(영문) 대구고등법원 2015.5.13.선고 2014나23455 판결

A. Of the instant lawsuit, the part of the claim for restitution, which was based on the cancellation of a deposit-based title trust agreement and the cancellation of a deposit-based title trust agreement, shall be dismissed.

B. The plaintiff's claim for restitution on the ground of the cancellation of a gift contract and the cancellation of a gift contract is all dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

Purport of claim and appeal

The judgment of the first instance is revoked. The contract or deposit with the defendant on April 13, 2012, which was concluded between the defendant and C, is a donation contract or deposit with respect to KRW 20,00,000.

State Title Trust Agreement shall be revoked. The defendant shall pay to the plaintiff 20,000,000 won and to the plaintiff the full payment from April 13, 2012.

shall pay 5% interest per annum.

Reasons

1. Basic facts

A. On June 7, 2010, the Plaintiff notified the Defendant’s husband C to pay under-reported capital gains tax, etc. on the transfer value of unlisted stocks (stock I). ② The Plaintiff notified the Plaintiff to pay global income tax and value-added tax on July 5, 2010, but up to now, KRW 424, 158, 290 is in arrears.

B. C, as a joint representative of D Co., Ltd., held a claim for loans of KRW 2.7 billion against D, but, on June 15, 2012, the budget Ri building of Seongbuk-do, Chungcheongnam-do, Jeju-do, owned by D, sold to D and received payment of KRW 140 million out of the purchase price from a medical corporation E. On April 13, 2012, C made the aforementioned medical corporation to deposit the said money directly with the Defendant’s account in the Defendant’s name (Evidence No. 12).

C. Of KRW 140 million deposited in the instant account, KRW 1220 million was withdrawn on April 18, 2012 and April 30, 2012, and C’s payment of the said capital gains tax was used. KRW 17 million was remitted to F around April 16, 2012, and the remainder KRW 3 million was remitted to H from April 16, 2012 to April 19, 2012.

D. Meanwhile, at the time of receipt of the above sales amount, C had no particular asset except for the balance of 379,056 won in his/her name at the time of receipt of the above sales amount (the remaining loan claims against C were not likely to be repaid).

[Grounds for Recognition] The facts without dispute, Gap evidence 1 to 13 (including each number; hereinafter the same shall apply), Eul evidence 1 to 9, the purport of the whole pleadings

2. Claim for the cancellation of a donation contract and reinstatement;

A. The Plaintiff C deposited the above KRW 140 million with the account under the name of the Defendant, the wife, in excess of its obligation. Among them, the remaining KRW 20 million, excluding the portion used for the payment of the above capital gains tax, should be revoked as a fraudulent act, and its restitution should be returned to the Plaintiff by the method of compensation for value. 2) Defendant C:

Since the Defendant only lent the name of the instant account to C and did not receive or use the money for the instant account, the Defendant did not receive or receive the said KRW 20 million, and was not a beneficiary of a fraudulent act.

B. Determination

1) Relevant legal principles

In the event of a transfer of money to another person’s deposit account, the remittance may be made based on a variety of legal causes. The mere fact that a person in a certain personal relationship consented or understood to transfer money to his/her own deposit account, or that he/she actually allows such a person to control his/her own deposit account, barring any other circumstances, it cannot be readily concluded that there was an agreement between the remitter and the account holder that he/she would have objectively reverted the remittance amount to the account holder without compensation (see, e.g., Supreme Court Decision 2012Da30861, Jul. 26, 2012).

C The fact that the above KRW 140 million was deposited into the account in this case under the name of the Defendant in the course of the partial repayment of the loan claim against D is as seen above. However, in light of the above quoted evidence, the following facts are acknowledged: (a) it is insufficient to recognize that there was a mutual agreement between C and the Defendant that the above money or KRW 20 million was ultimately reverted to the Defendant; and (b) there is no other evidence to support it; (c) the Plaintiff’s assertion on the above donation contract is without merit without further review.

① From October 1, 2009 to September 6, 2010, C acquired the management right of G Co., Ltd. (hereinafter referred to as “G”), and operated G as the actual owner, from around December 1, 2009 to around September 6, 2010, G as the representative director of G, and from September 7, 2010 to after having transferred the name of the representative director to H, who is an son, as the actual owner (the Defendant, who is the wife of C, was appointed as the representative director of G, on March 31, 2014).

