Seoul Western District Court 2012 Gohap32287 ( October 13, 2013)

In spite of the formal repayment of loans and the re-issuance of loan contracts, the pledge has continued to exist to secure loan claims.

The second notification of the establishment of a pledge to the debtor of the instant membership was made within the meaning that the contents of the pledge were modified by the conclusion of the loan contract and the repayment of part of the secured debt, instead of the intention to newly establish a pledge upon the extinction of the existing pledge.

2013Na2013571 Revocation of Fraudulent Act

Korea

AA Energy Corporation

Seoul Western District Court Decision 2012Gahap32287 Decided June 13, 2013

December 12, 2013

January 9, 2014

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

A. The sales contract concluded on May 30, 201 with respect to golf membership entered in the separate sheet between the Defendant and BB companies shall be revoked within the scope of the OO members.

B. The Defendant shall pay to 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.

2. The total costs of the lawsuit shall be five minutes, and such three minutes shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The sales contract concluded on May 30, 201 with respect to golf membership entered in the separate sheet between the Defendant and BB companies is revoked. The Defendant shall pay to the Plaintiff 5% interest per annum from the day after the date of conclusion of the judgment of this case to the day of complete payment.

2. Purport of appeal

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

1. Facts of recognition;

A. Tax claims against the Plaintiff BB business corporation

1) BB corporation (hereinafter referred to as “B corporation”) was a corporation established for the purpose of preparing and manufacturing advertisements, and closed on August 19, 201.

2) On July 8, 2011, between June 8, 2011 and July 26, 2011, the head of the Yangcheon Tax Office under the Plaintiff’s control issued a decision of rectification to impose value-added tax and corporate tax on BB as of July 31, 201 with the due date for payment as of July 31, 201, on BB as shown in the following table, on the aggregate of the value-added tax and eight corporate tax for the period from January 2001 to July 11, 201, and BB did not pay the tax of KRW OO as of October 5, 201, which is the date of the instant lawsuit (hereinafter “each of the tax claims described below” in the Plaintiff’s Schedule”).

See Table 3 of the Court Decision

(b) Disposition and debt excess of BB enterprise;

1) On May 30, 201, BB Company and its representative director (CC) sold golf memberships (hereinafter “instant memberships”) to the same Defendant listed in the separate sheet to the same Defendant (hereinafter “instant sales contract”). Around that time, transfer of the name of the Defendant was made regarding the instant memberships.

2) At the time of the instant sales contract, BB was in a situation where the value of the small property exceeds the value of the positive property as follows.

[affirmative Property]

① Memberships of this case: OOO in the market

(2) BMFW motor vehicles: The market price OOO.

(3) Total amount: OOO.

[negative Property]

Tax liability of this case: OOOO in total of notified tax amount

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Gap evidence No. 8, Eul evidence Nos. 1 and 2 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The establishment of a fraudulent act;

(a)the existence of preserved claims;

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, there is a high probability that at the time of the fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of the claim, and that the claim should be established in the near future. In the near future, where a claim has been created as a result of its realization in the near future, the claim may also become a preserved claim (see Supreme Court Decision 2000Da37821, Mar. 23, 2001).

However, a corporate tax claim and value-added tax claim are naturally established without any separate procedure of the tax authorities or taxpayers when the taxable period expires (Article 21(1)1 and 7 of the Framework Act on National Taxes), and the tax amount, etc. are specifically determined and notified to the taxpayers. As such, the tax claim in this case was established on the date indicated in the above table, which is the transfer of the sales contract in this case, and there was a high probability that the tax claim should be determined based on the corresponding legal relationship in the near future, and the tax claim in this case was determined and notified to the BB company around July 11, 201, immediately after the sales contract in this case. Accordingly, the tax claim in this case can become the preserved claim to exercise the creditor's right of revocation as to the sales contract in this case.

Since the taxation claim of this case does not constitute a case of tax evasion or deduction by fraudulent or other unlawful means, it constitutes a period of 5 years under the Framework Act on National Taxes, the defendant asserts that the tax base and amount of value-added tax were already extinguished by the lapse of 10 years. According to Article 26-2 (1) of the former Framework Act on National Taxes (amended by Act No. 10405, Dec. 27, 201; hereinafter referred to as the "former Framework Act on National Taxes") for 10 years after the expiration of 20 years from the date of filing the tax base and amount of corporate tax or 10 years from the date of filing the revised tax base and amount of corporate tax, 20 years from the date of filing the revised tax base and amount of corporate tax, 10 years from the date of filing the revised tax base and amount of corporate tax, 20 years from the date of filing the revised tax base and amount of corporate tax, 10 years from the date of filing the revised tax base and amount of corporate tax.

(b) Fraudulent act;

BB was in excess of the obligation at the time of the instant sales contract, and thus, it constitutes a fraudulent act in which the BB company in excess of the obligation sells and commercialized the instant membership to the Defendant constitutes a fraudulent act that may reduce liability assets in relation to other creditors, including the Plaintiff, barring any special circumstance.

