An act of donation of real estate to a spouse constitutes fraudulent act.

An act of donation of real estate to a spouse constitutes fraudulent act and the donation date entered in the register of real estate register is recognized as a fact unless there are special circumstances in light of the presumption of registration.

Article 406 of the Civil Act, Article 30 of the National Tax Collection Act

2013 Ghana 103953 Revocation of Fraudulent Act

Korea

KimA

October 16, 2014

November 13, 2014

1. The contract of donation concluded on November 27, 2008 between the Defendant and the Yellow Z shall be revoked.

2. The defendant will implement the procedure for the cancellation registration of transfer of ownership, which was completed on December 5, 2008 by the receipt of No. 77851 on the part of the Daejeon District Court's Daejeon District Court's Daejeon District Court's Branch Office in the annexed list, with respect to the buildings listed in the annexed list,

3. The costs of lawsuit shall be borne by the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

A. The Yellow Z did not pay the national taxes of KRW 0,000,000,000, including the capital gains tax of KRW 000,000,000 in 204.

B. On November 27, 2008, the Z concluded a contract to donate buildings listed in the separate sheet (hereinafter “instant building”) to the Defendant, who is one’s own wife on November 27, 2008 (hereinafter “instant donation contract”). The Daejeon District Court received Asan Branch Branch of the Daejeon District Court on December 5, 2008, and completed the registration of ownership transfer under the name of the Defendant as of December 77, 2008.

C. The Z recognized the fact that the joint collateral of the claim already in shortage due to the instant donation agreement is more deficient due to the instant donation agreement.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 14 (including branch numbers, hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination

According to the above facts, this case's donation contract constitutes a fraudulent act and is presumed to be a beneficiary's bad faith. Thus, this case's donation contract is revoked as a fraudulent act, and the defendant is obliged to implement the procedure for cancellation registration of transfer of ownership to the Z with respect to this case's real estate.

3. Judgment on the defendant's assertion

A. As to the subject-matter of the suit

1) The defendant's argument

이 사건 증여계약은 2004. 6. 4. 체결되었는데, 이 사건 사해행위취소의 소는 그로부터 5년이 도과한 2013. 6. 17. 제기되었으므로, 제소기간이 도과하였다[구체적으로, 황ZZ은 이 사건 건물의 대지인 아산시 QQ면 WW면 000 전 000㎡(이하 '이 사건 토지'라 한다)를 2002년 상반기에 매수하였고, 피고가 소유하고 있던 천안시 00구 00읍 00리 000-00의 토지와 건물을 판 대금으로 이 사건 토지 지상에 이 사건 건물을 신축하였다. 2004년경 피고는 황ZZ에게 이 사건 토지 및 건물을 자신에게 달라고 요청하여 이 사건 토지에 관하여 2004. 6.경 피고 명의의 소유권이전등기가 마쳐졌는데, 이 사건 건물에 관하여는 황ZZ이 무허가로 이 사건 건물을 신축하였다고 생각하여 소유권보존등기를 마치지 않은 상태였으므로 피고 명의로 소유권이전등기를 하지 않았고, 이후 2008년에서야 소유권이전등기를 하면서 증여일자를 2004년으로 소급하여 기재하지 않았을 뿐이다. 건물과 대지는 함께 양도하는 것이 일반적인 점에 비추어 보더라도 황ZZ과 피고는 2004년에 증여계약을 체결하였음을 알 수 있다].

2) Determination

According to the evidence No. 10, since the grounds for registration for which the registration of ownership transfer in the name of the defendant was completed with respect to the building of this case on the registry are stated as "the donation on November 27, 2008", the contract of this case is presumed to have been concluded on November 27, 2008. Meanwhile, according to the evidence No. 1, as to the land of this case, which is the site of the building of this case, the registration of ownership transfer in the name of the defendant was completed on June 10, 2004 under the receipt No. 32543 of the Daejeon District Court of Daejeon District, Daejeon District Court of the Daejeon District, the Dosan Branch Office of the District Court of 104.6. 104. The ground for registration was stated as "the donation on June 4, 2004", it is presumed that the donation contract of this case was concluded on June 4, 2004. However, this fact alone alone is insufficient to conclude the above presumption as to the contract of this case.

B. As to the short-term period of filing a lawsuit

The Defendant asserted that the instant lawsuit filed on June 17, 2013, which had already been one year since the Plaintiff stated in the complaint that he had known of the instant fraudulent act on February 21, 2012, is unlawful. However, in light of the written evidence No. 11 and the purport of the entire pleadings, it is merely a clerical error in writing as of February 21, 2013, and there is no other evidence to deem that the Plaintiff had known of the instant fraudulent act on February 21, 2012. The Defendant’s aforementioned assertion is rejected.

C. As to the defendant's good faith

The defendant did not know in detail about the projects of the Yellow Z, and did not know about the default of the Yellow Z, so the gift contract of this case was argued to have been unaware of whether it constitutes a fraudulent act, but there is no evidence to acknowledge it. Therefore, the above assertion is not accepted.

4. Conclusion

The plaintiff's claim is accepted.