017, respectively.

4) On October 10, 2017, BB filed a report on the closure of the business operation of the EE industry. However, on August 1, 2017, Defendant AA had registered the instant real estate located in the EE industry as the location of “M” after having registered the business with the trade name of “M”, which was the location of the instant real estate located in the EE industry, and is engaged in business such as the EE industry by using the same signboard, telephone number, workers as that of the BB management, and making transactions with the major business partners of the E industry.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to Gap evidence 5, Gap evidence 7 to Gap evidence 9

Nos. 2-1 through 16-5, Eul evidence No. 18, Eul evidence No. 22, and Eul evidence No. 24

Each entry and the purport of the whole pleadings in Articles 1 through 3;

2. Summary of the parties' arguments

A. The plaintiff

Since the instant sales contract was concluded by BB by selling real estate in excess of its obligation, it shall be revoked as it constitutes a fraudulent act. However, since the establishment of a collateral security right against Defendant AA as the debtor with respect to the instant real estate on September 14, 2017 after the conclusion of the instant sales contract, it is impossible or considerably difficult to return the original property, the Defendants, the beneficiaries of the instant fraudulent act, are obligated to return the amount equivalent to the value of the instant real estate to the Plaintiff, which has a tax claim against BB, as restitution of revocation of the fraudulent act. Meanwhile, it is clear that the joint collateral value as of the date of closing the argument of the instant sales contract is more than KRW 435,00,000 as the purchase price under the instant sales contract, the Defendants, as equivalent compensation, shall pay the Plaintiff KRW 217,00,000 corresponding to one-half of the said amount.

B. The Defendants

1) BB sold the instant real estate to the Defendants in accordance with the market price appraisal for the purpose of paying taxes of approximately KRW 1.8 billion under the circumstances in which the Defendants would pay taxes, etc.; from the proceeds of sale received from the Defendants, BB paid KRW 58,02,228 in total amount of wages and retirement allowances as stated in the attached Table 2’s payment details; and paid KRW 323,905,50 in total of national and local taxes, such as the attached Table 3’s payment details of taxes. Accordingly, the instant sales contract was concluded at a reasonable price for the repayment of the existing obligations, and it does not constitute fraudulent act, and it does not constitute a beneficiary of bad faith as the Defendants did not have any intention to commit a fraudulent act.

2) Even if it is difficult to deny the fraudulent act of the instant sales contract, it is difficult to regard the Plaintiff as a fraudulent act, apart from the fact that it can be a fraudulent act against other general creditors within the scope of KRW 323,905,50 paid as national and local taxes. Thus, the instant sales contract should be revoked only within the scope of KRW 111,094,50 (=435,000,000- KRW 323,905,500, 500, excluding the said money).

3. The occurrence of right to revoke the fraudulent act;

(a)the existence of preserved claims;

1) Relevant legal principles

Although it is required that a claim that can be protected by the obligee’s right of revocation has arisen prior to the commission of an act that can be viewed as a fraudulent act in principle, it is highly probable that at the time of the fraudulent act, there has already been legal relations that serve as the basis for the establishment of the claim, and that the claim should be established by the near future legal relations. In cases where a claim has been created by realizing the probability in the near future, 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).

2) Determination

On June 28, 2017, the Plaintiff started a tax investigation on BB and requested borrowed account data. On August 8, 2017, the Plaintiff pre-announceed BB BB to impose income tax and value-added tax on a total of KRW 1,802,583,971, and actually rendered a disposition of global income tax, earned income tax and value-added tax rectification on September 7, 2017 as seen earlier. The income tax and value-added tax were established upon the expiration of the taxable period [Article 21(1)1 and 7 of the former Framework Act on National Taxes (amended by Act No. 16097, Dec. 31, 2018); BB returned taxes by filing a final tax return on global income and value-added tax on 2013 through 2016; and the Plaintiff’s tax claim was notified of the results of the tax assessment that it would have not been established on 27.28, 2017.

