Where a third party has acquired rights, such as mortgage or superficies, over the object after a fraudulent act;

Where a third party acquires a mortgage, superficies, etc. on the subject matter after a fraudulent act, the creditor may seek damages equivalent to the value thereof against the beneficiary instead of returning the subject matter, unless there exist special circumstances, such as that the beneficiary may restore it to the state where there is no limit on the mortgage, etc.

The contents of the decision shall be the same as attached.

1. At the request of the Plaintiff changed from the trial,

A. The sales contract concluded on November 17, 2006 with respect to the real estate listed in the separate sheet between the defendant and the highest head of ○ shall be revoked within the limit of 509,223,140 won.

B. The defendant shall pay to the plaintiff 509,223,140 won with 5% interest per annum from the day following the day when the judgment of this case became final to the day of complete payment.

2. All costs of the lawsuit shall be borne by the defendant.

It is the same as the order (the plaintiff sought restoration from the first instance court to the original state following the revocation of fraudulent act, and changed the purport of the claim from the trial to the equivalent compensation).

1. Basic facts

가. 최○호는 2006. 4. 3.경부터 평○시 이○동 ○92-4 소재 ▢▢타워 1층에서 사행 성게임장 '바다이야기'(이하 '이 사건 게임장'이라고 한다)를 운영하여 왔는데, 이 사건 게임장에서 제공하는 상품권 매출을 누락하여, 2005년 제2기분의 부가가치세를 신고하지 아니하고, 2006년 제1기분의 부가가치세를 과소신고하였다.

Accordingly, the head of Pyeongtaek District Tax Office under the Plaintiff’s control conducts a field investigation on the second term portion of the game site in 2005 and the value-added tax on the low 111 percent in 2006 on the game site in November 2006 according to the instruction of the higher government office, and then on February 2007, the tax assessment of value-added tax was notified to the largest head of the tax office as follows. The maximum head of the tax office did not pay the tax, and on May 4, 2009, the tax amount in arrears under the highest head of the tax office reaches 509,223,140 won (hereinafter “instant tax claim”).

B. As of October 1, 2004, the maximum number of ○○○○○○○○, 09-3,000,000,000 per annum 69-5,000,157 square meters (hereinafter referred to as “each land before the division”). On each land before the division, the registration office of Suwon District Court was completed as of October 1, 2004, with the registration office of the head of Suwon District Court No. 4505 on each of the land as of October 1, 2004 (hereinafter referred to as “the registration of the establishment of each of the instant land”).

C. On November 206, 2006, No. 40878, Nov. 17, 2006 (hereinafter “the instant sales contract”) was completed on November 17, 2006, the registration of transfer of ownership was completed on the part of the Defendant, who was the money in the form of a lump sum (the largest ○○ number of ○○○).

(d)The registration of the establishment of a mortgage in the vicinity of the instant case was revoked on December 26, 2006 at the same registry office as the date of the termination on December 26, 2006.

E. Meanwhile, on May 16, 2008, the land category of 69-3 square meters, 197 square meters in Ansan-si Seo-si, Ansan-si, which was changed to 197 square meters in risan-do-si, Ansan-si. The registration conversion was made on May 16, 2008 with 419-8 forest land and 5,17 square meters in risan-7 square meters in risan-si, Ansan-si.

On May 16, 2008, 419-8 5,173 square meters in the same Ri were divided into 419-8 3,956 m2 in the same Ri, 419-9 m21 m21 m2 in the same Ri, and 419-10 m2 in the same Ri.

On May 27, 2008, 419-8, 3,956 square meters in the same Ri 419-8, 3,956 square meters in the same Ri 419-8, 3,956 square meters in the same Ri 419-9, 721 square meters in the same Ri 419-9, 721 square meters in the same Ri 419-9, 721 square meters in the same Ri 427 May 27, 2008, each land category was changed, and 419-10, 349 square meters in the same Ri 419-10 square meters in the same Ri 349 square meters in the same Ri on May 27, 2008, and 419-147 square meters in the same Ri 419-147 square meters in each land category changed to 141-17 square meters in the same Ri 27 May 27, 2008.

바. 최○호는 이 사건 매매계약 당시 적극재산으로 이 사건 각 토지를 포함하여 안 성시 당왕동 534 대우아파트 104동 1103호(시가 1억 2，400만 원 상당) , 안○시 금○면 현○리 452 답 1，355㎡(공시지가 15，853，500원)를 보유하고 있었고, 소극재산으로는 이 사건 조세채무 440，180，544원, 위 대우아파트에 설정된 근저당권(근저당권자 ▢▢생명 보험주식회사, 채무자 최○호, 채권최고액 6억 5，000만 원)의 피담보채무 5，000만 원 상당, 이 사건 각 토지에 설정된 근저당권의 피담보채무 3억 5，000만 원 상당이 있었는바, 최○호가 이 사건 각 토지를 피고에게 매도함으로써 최○호는 채무초과 상태에 빠지게 되었다.

