In the event that there is no particular change in the debtor's property, the act of disposal of the property shall not be deemed a fraudulent act.

If a delinquent taxpayer has extended a fund within the short period under the name of the defendant, and the repayment of the loan becomes due, it may not be considered as a fraudulent act.

Article 30 (Cancellation of Fraudulent Act and Restoration to Original State)

2017 Mada60620 Revocation of Fraudulent Act

Korea

KimA

December 6, 2017

January 10, 2018

1. Revocation of a donation agreement of KRW 8 million between the defendant and KimB on June 30, 2014.

2. The defendant shall pay to the plaintiff 8 million won with 5% interest per annum from the day following the conclusion of this judgment to the day of full payment.

3. The plaintiff's remaining claims are dismissed.

4. Of the costs of lawsuit, 90% is assessed against the Plaintiff, and the remainder 10% is assessed against the Defendant, respectively.

Cheong-gu Office

1. "Fraud act" as stipulated in Article 406 of the Civil Act refers to an act that causes damage to the creditor by reducing the debtor's active property or increasing his/her debt, or by deepening that the debtor has already been in excess of his/her debt. Therefore, for a debtor to constitute a fraudulent act, the act of disposal of the debtor's property requires the reduction of the debtor's whole property and causing the debtor's joint security of claims to occur or deepens. Thus, in cases where the debtor's joint security cannot be deemed to have been reduced before and after the debtor's act of disposal of the debtor's property, unless there is any change in the debtor's property before and after the debtor's act of disposal of the debtor's property, the act of disposal of the property cannot be deemed as a fraudulent act. Furthermore, even if the debtor's act of borrowing the loan and repayment of the loan, etc. are made in sequence within a short period without a lump sum, it shall not be deemed that there was an increase or decrease in the existing creditor's joint security through a series of acts, in collusion with some creditors.

2. Facts

○ From May 6, 2013 to July 10, 2013, the regional tax office affiliated with the Plaintiff-based regional tax office has conducted an integrated investigation into the husband KimB of the Defendant (former name KimCC) on his husband KimB, and notified the Defendant (or August 20, 2013), on August 10, 2013 (or August 20, 2013), of the imposition of global income tax for the year 2009 to 201 (hereinafter referred to as the instant disposition) (A, 2-1, 1).

B From July 15, 2013 to July 17, 2013, 2013, ○ KimB issued KRW 318 million in a financial institution as KRW 318 million in a check of KRW 100,000 from July 15, 2013 to KRW 318 (A4-1).

The re-audit was conducted on September 20, 2013 by the ○ KimB KimB’s objection on September 20, 2013, and the disposition of reduction or correction of the instant disposition was made, and KimB filed a tax appeal with the next Tax Tribunal on February 18, 2014 (B 1).

○ 한편, 2014. 3. 당시 ◎◎◎◎ ◎◎점을 운영하고 있던 피고는 2014. 3. 28. 경남은행으로부터 '기업운전 단기일반자금대출' 명목으로 7,400만 원을 아래와 같이 '대출기한 3개월'로 정하여 대출받아, 위 금액을 전부 남편 김BB 계좌로 송금하였다[을 2 내지 5, 2017. 10. 26.자 금융정보회신].

'45 million won out of the total amount of KRW 74 million transferred to the KimB account' was used as a fund for the repayment of part of the principal and interest of the loan amounting to KRW 300 million on the same day (No. 6-2), '25,016, 474 won' was deposited into the MB-Mabpp loan passbook and used for the repayment of MB-loan (No. 7).

○ Following the maturity of the above three months, upon the Defendant’s request on June 30, 2014, KRW 74 million was withdrawn from the KimB Account in the aggregate of KRW 74 million, and deposited into the Gyeongnam Bank with the repayment of the above loan (A-2, the above financial information meeting).

○ and on the same day at the Defendant’s request, the total amount of KRW 8 million was fully withdrawn in cash (A 4-2, the above financial information meeting).

○ On August 10, 2015, the Tax Tribunal tried to conduct a reinvestigation on the instant disposition on August 10, 2015 and to correct the tax base and tax amount according to the results as follows (hereinafter referred to as “applicant”).

○○ In addition, the regional tax office of the Do governor in Seoul Special Metropolitan City has completed a correction resolution of the tax base and amount of tax against KimB on October 27, 2015 through a reinvestigation (A 2-2). According to the above correction decision, the amount of national tax in the amount of national tax in the GimB claimed by the Plaintiff is as follows (hereinafter referred to as "foreign person") (hereinafter referred to as "foreign person")

As of June 30, 2014, KimB had been in excess of the obligation, the defendant did not dispute the fact that the KimB had been in excess of the obligation.

3. Determination

A. '74 million won' portion

As seen earlier, the loan amounting to KRW 74 million from the Gyeongnam Bank on March 28, 2014 under the name of the Defendant shall be deemed to have been granted a loan to the Defendant for the purpose of using it as its own business fund, etc., and then used by KimB by receiving the loan from the Defendant, and the loan shall be deemed to have been repaid by withdrawing KRW 74 million again upon the expiration of three months following the maturity of the loan. In light of the fact that the actual user of the loan and its purpose of use, its purpose and purpose, the term of loan was extremely short short, and the total amount of the loan principal and interest has been repaid at the accurate date, it cannot be deemed that there was an increase or decrease in the existing creditors’ joint security before and after a series of acts, such as the loan and repayment of the loan, etc., by KimB, and

Furthermore, in light of the fact that KimB immediately received and used the loan from the financial institution immediately after the execution of the loan, it shall be deemed that KimB received and used the loan in the name of the defendant who was operating a separate business entity at the time of the loan, and the defendant's name has repaid the loan as the loan maturity expires, it is difficult to evaluate that KimB performed the above act of repayment of the loan, and that KimB provided the defendant with an opportunity to collect the loan first only in collusion with the defendant who had the loan claim in appearance with the intent to impair other creditors, and that KimB provided the opportunity to collect the loan first. The reason is that KimB is because it is merely because the repayment of the loan made by the defendant in the short term after the repayment of the loan within the defendant's name and the maturity comes.

This part of the act of KimB does not constitute a fraudulent act.

B. '8 million won' portion

It was seen earlier that the Defendant withdrawn and brought to the Defendant’s easily consumed cash. The Defendant asserted that KimB paid the above amount to the Defendant as living expenses, but there is no evidence to acknowledge this. Ultimately, it is inevitable to view that KimB made a “donation” to the Defendant.

As to KimB, a tax investigation was conducted from May 2013, and at least around August 10, 2013, the taxation claim was established upon the imposition of the instant disposition. After that, the judgment of the Tax Tribunal was rendered on August 10, 2015 upon an objection by KimB and a tax appeal by the KimB, and the judgment was made on October 27, 2015.

During that process, KimB donated this part to the Defendant as of June 30, 2014, which is clear that the liability property of KimB has been reduced. This constitutes a fraudulent act, and the intention of harming is also sufficiently recognized. The defendant is presumed to have acted in bad faith.

Therefore, this part of the plaintiff's claim seeking the revocation of fraudulent act and restitution for the above 8 million won donation is accepted for reasons.