B. Whether to recognize the intent to commit fraudulent acts and to injure himself/herself

1) Relevant legal principles

The act of a debtor, in excess of his/her obligation, changing the sale of real estate into money easily for consumption, is a fraudulent act against a creditor, barring any special circumstance where the sale thereof takes place at a reasonable price to appropriate for repayment to some creditors (see, e.g., Supreme Court Decisions 2009Da67252, Dec. 10, 2009; 2010Da41850, Jul. 26, 2012). Furthermore, in a lawsuit seeking revocation of a fraudulent act, the beneficiary is presumed to be malicious, and thus, the beneficiary is liable to prove his/her good faith in order for the beneficiary to be exempted from his/her liability. In such cases, whether the beneficiary was bona fide or not shall be determined reasonably in light of logical and empirical rules and experience, comprehensively taking into account the relationship between the debtor and the beneficiary, the details and motive leading up to the act of disposal between the debtor and the beneficiary, whether there are reasonable and objective materials supporting the act of disposal, and other circumstances after the act of disposal, etc. (see, e., Supreme Court Decision 2017Da197.).

2) 위 '1. 기초사실' 및 앞서 든 각 증거와 갑 제6호증의 기재에 변론 전체의 취지를 더하여 보면, BBB는 이 사건 매매계약을 체결할 당시 적극재산으로 ① 이 사건부동산(이 사건 계약에서 이 사건 부동산을 매매대금 435,000,000원으로 정하여 매도하였다), ② 가액 45,156,150원1) 상당인 **도 **군 **면 **리 산** 토지, ③ 가액 23,636,364원2) 상당인 00시 00면 00리 000 지상 @@휴양콘도미니엄 00동 00층 제00호 및 ④ 이 사건 부동산의 지상에 설치된 기계・기구 및 EE산업의 영업권으로, 합계 약 503,792,514원 상당(= 435,000,000원 + 45,156,150원 +23,636,364원)과 위 ④ 재산을 보유한 반면, 소극재산은 원고에 대한 조세채무에 한정하여 보더라도 가액을 산정할 수 있는 위 적극재산 합계액의 약 3배 이상에 해당하는 1,802,583,910원(2017. 9. 7. 경정처분에 따른 고지세액 기준으로 종합소득세 1,096,725,810원 + 근로소득세 47,777,610원 + 부가가치세 658,080,490원) 상당을 부담하였으므로, BBB가 채무초과 상태에 있었음은 명백하다(피고들 역시 BBB의 채무초과 여부에 대하여는 특별히 다투고 있지 아니하다).

3) In light of the legal principles as seen earlier, comprehensively taking account of the following circumstances, which can be known from the facts acknowledged by the statements in subparagraph 1-1 and 2 of the above “1. Basic Facts” and the aforementioned evidence and the facts indicated in subparagraph 1-2, BB’s ownership of the instant real estate, etc. against the Defendants while BB exceeded its obligation.

1) The standard market price (=the officially assessed individual land price per square meter publicly announced on May 31, 2017 x the area of 2,490 square meters x 18,135 square meters)

2) The instant sales contract sold on September 28, 2017 includes an act of selling and selling real estate owned by the obligor and changing it into money easily for consumption, and constitutes a fraudulent act. On the contrary, it is difficult to deem that there was a special circumstance where the sale of the instant real estate was conducted at a reasonable price in order to meet the legitimate repayment to some creditors.

A) Upon examining the facts that Defendant B had been found to have committed the instant sales contract with Defendant BB, it was found that the sales contract for the instant real estate was concluded with Defendant B, and that Defendant B had been entered in the sales contract for the instant real estate on August 25, 2017, and thus, Defendant B borrowed money from the financial institution as joint collateral with the instant real estate, and that it was difficult for the Defendants to view that the sales contract for the instant real estate was established for the purpose of the instant sales contract to have been executed for the same purpose as that of the instant real estate, and that the sales contract for the instant real estate was not submitted to the court on September 25, 2017. Meanwhile, it was difficult for Defendant BB to view the sales contract for the instant real estate as the sales contract for the instant real estate to have been executed on the same date as that of the instant sales contract for the instant real estate, and that it was difficult for the Defendants to use the instant real estate as the sales contract for the instant real estate at the time of the instant business establishment and its operation.