As seen earlier, in light of the fact that the Correction Investigation for BB was commenced from June 8, 201, the taxpayer subject to a tax investigation under Article 81-7(1) of the former Framework Act on National Taxes is required to notify the taxpayer of the tax items to be investigated, the period of investigation, the grounds for investigation, etc. ten days prior to the commencement of the tax investigation, and the fact that BB sells the membership of this case, which is the most active property having the largest value immediately before the commencement of the tax investigation, to the Defendant that BB and the representative director were the same, BB was aware that the conclusion of the sales contract of this case would prejudice the creditors, and furthermore, the Defendant’s bad faith

C. Determination on the defendant's good faith defense

The defendant defense to the effect that he did not know that the above contract was a fraudulent act at the time of the conclusion of the contract of this case, but it is difficult to recognize it only by the facts acknowledged earlier, and there is no other evidence to acknowledge it, and therefore the defendant'

3. Revocation of fraudulent act and reinstatement;

A. The parties' assertion

“The Plaintiff, at the time of the instant purchase contract, did not set any security right, etc. on the instant membership rights. The Plaintiff asserted that the Defendant’s purchase of the instant membership rights from BB company to take over the debt obligations of the EE Savings Bank (hereinafter “EE Savings Bank”) to the EE Savings Bank (hereinafter “E Savings Bank”) and set up a pledge on June 9, 201, after the instant purchase contract, the EE Savings Bank as to the instant membership rights, which was after the instant purchase contract, to set the maximum amount of debt of the EE Savings Bank as an OO, which was the market price of the instant membership rights, the entire sales contract of this case was concluded and sought for the revocation of the instant purchase contract and compensation for damages equivalent to the market price of the instant membership rights (However, the Plaintiff asserted that the restitution should be made by the method of returning original property, unlike its assertion or purport in the first instance trial, the Defendant had to seek compensation for damages for the value of the instant membership rights within the scope of the E Savings Bank’s market price before the instant purchase contract was established.

1) Legal principles

In a case where a sale and purchase contract for a certain real estate constitutes a fraudulent act, in principle, the sales contract is revoked and the order is issued for the restoration of the real estate itself, such as the cancellation of the registration of transfer of ownership. However, when the fraudulent act is performed between persons other than the mortgagee and the subsequent repayment, etc. with respect to the real estate on which the mortgage is established, the order to restore the real estate itself by cancelling the entire sale and purchase contract would result in the restoration of the portion which was not originally secured. Thus, the order to restore the real estate itself would not be in violation of fairness and fairness. Thus, in a case where the value of the real estate is entitled to seek for partial cancellation of the sale and purchase contract and compensation within the extent of the balance which remains after deducting the secured claim amount from the secured claim amount of the mortgage (see Supreme Court Decision 96Da23207, Oct. 29, 196, 200 remaining after deducting the secured claim amount, and thus, the same legal principle as above is not applicable to the establishment of a new security right of an obligor 2016.201.

2) Determination on the instant case

(5) The defendant, at the time of 205, has established a pledge right for 200 out of the total amount of loan 200 out of the total amount of loan 20 OE savings and 3 OE savings's loan 2. The defendant had already agreed to accept the debt 10 OE savings's loan 200, 2000,000 won for 20 OE savings's loan 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20.

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

1) Legal principles

In a case where a legal act on a certain real estate constitutes a fraudulent act, in principle, the cancellation of the fraudulent act and the cancellation of the registration of transfer of ownership shall be ordered. However, in a case where a fraudulent act is committed on real estate on which the mortgage is established, such fraudulent act shall be established only within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate. Therefore, in a case where the registration of creation of mortgage is cancelled by repayment, etc. after the fraudulent act, it would result in the cancellation of the fraudulent act and the restoration of the real estate itself would be restored to the portion which was not originally common creditors' joint security, and it would be against the fairness and order the cancellation of the fraudulent act and the compensation for damages within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate at issue. Therefore, even if only some of the mortgages were cancelled after the fraudulent act, the order for restitution following the revocation of the fraudulent act is established by deducting the secured debt amount of the real estate from the value of the real estate at issue at the time of closure of the fact-finding.

2) Determination on the instant case

The above facts are as follows: (a) before a fraudulent act was conducted with respect to the membership of the EE Savings Bank; (b) the Defendant established a new pledge on the OE Savings Bank on June 9, 201; and (c) the FF consented to the establishment of a new pledge on the OE Savings Bank on the OE Savings Bank; and (d) if the instant sales contract was revoked and an order was issued to recover the property itself, it would result in a violation of the fairness and fairness.

Therefore, the sales contract of this case is reasonable to cancel the price of the membership of this case within the scope of the balance obtained by deducting the amount of the secured debt of the above pledge from the value of the membership at the time of the closure of the trial as at the time of the closure of the trial, and order compensation for its value. According to the appraisal result of the first instance court appraiser Park Jong-○, the value of the membership of this case as at March 20, 2013, which is close to the date of the closure of the trial, can be recognized as constituting an OOO, and the above amount is presumed to be equal to the above amount as at the time of the date of the closure of the trial of this case. According to the above facts, the sales contract of this case shall be revoked within the scope of OOO(i.e., amount of the secured debt of the above pledge at the time of the date of the closure of the trial, and the defendant shall pay compensation for damages for delay to the plaintiff at the rate of 5% per annum from the following day after the date of the conclusion of the judgment.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted within the above recognized scope, and the remaining claims shall be dismissed as it is without merit. Since the first instance court has concluded a part of the appeal differently, the defendant's appeal shall be partially accepted, and the decision of the first instance court shall be modified as set forth in Paragraph 1 of the Disposition. It is so decided as per Disposition.