Suwon District Court-2013-Annex-22358 (2016.07.01)

The defendant was in excess of his liability, and is obliged to compensate for value when he is found to be deadly or maliciously recognized.

The defendant is liable to compensate for the equivalent value as a result of the fraudulent act if the defendant entered into each of the instant sales contracts in excess of his liability.

Article 30 of the National Tax Collection Act: Revocation and Restoration of Fraudulent Act

Seoul High Court 2016Na2051406 Revocation of Fraudulent Act

Korea

Sicks

November 16, 2017

December 05, 2017

1.The judgment of the first instance shall be modified as follows:

A. The sales contract concluded on May 17, 2012 with respect to the real estate listed in the separate sheet No. 1 and the real estate listed in the separate sheet No. 2 signed on May 17, 2012 and the separate sheet No. 2 shall be revoked within the limit of KRW 900,098,580, respectively.

B. The defendant shall pay to the plaintiff 900,098,580 won with an annual interest rate of 5% from the day immediately following the day this judgment became final and conclusive to the day of full payment.

C. The plaintiff's remaining claims are dismissed.

2. All costs of the lawsuit are borne by the Defendant.

1. Purport of claim

The sales contract concluded on May 17, 2012 and on June 5, 2012 with respect to the real estate listed in the separate sheet No. 1 list between the defendant and the leastO shall be revoked, respectively. The defendant shall pay to the plaintiff 900,098,580 won and the amount calculated by the rate of 5% per annum from the day following the date this judgment becomes final and conclusive to the day of full payment.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

(a) Construction of a MaO building and registration of preservation of ownership of the MaO building;

1) From April 1, 2008 to OO-Eup 927-9, LOO was registered (business registration number: O-O-O-O-O-O-O-O-O-O-O-O-O-O), and the defendant was the spouse of OO-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-type sales business, and the defendant was the spouse of O-O-O-type.

2) MaximumOO on the land above 3rd underground and 15th above ground (hereinafter referred to as 'Mablus').

On February 9, 2010, registration of ownership preservation has been completed in the name of the first new construction.

B. On May 14, 2010, the leastO made a security trust agreement and the ownership transfer registration between the leastO and the AO Trust Co., Ltd., concluded a security trust agreement with the AO Trust Co., Ltd. (hereinafter “instant trust company”) on the trust of 91 units, including real estate listed in the attached Tables 1 and 2, and completed the registration of ownership transfer on May 19, 2010 to the instant trust company on the ground of trust.

C. The Plaintiff’s taxation claim against the largestO

The director of the listed tax office under the Plaintiff issued a payment notice of value-added tax and comprehensive income tax as listed in the table Nos. 1 through 6 from September 6, 2011 to May 1, 2013 to the leastO. However, the value-added tax and global income tax in arrears by the leastOO until November 17, 2014 were total 90,098,580 won (hereinafter “instant tax claim”).

(d) An act of disposing of real estate in attached Forms 1 and 2 of the leastO;

1) On May 17, 2012, among the parties liable for the payment of value-added tax and global income tax against the Plaintiff, the MaximumO entered into a sales contract with the Defendant to sell the real estate listed in the separate sheet No. 1 (hereinafter “first sale contract of this case”) (hereinafter “the instant first sale contract”). On May 23, 2012, the above trust registration was cancelled on the ground of the reversion of trust property, and the registration of transfer of ownership was completed on May 17, 2012 by entering into the Defendant’s title as of May 17, 2012.

2) On June 5, 2012, the MaximumO entered into a sales contract with the Defendant to sell the real estate listed in the separate sheet No. 2 (hereinafter referred to as “second real estate”). On June 21, 2012, on the ground that the trust property belongs to the trust property, the above trust registration was cancelled, and the registration of transfer was completed on June 5, 2012 with respect to the above real estate to the Defendant on the same day after completing the registration of transfer under the largestO name.