② The instant account was opened on June 8, 201 and the balance was entirely withdrawn on May 21, 2012. The details of the instant account are most related to G operation or payment of the said capital gains tax (number: 603-1345-260-01). The same applies to the details of the instant account in the name of the Defendant.

③ Of KRW 140 million deposited in the instant account, KRW 120 million was used in the payment of the said transfer income tax by C. The KRW 17 million was remitted to F, who is a party to the sale and purchase of used buses purchased by G. The remaining KRW 3 million was remitted to H, who is the representative director of G. Ultimately, the Defendant was not consumed out of the said KRW 140 million.

Therefore, the plaintiff's assertion that the plaintiff's contract of donation was revoked and that the contract of donation was revoked is without merit.

3. Demanding cancellation of a title trust agreement with deposit holders and reinstatement;

A. The plaintiff's assertion

C deposited the above KRW 140 million in the account in the name of the Defendant, the wife, with the account in excess of the obligation. Among them, the remaining KRW 20 million, excluding the portion used for the payment of the above capital gains tax, was lent to the Defendant and trusted to the Defendant. As such, it shall be revoked as a fraudulent act, and the restoration to its original status shall be returned to the Plaintiff by the method of compensation for value.

B. Determination

In cases where a deposit contract is concluded through a real name verification procedure under the Act on Real Name Financial Transactions and Confidentiality and the fact of confirmation of the real name is clearly indicated in the deposit contract form, etc., it is reasonable to interpret that the deposit title holder, the actor representing him/her, and the intent of a financial institution, indicated in the deposit contract form as the deposit owner, is to be the party to the deposit contract (see Supreme Court Decision 2008Da45828, Mar. 19, 2009). Since there is no dispute between the parties that the Defendant lent the name of the instant account to C, it is recognized that C entered into the deposit title trust contract with the Defendant and deposited the instant account with the said KRW 140 million.

In this case, the nominal holder of a title trust agreement between the contributor and the account holder under the title trust agreement shall be deemed to have a duty to transfer his/her claim for return of deposits to a financial institution to the contributor upon the request of the contributor. Therefore, the contributor may, at the time of cancelling the title trust, request the transfer of deposit claims against the financial institution to the account holder and also request the notification of transfer to the financial institution (see Supreme Court Decision 2000Da49091, Jan. 5, 2001, etc.

However, in a case where a creditor filed a lawsuit against a beneficiary seeking cancellation or restitution of a fraudulent act on the ground of a debtor's fraudulent act, and the said fraudulent act has been rescinded or terminated during the lawsuit, and the creditor has returned to the debtor by punishing the property for which return was sought by the revocation of such fraudulent act, barring special circumstances, the creditor's revocation lawsuit has already been executed and no longer the benefit of the protection of rights has been lost by such lawsuit. This does not change because the return of real estate, which is the object property, was made in the form of the registration of transfer of ownership, rather than in the form of cancellation of the registration of transfer (see Supreme Court Decision 2007Da85157, Mar. 27, 2008).

C Not only used the above KRW 140 million deposited into the account of this case for the payment of his own transfer income tax, but also withdrawn on May 21, 2012 the balance of the account of this case from May 21, 2012.

However, even if the above contract is revoked, the defendant did not withdraw the deposit of this case and did not have the current claim to return the deposit, while the debtor C already received a refund from the defendant due to the withdrawal of deposit, so the obligation to return the deposit in duplicate does not arise to the defendant. Thus, the plaintiff has no interest to seek the cancellation of the title trust contract of the deposit owner and the restoration of the original state as a lawsuit. Accordingly, the part seeking the cancellation of the title trust contract and the restoration of the original state among the lawsuit of this case is unlawful.

4. Conclusion

Therefore, the part of the lawsuit in this case concerning the cancellation of the title trust contract and the claim for restitution of the original state is unlawful, and thus, it is dismissed as the part concerning the claim for cancellation of the gift contract and the claim for restitution of the original state among the claims in this case is dismissed as it is without merit. Since the judgment of the court of first instance is unfair as it is in part of the plaintiff's appeal and it is decided to