[Reasons for Recognition] Facts without a partial dispute, Gap 1 through 8 (including each number), Gap 10-1 to 3, Gap 12-1 to 4, and the response of order for submission of financial data by the euthansung Agricultural Cooperative

2. Determination as to the cause of action

A. Formation of preserved claims

1) On the basis of the above facts, ○ is liable for the Plaintiff to pay the Plaintiff tax liability 509, 223, 140, and delay damages.

2) Meanwhile, in principle, a claim that may be protected by the obligee’s right of revocation ought to arise before an act is performed, but there is a high probability that at the time of a fraudulent act, there exists a legal relationship which is the basis of the establishment of a claim, and that the claim is to be established in the near future, and in a case where a claim has been established in the near future with its probability, the claim may also become a preserved claim of the obligee’s right of revocation (see Supreme Court Decision 2000Da37821, Mar. 23, 2001).

3) Examining the instant tax claim, the duty to pay value-added tax is fixed at the time of filing a return on the tax base and amount of tax to the competent authority; however, in cases where the government decides or decides the tax base and amount of tax due to an error or omission in the details of the return, etc., the duty to pay taxes becomes final and conclusive at the time of determining the tax base and amount of tax. Therefore, the duty to pay value-added tax becomes final and conclusive at the time of filing

However, in light of the following circumstances, such as Gap evidence 9-1 to 11, Gap evidence 10-1 to 3, the plaintiff's evidence 10-1 to 3, the plaintiff had knowledge that the game of this case may be additionally imposed value-added tax by operating the game of this case and reporting false purchase and sales volume, and the above false report is made more than the date of the sales contract of this case. ② The above false report is made more than before the date of the sales contract of this case, the legal relationship that may cause tax liability has already been formed, and ③ since early 2006, the illegal business of the "sea", which is the head of the speculative game of this case, has continuously become social, and the press report and the control of the work division have continuously become the basis for establishing the tax claim of this case at the time of the sales contract of this case. Since then, in light of the fact that the above tax claim of this case has actually occurred, the claim of value-added tax of this case is subject to creditor's right to revocation.

In addition, when a creditor exercises his/her right of revocation, in principle, he/she cannot exercise his/her right of revocation in excess of his/her claim amount, and at this time, the creditor's claim amount includes interest or delay damages incurred after the fraudulent act and the time of closing argument in fact-finding proceedings (see, e.g., Supreme Court Decision 2000Da66416, Sept. 4, 2001). Meanwhile, the additional dues under Articles 21 and 22 of the National Tax Collection Act are the kind of incidental tax imposed as a person with a delayed interest in the unpaid portion if national tax is not paid by the due date, and if national tax is not paid by the due date without the due date of payment by the due date without the due date of confirmation procedure by the person with the right of taxation, it is naturally generated pursuant to Articles 21 and 22 of the same Act and its amount

Therefore, as long as the taxation claim in this case is recognized as the preserved claim of the obligee’s right of revocation, the amount of the taxation claim shall include the additional dues incurred after the fraudulent act and until the closing of argument in fact-finding proceedings. Therefore, the additional dues imposed on the above taxation claim shall also be

B. Whether the fraudulent act is constituted

As seen earlier, the fact that ○○ Head Office sold each of the instant lands to the Defendant, and thus, the act of entering into a sales contract on each of the instant lands with the Defendant, the maximum amount of money, constitutes a fraudulent act with the knowledge that the act would compromise the creditors’ joint security, including the Plaintiff, and thus, constitutes a fraudulent act with the knowledge that it would prejudice the creditors, barring any special circumstances. Meanwhile, the Defendant, the beneficiary, is presumed to have been in bad faith. Accordingly, the Plaintiff may cancel the sales contract against the Defendant for each of the instant lands and seek restitution to its original state in order to preserve the instant tax claim against the maximum amount of ○ Head.

(c)the defendant's master and judgment;

The Defendant, and ① at the time of the instant sales contract, the instant tax claim had been established, and ②, at the time of the purchase of each of the instant land, the maximum ○○, etc., borrowed KRW 300 million as the purchase fund from Kim Tae, etc. at the time of the purchase of each of the instant land and sold each of the instant land to the Defendant for the purpose of reimbursing the loan. The Defendant, after considering such circumstance, paid KRW 350 million, out of KRW 700 million, directly to Kim Tae, etc., and settled the remainder of the purchase price in the form of acquiring the secured debt amount ( KRW 350,00,000) of each of the instant land established on each of the instant land. Accordingly, the instant sales contract was normally concluded, and at the time, there was no intention to harm the Defendant

According to the statements and images of evidence Nos. 1 through 25 (including each number), the defendant filed a complaint with the maximum number of 0,000,000 won on November 17, 2006. The defendant newly constructed a building on the land listed in the separate sheet No. 2 after the defendant purchased each of the land of this case, and the 0,000,000 won on the ground of the land of this case under title trust with the maximum number of 0,00,000,000 won. The 0,000,000, in collusion with the maximum number of 0,000, and the 0,000,000 won, were suspected of embezzlement, etc. (including each of the numbers), and the defendant made a complaint with the purport that the land of this case was disposed of at will to the defendant at will (hereinafter referred to as "the complaint of this case"). The 0,000,000 won was to own each of the land of this case, and the 0,00,00,00.

