Daejeon District Court Decision 2013Na20072 ( December 18, 2013)

Since ParkA seems to be merely a person who has a legitimate interest in repaying the secured debt as a surety's surety, it cannot be viewed as a donation.

ParkA merely appears to have a person who has a legitimate interest in repaying the above secured debt in a position to be executed by a mortgagee in the event that he/she fails to repay the secured debt of this case as a surety to secure another's property, and there is no ground to acknowledge that ParkA has agreed to grant the secured debt to the defendant free of charge.

Article 30 of the National Tax Collection Act

2014Na10296 Revocation of Fraudulent Act

Korea

OO

Daejeon District Court Decision 2013Gahap20072 Decided December 18, 2013

August 20, 2014

October 22, 2014

1. The plaintiff's appeal and the defendant's incidental appeal are all dismissed.

2. Costs arising from an appeal and an incidental appeal shall be borne by each person;

and the purport of incidental appeal

1. Purport of claim and appeal

The judgment of the first instance is modified as follows. The contract for each donation of KRW 00,000,000,000,0000,0000,000,0000,000 entered into on July 30, 2009 between the defendant and ParkhA shall be revoked. The defendant shall pay to the plaintiff 5% interest per annum from the day following the date of the final judgment to the day of full payment.

2. Purport of incidental appeal;

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Quotation of judgment of the first instance;

This court's reasoning is as follows: (a) the first instance court's reasoning is the same as the statement of the reasons for the first instance court's decision, except for the second instance court's reasoning, the first instance court's first instance court's first instance court's first instance court's first instance court's first instance court's first instance court's first instance court's second

2. Parts to be dried;

A) First of all, we examine the part of the OO which was used to pay loans to the Agricultural and Fishery Marketing Corporation in BBU among the money that ParkA delivered to the Defendant by the Defendant.

As seen earlier, regarding the assertion that a creditor seeking revocation of a fraudulent act is a donation of money to a beneficiary by the debtor, when the beneficiary contests that it was received as repayment of the existing debt, this constitutes denial of creditor's assertion, and thus, in order to recognize the said monetary payment act as a fraudulent act, it should be proved that the said monetary payment act constitutes a donation, and the burden of proof therefor lies on the part of claiming a fraudulent act (see Supreme Court Decision 2005Da28686, May 31, 2007). In such case, in order to objectively constitute a donation, it should be interpreted that there exists an agreement between the parties on the grant of money free of charge by "donation" as it is objectively attributable to the debtor and the beneficiary (see Supreme Court Decision 2012Da30861, Jul. 26, 2012).

On July 16, 2008, Park Dong-dong apartment (hereinafter referred to as the "mortgage of this case") was established with a maximum debt amount of 00 million O0,000 won with respect to O-dong apartment (hereinafter referred to as the "mortgage of this case"), on August 22, 2009, Park Dong-dong apartment was concluded with thisCC to sell O00,000 won with a balance of the purchase price for O-dong apartment from thisCC on October 12, 2009, and delivered KRW 00,000,000 won to the defendant, the husband of this day, and the defendant deposited O0,000 won with an account in the name of BBsan, and the defendant deposited 10,000 won with the above 300,000 won with the above 100,0000 won, and each of the above 300,000 won was cancelled by the execution of the mortgage of this case's 10,000.

In full view of various circumstances related to the use of the above OO members, such as the subject, timing, amount, and usage of money, and relationship between ParkA and the defendant who remitted the money given to the defendant to the BBF, which can be known by the above facts of recognition, it is deemed that ParkA is merely a delivery of money to the defendant to perform the business of repaying the secured debt of this case through the defendant who is the representative director of BBF and his husband, and there is no evidence to acknowledge that ParkA and the defendant provided the above OO members free of charge as otherwise asserted by the plaintiff with respect to the grant of the above OO members, in the position of being subject to execution of the secured debt of this case, in the case where he did not repay the secured debt of this case as a person who has pledged his property to secure another's property, there is a legitimate interest to repay the secured debt of this case from the mortgagee.

Therefore, the plaintiff's assertion that the above OO members used to pay loans to the Agricultural and Fishery Marketing Corporation of the BBF to the defendant is donated to the defendant by the ParkA among the money paid by the ParkA to the defendant is without merit.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and all plaintiff's appeal and defendant's incidental appeal are dismissed as they are without merit. It is so decided as per Disposition.