B) According to the evidence Nos. 1 and 2, KK corporation: (a) assessed the value of the instant real estate as of August 4, 2017 as at KRW 440,534,420; (b) LLL corporation assessed the value of the instant real estate as at August 3, 2017 as at KRW 430,554,420; and (c) the sales price under the instant sales contract is similar to the average value of the above two appraised values of the instant real estate. However, considering that the object of the instant sales contract was not only the instant real estate, but also the instant machinery and appliances installed on its ground (as at the time of establishing a joint mortgage on the instant real estate, the sum of the prices of the instant machinery and appliances stated in the list submitted to the registry as one of the instant machinery and appliances provided as at the time of establishing a sales contract for the instant real estate, and thus, it is difficult to view the Defendants’ sales contract as at KRW 216,200,00) and value-added value of the instant real estate as its business establishment.

C. On the other hand, it is difficult to view that the Defendants’ sales contract was concluded on August 5, 2017 and September 5, 2017 with the Defendant’s previous employees, and that the Defendants were obligated to pay the amount of KRW 30,20,00 (=15,000 + 10,000) for the total amount of wages paid for 70,80,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00) were 7,07,000.

D) The fact that BB paid national and local taxes equivalent to KRW 323,905,50 as of September 29, 2017 between September 29, 2017 and October 11, 2017, as indicated in the separate sheet No. 24-2 and 3 is as above. However, considering that BB’s payment of capital gains tax and local income tax paid on October 10, 2017 by the creditors on September 25, 2017, as indicated in the separate sheet No. 3, it is not reasonable to deem that BB received general property from the creditors of the instant case for the purpose of preserving the Defendants’ payment of taxes to be shared by the Plaintiff’s creditor, as otherwise alleged in the separate statement No. 24-2 and 3, it is difficult to view that BB was separate from the Defendants’ payment of taxes to be made on September 30, 2017 (see, e.g., Supreme Court Decision 2017Da3628, supra.).

E) The Defendants asserted to the purport that the instant sales contract was bona fide since they concluded the instant sales contract with a reasonable purchase price determined based on the appraised value of the instant real estate. However, as seen in the foregoing paragraph (b), it is difficult to view the instant sales price as a reasonable price, and the evidence submitted by the Defendants alone is insufficient to find that the Defendants did not know that they were harmful to the creditors, and there is no other evidence to acknowledge this (as seen earlier, there is sufficient reason to acknowledge the Defendants’ intent of deception in light of the relationship between BB and the Defendants, the terms of the contract, including the time and method of the conclusion and payment of the instant sales contract, and the content of the

C. Sub-committee

The Plaintiff, a creditor of BB, may cancel the instant sales contract corresponding to the fraudulent act concluded between BB and the Defendants, which is the debtor, and seek restitution from the Defendants, the beneficiary.

4. Methods and scope of reinstatement;

(a) Methods for reinstatement;

Where a third party acquires a mortgage, superficies, etc. after a fraudulent act, the creditor may seek compensation equivalent to the value thereof against the beneficiary instead of returning the original object, barring special circumstances, such as that the beneficiary may restore the subject matter to its original state without any restriction on mortgage, etc. (see, e.g., Supreme Court Decision 2000Da57139, Feb. 9, 2001).

As examined in the above '1.’ As seen in the “basic facts, the Plaintiff may seek compensation equivalent to the value of the instant real estate against the Defendants, since it was acknowledged that the right to collateral security was established with respect to the instant real estate on September 18, 2017 after the instant contract was concluded, and thus, constitutes a case where the return of the original property is impossible or considerably difficult.

B. Scope of compensation for value

As seen earlier, the amount of the Plaintiff’s preserved claim is KRW 1,702,797,630, and the amount of the Plaintiff’s preserved claim is equivalent to KRW 435,00,000, which is at least the amount equivalent to the sales price of the instant real estate at the time of the conclusion of the instant sales contract, and the Defendants acquired each of the instant real estate 1/2 shares. As such, the Defendants acquired profits of KRW 217,50,000, which is 1/2 of the joint collateral value of the instant real estate. Accordingly, the Defendants are liable to pay to the Plaintiff damages for delay calculated at the annual rate of KRW 5,00,00, which is equivalent to the profits acquired by the conclusion of the instant sales contract within the scope of the preserved claim, from the day following the date of the conclusion of the instant judgment to the day of full payment.

5. Conclusion

Therefore, the plaintiff's claim for revocation of the fraudulent act and restitution against the defendants of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is just and it is dismissed in its entirety as there is no ground for appeal by the defendants. It is so decided as per Disposition.