Daegu District Court 2013Kadan807294 ( November 20, 2015)

The transfer registration of real estate to the wife on the ground of termination of title trust in excess of debt constitutes a fraudulent act.

The instant termination contract on the title trust concluded between AA and the Defendant on apartment constitutes a fraudulent act against the creditors including the Plaintiff, and thus should be revoked.

Article 30

Daegu District Court-2015-B-31019 (2016.07)

Korea

Yellow AA

Daegu District Court Decision 2013Kadan807294 decided

2016.05.12

2016.07.07

1. Basic facts

The reasons for this part of the court's explanation are the same as the part of "recognized facts" of the judgment of the court of first instance, and therefore, they are cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination on the cause of the claim

(a)the existence of preserved claims;

1) 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 a fraudulent act as a matter of principle, it is highly probable 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 fact, where a claim has been established as a result of realizing the possibility 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 2006Da59151, Dec. 7, 2006). According to the facts acknowledged earlier, prior to the cancellation of the title trust contract in this case, the transfer of real estate, which already serves as the basis of the Plaintiff’s taxation claim against the Category A (hereinafter “instant taxation claim”), the preliminary return of the transfer income tax by Category A, and the preliminary investigation thereof, were conducted, and the taxation claim in this case has become final and conclusive at the time when the title trust contract in this case was terminated.

2) Although the Defendant asserts that the instant taxation claim is currently pending in the lawsuit seeking revocation of the tax imposition disposition, it did not have become final and conclusive, the said taxation disposition is valid until it is lawfully revoked by the process of administrative action or the executory power (see, e.g., Supreme Court Decision 9Da20179, Aug. 20, 199). According to the facts acknowledged earlier, the instant taxation claim is only filed a lawsuit seeking revocation of the tax imposition disposition, and the evidence submitted by the Defendant alone is insufficient to recognize that the Plaintiff’s taxation disposition with respect to Category A is automatically null and void, and there is no other evidence to prove otherwise. Accordingly, this part of the Defendant’s assertion is without merit.

(b) The establishment and intent of fraudulent act;

1) Parties’ assertion

The Plaintiff asserts that since Defendant A’s transfer of the instant apartment in excess of debt to the Defendant, the instant contract for the termination of title trust is a fraudulent act and the Defendant’s bad faith is presumed, the instant contract for the termination of title trust should be revoked, and the instant transfer of ownership should be revoked due to its restitution.

On the other hand, the Defendant: (a) acquired the apartment of this case from the Defendant’s account to fully pay for the apartment of this case (180,000,000 won from the Defendant’s account; and (b) acquired the apartment of this case to KRW 100,00,000,00 which the Defendant received as the lease deposit for the apartment of this case); (c) as the Defendant was declared liable for inheritance registration again and double tax, etc. upon registration under the name of the Defendant; and (d) the Defendant, the title truster, transferred the apartment of this case from the title trustee, does not constitute a fraudulent act; (d) the Defendant’s act of acquiring the ownership of the apartment of this case from the title trustee, the title truster, does not constitute a fraudulent act; and (e) on the basis of KRW 67,563,543, which was transferred from the account of domestic category A, the Defendant and Category A shared the apartment of this case in accordance with the ratio of the purchase price to each of the apartment of this case; and (e) the Defendant shall be limited to KRW 53653,5.

2) Determination

A) A real estate trustee’s act of completing a registration of ownership transfer of the trusted real estate as a performance of a duty to return according to the trust act does not constitute a fraudulent act as a performance of the existing obligation (see, e.g., Supreme Court Decision 2006Da79704, Apr. 26, 2007). First, we examine whether the Defendant’s apartment in this case was title trust with a Chapter A.

B) Under Article 830(1) of the Civil Act, real estate acquired by one spouse in the name of a single spouse in the marriage is presumed to be the unique property of the nominal owner. Therefore, in order to reverse such presumption, the other spouse ought to prove that the other spouse actually assumed the consideration for the said real estate and acquired it in order to possess it in fact. In determining the reversal of the presumption of special property, the mere fact that the other spouse is the source of the purchase fund does not necessarily mean that there was a title trust on the said real estate, and it does not mean that there was a title trust on the said real estate solely because the other spouse was the source of the purchase fund, and it should be determined individually and specifically by taking into account all the relevant circumstances revealed through the relevant evidence whether the other spouse bears the consideration for the real possession of the said real estate (see, e.g., Supreme Court Decisions 2010Da46329, Sept. 30, 2010; 2013Da49572, Oct. 31, 20

According to the statements in the evidence Nos. 4 and 17 of this case, the fact that KRW 130,000,000 from the Samsung Securities Account in the name of the defendant was deposited by cashier's checks, and the fact that KRW 50,000,000,000 from the Daegu Bank Account in the name of the defendant was deposited by cashier's checks is recognized.

However, in light of the following circumstances, Gap evidence, Eul evidence Nos. 10, 11, Eul evidence Nos. 2, 3, 7, 9, and 14, which can be acknowledged by the defendant comprehensively considering the overall purport of pleadings, namely, there is no evidence to acknowledge that cashier's checks released from the defendant's account were used in paying the above intermediate payments, ② The above Samsung Securities Account includes KRW 67,563,500,00, which was transferred from the 130,000,000, which was paid to the above Samsung Securities Account, and there is no evidence to acknowledge that the above funds were transferred to the above Samsung Securities Account from 00,000,000 won, to 130,000,000 won, which was paid to the above Samsung Securities Account under the name of the defendant's 2,00,000 won, and there is no doubt that the above funds were transferred to the above Samsung Securities Depository's 2,006,00 won,00 won.

C) Therefore, the act of AA entering into the instant contract for termination of the title trust and completing the registration of transfer of ownership in the future of the Defendant on the ground thereof constitutes a fraudulent act which causes or deepens the excess of obligations by granting real estate, which is its sole property, to another person without compensation, and in such a case, it is presumed that the Defendant’s bad faith, which is the debtor’s intent to commit suicide and beneficiary, constitutes a fraudulent act (see, e.g., Supreme Court Decision 2000Da41875, Apr. 24,

C. Sub-committee

Therefore, the instant contract for the termination of title trust should be revoked by fraudulent act, and the Defendant is obligated to implement the registration procedure for cancellation of ownership transfer registration of this case to the Plaintiff with restoration to its original state (the Plaintiff’s assertion that the instant contract for the termination of title trust of this case is null and void as it constitutes a false declaration of conspiracy, but as long as it accepts the Plaintiff’s assertion as to the Plaintiff’s fraudulent act, no determination is made regarding

3. Conclusion

Thus, the plaintiff's claim of this case is justified, and the judgment of the court of first instance shall be accepted.

As the conclusion is justified, the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.