However, as seen earlier, the fact that the legal relationship which forms the basis for establishing the instant tax claim was already formed at the time of the instant sales contract is as follows. As to the fact that ○○○ borrowed KRW 300 million from Kim Tae, etc. as the fund for purchasing each of the instant land, there is no evidence to acknowledge otherwise, except the defendant and the lowest ○○, and Kim Tae-tae’s statement. In the instant accusation case, ○○ lent the name of the owner of each of the instant land to Kim Jong-Gyeong, while in the instant case, he voluntarily changing the statement by stating that ○ himself is the owner of each of the instant land and borrowing the purchase fund from Kim Tae-tae, etc., and the defendant and maximum ○ was not aware that the Defendant would harm the general creditors including the Plaintiff due to the instant sales contract. Ultimately, it is difficult to acknowledge that the Defendant was unable to reverse the Defendant’s bad faith, making it difficult to reverse the Defendant’s assertion without merit.

D. Method and scope of revocation of fraudulent act

1) If a creditor’s revocation of fraudulent act and a claim for restitution are acknowledged, the beneficiary is obligated to return the subject matter of the fraudulent act to the debtor as restitution, and if it is impossible or considerably difficult to return the subject matter of the fraudulent act, the beneficiary is obligated to compensate for the amount equivalent to the amount of the subject matter of the fraudulent act as a performance of duty to restore if it is impossible or considerably difficult to return the subject matter. Here, in cases where the return of the subject matter is impossible or considerably difficult, it refers not to cases where the return of the subject matter is not simply absolute and physically impossible, but to cases where it is impossible to expect the realization of the performance in light of social experience rules or transaction norms. Thus, in cases where a third party acquires rights such as mortgage and superficies after the fraudulent act, the creditor may seek compensation against the beneficiary in lieu of the return of the subject matter (see, e.g., Supreme Court Decision 200Da57139 decided Feb. 9, 201).

In addition, in a case where the right to collateral security has been established on a real estate that was transferred as a fraudulent act by a debtor and the compensation for value has to be made, the liability property provided to the common creditors' joint collateral among the real estate remains after deducting the secured debt amount. Thus, in a case where a fraudulent act is revoked, the amount of compensation for such fraudulent act shall be calculated by deducting the secured debt amount from the value of the real estate at the time of closing argument of fact-finding court, which is the time of revoking the fraudulent act (see, e.g., Supreme Court Decision 2003Da60891, Oct. 14,

2) According to the evidence No. 8-1 to No. 5 of this case, on December 22, 2006, which was after the date of the conclusion of the sales contract of this case, the registration of creation of a mortgage over each of the land of this case was newly completed on December 22, 2006. Barring any special circumstance, the plaintiff may seek compensation for value from the defendant, unless there are special circumstances. However, since the registration of creation of a mortgage over each of the instant land after the sales contract of this case was revoked, the plaintiff may seek compensation for value after cancelling the fraudulent act within the extent of the balance obtained by deducting the secured debt amount of each of the instant land from the value of each of the instant land.

나아가 가액배상의 범위에 관하여 보건대, 갑 11호증의 1 내지 5의 기재에 의하면, 당심 변론종결일에 가까운 2008. 10. 31.을 기준으로 이 사건 각 토지의 시가 는 합계 875，450，450원(= 1，861，650원 + 751，640，000원 + 46，216，100원 + 66，310，000원 + 9，422，700원)인 사실을 인정할 수 있고, 당섬 변론종결일 당시의 가액은 적어도 위 875，450，450원일 것으로 추인되므로, 피고가 원고에게 배상하여야 할 가액은 φ 위 875，450，450원에서 이 사건 근저당권에 기한 피담보채무액 3억 5，000만 원을 공제한 금액 525，450，450원(= 875，450，450원 - 3억 5，000만 원)과 @ 이 사건 피보전채권액 509，223，140원 중 적은 금액인 509，223，140원이다[피고는, 이 사건 매매계약 이후 이 사건 각 토지의 가격이 크게 상승하였으므로, 당심 변론종결일이 아닌 이 사건 매매계약 당시의 시가를 기준으로 가액배상의 범위를 산정하여야 한다고 주장하나, 가액배상 은 원물반환에 갈음하는 것이고 원물반환 의무의 존부는 사해행위 취소의 효과가 생겨 수익자가 재산반환의 의무를 부담하는 때인 채권자취소소송의 사실심 변론종결시를 기준으로 하여 판단되는 것이므로 피고의 위 주장은 이유 없다.

E. Sub-decision

Therefore, the sales contract between the defendant and the highest head of the household shall be canceled within the range of 509,223,140 won, and the defendant shall be obliged to pay delay damages to the plaintiff at the rate of 5% per annum under the Civil Code from the day following the day when the judgment of this case becomes final to day after the day when the payment is made.

3. Conclusion

If so, the plaintiff's claim of this case changed in the trial of the party shall be accepted for the reasons.