by gift, it caused or deepens the shortage of common security for general creditors, so it constitutes a fraudulent act.

In determining the bad faith of a subsequent purchaser, only whether the subsequent purchaser has recognized the existence of a legal act between the debtor and the beneficiary at the time of the act of the subsequent purchase is a matter, and it does not require that the subsequent purchaser's act of the subsequent purchase does not constitute an act of undermining the creditor.

2011 Mada83147 Revocation of Fraudulent Act

Korea

X. 1 other

December 1, 2011

January 12, 2012

1. As to real estate listed in the separate sheet

(a) Revocation of a gift agreement concluded on November 22, 2010 between KimA (************) and defendant ChoB.

B. Defendant BB shall implement the procedure for the registration of ownership transfer on the ground of restitution due to the revocation of fraudulent act to KimA.

C. Defendant KimCC implemented the registration procedure for cancellation of the registration of the establishment of a mortgage that was completed on May 27, 201 by the Busan District Court Private Registry on the part of May 27, 2011 to Defendant ChoB.

2. The costs of lawsuit are assessed against the Defendants.

The same shall apply to the order.

1. Basic facts

A. On July 15, 2010, KimA entered into a sales contract with DoD to sell each parcel of land at the time of the possession of Doo 00-0, 000-0, and 000-0 of the same Ri, and completed the registration of ownership transfer with Doo on August 20, 2010.

B. On October 31, 2010, KimA submitted a “tax base return on transfer income tax and the dispatch of each of the above lands to the competent tax office on the transfer of each of the above lands, but did not pay transfer income tax. On January 7, 2011, the director of Seosan Tax Office under the Plaintiff’s control determined transfer income tax on the transfer of each of the above lands as KRW 100,288,50, and notified KimA of this at that time, but KimA did not pay it up to now.

C. On November 22, 2010, KimA entered into a contract to donate the real estate listed in the [Attachment List (hereinafter “instant real estate”) owned by it with Defendant ChoB, one’s wife, and completed the registration of ownership transfer to Defendant ChoB as the receipt of the Busan District District Court Seobu Office No. 48120 on November 25, 2010.

D. On May 16, 2010, Defendant ChoB entered into a mortgage agreement with OB bank (hereinafter “OB bank”) on the instant real estate. POB concluded a mortgage agreement on May 16, 201 with the Busan District Court No. 24145 on May 16, 201, the maximum debt amount was KRW 182,880,000, and the debtor completed the registration of creation of a mortgage on the instant real estate with the Defendant ChoB as the Busan District Court No. 24145 on May 16, 201, and the debtor completed the registration of creation of a mortgage on the instant real estate as the Plaintiff ChoB. Meanwhile, the Busan District Court No. 44132 on August 30, 203 and No. 2183 on May 27, 2010, each of the maximum debt amounts was cancelled as the registration of creation of a mortgage on each of the following grounds: OB bank was cancelled as 104,000,00 won.

E. On May 19, 201, Defendant ChoB entered into a mortgage agreement on the instant real estate with Defendant SPCC, who is the buyer of Kim AA on May 19, 201, and Defendant SPCC concluded a mortgage agreement on the instant real estate, and Defendant SPCC completed the registration of the establishment of a mortgage with Defendant SPP as the receipt of No. 26152 on May 27, 201 by the Busan District Court’s private registry office as KRW 100,000,000, and the debtor as Defendant ChoB.

바. 이 사건 증여계약 당시 검AA는 이 사건 부동산 외에도 거제시 둔덕면 OO리 산 00-0 임야 6,092㎡를 소유하고 있었으나 위 임야의 그 무렵 공시지가는 3,630,832원(=6,092㎡X596원)에 불과하였다.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, and 15, the purport of the whole pleadings

2. Determination

A. Determination on the cause of the claim

(1) According to the above facts, under the status that KimA bears the obligation of capital gains tax against the Plaintiff (the transfer income tax claim for the transfer of each land located in XX, established on August 31, 2010), the instant real estate was donated to the Defendant ChoB, thereby causing or deepening the shortage of common security for general creditors, barring any special circumstance, the instant donation contract is deemed a fraudulent act against the Plaintiff, who is the obligee, and it is presumed that the Defendant KimB and the subsequent purchaser, who is the obligor KimA’s intention to injure and the beneficiary, were guilty of the fraudulent act. Accordingly, the instant donation contract between KimA and the Defendant ChoB should be revoked as a fraudulent act.

(2) Methods of reinstatement

In the event that a third party acquires a mortgage, superficies, etc. on the subject matter after a fraudulent act, barring any special circumstance, such as that the beneficiary may transfer the subject matter to the beneficiary without any restriction on mortgage, etc., the creditor may seek compensation equivalent to the value of the subject matter, but the creditor may seek reimbursement against the beneficiary in lieu of return of the subject matter. The creditor may seek reimbursement from the beneficiary in lieu of return of the subject matter. The fact that the O bank acquired the right to collateral security on May 16, 201 after the conclusion of the gift contract of this case was as seen earlier that the OB acquired the right to collateral security on the subject matter of this case on May 16, 201. As such, as for the restitution following the cancellation of the gift contract of this case, the defendant ChoB, the beneficiary, is obligated to perform the registration procedure for transfer of ownership on the ground of the cancellation of the fraudulent act, as requested by the Plaintiff, and the subsequent purchaser, the defendant ChoBB, the Busan District Court, the subsequent purchaser, is obligated to perform the registration procedure for establishment of mortgage.

B. Determination of the defendants' assertion

(1) In light of the following facts: (a) from March 2010 to March 2010, Defendant ChoB agreed to receive the instant real estate as consolation money under the premise of divorce; and (b) concluded the instant donation contract; (c) Defendant ChoB did not constitute a fraudulent act; and (d) Defendant ChoB did not know of the fact that the instant land was transferred during his separate occupation; (b) Defendant ChoB asserted that it is a bona fide beneficiary; (c) there was no evidence to acknowledge that it was separate from Defendant ChoB from March 2010 on the premise of divorce; and (d) Defendant ChoB did not have any other evidence to acknowledge that it was difficult for the instant general creditor to receive the demand for loans, credit card loans, etc.; and (e) Defendant ChoB did not know that there was any lack of economic difficulty to acknowledge the instant donation contract, such as the instant case’s act of borrowing money.

(2) Defendant KimCC was given a loan of KRW 90,00,000,00 to Defendant ChoB, which is Defendant ChoB’s living expenses and ASEAN, to Defendant ChoB, and was actually created the instant real estate on May 27, 2011. After the establishment of the right to collateral security, Defendant ChoB was given a loan of KRW 90,00,000 to Defendant ChoB during the period from May 30, 201 to June 13, 2011, and KimA was unaware of whether the subsequent purchaser was liable for capital gains tax. Accordingly, in determining the subsequent purchaser’s bad faith, only the subsequent purchaser was aware of the existence of legal act between the debtor and the beneficiary at the time of the act of acquiring the right to collateral security, and there was no other evidence that the subsequent purchaser did not cause harm to the obligee’s fraudulent act, and there was no other reason to acknowledge that the subsequent purchaser’s act of acquiring the instant real estate as an act of acquiring the right to collateral security agreement between the beneficiary and the subsequent purchaser.

3. Conclusion

Therefore, since the plaintiff's claim was justified, it is decided to accept it and it is so decided as per Disposition.