Seoul Eastern District Court 2012 Gohap103729 ( October 19, 2013)

Transfer tax claims established by the transfer of real property are subject to the obligee's right of revocation.

(1) It was highly probable that the transfer of real estate would be subject to the transfer income tax of this case in the near future in which the transfer income tax of this case was imposed, and that the transfer income tax of this case would be established in the near future, and the transfer income tax of this case was actually established in the near future.

2013Na2004812 Revocation of Fraudulent Act

Korea

KimA

Seoul Eastern District Court Decision 2012Gahap103729 Decided February 19, 2013

December 3, 2013

January 16, 2014

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

A. The respective contract of donation concluded on September 30, 2008; October 1, 2008; October 1, 2008; October 10, 2008; and November 17, 2008 between the defendant and KimB shall be revoked.

B. The Defendant shall pay to the Plaintiff 5% interest per annum from the day following the day when this judgment became final and conclusive 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. Quotation of judgment of the first instance;

The reasoning for this Court’s reasoning is as follows, except where the defendant added the following judgments as to the matters asserted in the trial, and thus, it is also accepted by the main sentence of Article 420 of the Civil Procedure Act.

2. Additional matters to be determined;

A. The defendant's assertion

1) Whether a fraudulent act was committed

The reason why KimB remitted the total amount of OB to the defendant four times (hereinafter referred to as the "payment of the money in this case") is that the defendant and KimB received the defendant's share of the proceeds from the sale of the real estate in this case, which is a common property formed by the defendant and KimB during their marital life, or that the defendant was paid part of the amount of OB that he lent to KimB on October 2, 2006. Accordingly, this does not constitute a fraudulent act, since it was merely paid the money according to the principal place of the obligation, and it was not received any other property in lieu of payment.

2) The defendant's good faith

In light of the fact that the Defendant received the instant money by account transfer, not in cash, in four times, and that the instant taxation disposition took place on August 10, 2009, and the payment of the instant money was commenced ten months prior to that, and that it is unclear that KimB used the sales price of the instant real estate in excess of the OOO personnel, it cannot be deemed that the Defendant was aware of the fact that the Defendant exceeded the obligation of KimB at the time of receiving the payment of the claim from KimB, or that he was aware of the existence of other creditors of KimB, and intended to harm them.

B. Determination

○ For the following reasons, the Defendant’s above assertion is without merit.

1) The instant monetary act ought to be deemed as constituting a fraudulent act.

A) On the ground that a creditor’s act of paying a certain amount constitutes a fraudulent act, the creditor filed a claim for revocation of the said act. However, any other assertion as a gift or repayment in relation to a legal assessment of a certain amount does not change the subject matter of lawsuit or claim itself (see, e.g., Supreme Court Decision 2004Da10985, 1092, Mar. 25, 2005). Meanwhile, even in cases where the debtor’s joint security of other creditors is reduced due to the debtor’s repayment to a specific creditor in excess of his/her obligation, such repayment does not constitute a fraudulent act as a matter of principle, unless the debtor performed the repayment with the intent of undermining other creditors in collusion with some creditors, and in particular, whether the debtor performed the payment with the intent of undermining other creditors in collusion with some creditors, whether the debtor’s claim against the beneficiary exists, the amount of the debtor’s repayment received from the debtor, the debtor’s ability to recognize the repayment with the debtor and the beneficiary’s ability at the time of repayment 2082, etc.

B) Comprehensively taking account of the overall purport of the arguments in the statements in Eul evidence Nos. 2 and 3, the defendant and KimB agreed to divorce on October 20, 2005, and concluded a divorce agreement with the KimB to dispose of the instant real estate within a prompt time, and pay 50% of the purchase price less the transfer income tax, etc. to the defendant. Further, on October 2, 2006, KimB may be recognized that the defendant disposed of the instant real estate as the interest rate of 1.5% on October 2, 2006, and written a loan certificate to pay the purchase price to the defendant.

Even if there is room to view that the money of this case was paid as the repayment of an agreement on division of property or a loan claim against the defendant KimB, as alleged by the defendant, (1) the defendant does not accurately specify the amount of this case's agreement or loan, (2) the witness KimB testified that the money of this case was partially repaid to the defendant, but the defendant did not pay the interest that was paid every month, and (3) the date of establishment of the capital gains tax of this case was paid on March 31, 2008. According to the statement of No. 9 and the above KimB testimony of the above KimB, since the defendant did not receive the money of this case's agreement or loan from OB as the sale price of this case's real estate, but it was still recognized that the defendant did not receive the money of this case's loan from OB as the sale price of this case's real estate, but it was still recognized that OB had not received the money of this case's sale of this case's real estate from 208.17,00.

Ultimately, this part of the defendant's assertion is without merit.

2) There is no sufficient evidence to view the Defendant as acting in good faith at the time of paying the instant money.

Since the beneficiary's bad faith is presumed in a fraudulent act revocation lawsuit, the beneficiary is responsible for proving his good faith in order to be exempted from his responsibility.

In light of the timing and circumstances of the payment of the instant money, the details of the use of the instant real estate sales price by KimB, and the relationship between the Defendant and KimB, etc., the circumstance that the Defendant, like the Defendant’s assertion, received the instant money by dividing it four times, or that the instant money began ten months prior to the actual tax assessment, is insufficient to recognize that the Defendant was acting in good faith at the time of the payment of the instant money, and there is no sufficient evidence to acknowledge otherwise. The Defendant’s assertion on this part is without merit.

3. Conclusion

Since the judgment of the first instance is justifiable, the defendant's appeal is dismissed as it is groundless.