E. Sale of each real estate of this case through a voluntary auction procedure

On the other hand, following the conclusion of the first and second sales contract of this case, the establishment registration of a neighboring mortgage was completed with respect to each of the instant real estate by the debtor, the mortgagee, and the Seoul Fulon Livestock Livestock Cooperative. After that, the registration of the ownership transfer in the name of the successful bidder was completed in the voluntary auction procedure, including Suwon District Court 2013, 2014,627,010, the total successful bid price of each of the instant real estate was awarded to a third party at KRW 94,627,010, and the ownership transfer registration was completed.

[Ground of recognition] The non-contentious facts, Gap evidence Nos. 1 through 13, 19, 20 (including each number; hereinafter the same shall apply), the fact inquiry results with respect to civil execution by the Suwon District Court and the purport of the whole pleadings

2. The plaintiff's assertion

In spite of the fact that the Plaintiff did not pay the pertinent tax, on May 17, 2012, the MaximumO concluded a sales contract on the instant real estate No. 1 with the Defendant on May 23, 2012, and completed the registration of ownership transfer on the ground of the sale and purchase of the instant real estate. On June 5, 2012, the Plaintiff concluded a sales contract on the instant real estate No. 2 with the Defendant on June 21, 2012 and completed the registration of ownership transfer on the ground of the sale and purchase of the instant real estate. The MaximumO became more active property than positive property due to the sale and purchase of the instant real estate No. 1, 200, which constitutes a fraudulent act detrimental to the obligee. Accordingly, the sales contract No. 1, 200 should be revoked as a fraudulent act, and the Defendant had the obligation to reinstate the instant real estate under the name of 1, 208, which was the subject of restitution to the Plaintiff following the revocation of the fraudulent act.

3. Determination on this safety defense

A. The defendant's main defense

Around June 21, 2012, the Plaintiff should be deemed to have known that the first and the second sales contract of this case was a ground for revocation as a fraudulent act. Accordingly, the lawsuit of this case filed after the lapse of the exclusion period of one year is unlawful.

B. Determination

1) In the exercise of the right of revocation, the "date when the creditor, who is the starting point of the exclusion period, becomes aware of the fact that the debtor committed a fraudulent act while knowing that he would prejudice the creditor. This is insufficient to simply recognize the fact that the debtor performed a disposal act of the property, and further, it is necessary to know the existence of a specific fraudulent act and to know the fact that the debtor had an intent to injure the debtor, and it cannot be presumed that the debtor was aware of the objective fact of the fraudulent act. Meanwhile, the burden of proof as to the lapse of the exclusion period lies in the party to the creditor revocation lawsuit (see, e.g., Supreme Court Decisions 2004Da61280, Jul. 4, 2006; 2009Da47852, Oct. 29, 2009).

2) According to the evidence No. 4-1 to No. 3, it was reasonable to acknowledge that the Plaintiff had no other evidence to acknowledge that the Plaintiff had no other reason to recognize that the instant provisional disposition No. 2 had no other than the instant provisional disposition No. 200,000,000,000 won for the reason that the 2000,000,000 won was delinquent on June 5, 2012 immediately after the conclusion of the instant contract for the second sale of the instant property, and that the instant trust company had no other evidence to acknowledge that the instant provisional disposition No. 20,000,000,000 won was to be paid to the 26th,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000.

4. Judgment on the merits

(a) Occurrence of the right to revoke the fraudulent act;

(i)the existence of preserved claims;

In principle, the secured claim of obligee’s right of revocation should have arisen before the fraudulent act.As seen above, the pertinent tax claim was established between June 30, 201 and March 31, 2012, and was concluded before the date of conclusion of the first and second sales contract claiming that the Plaintiff was a fraudulent act. Accordingly, the instant tax claim against the Plaintiff is a secured claim of the Plaintiff’s bestO (at the time of conclusion of the instant 1 and second sales contract, there was no submission of data that could identify the amount of tax in the O’s maximum amount of tax in the amount of tax in the instant taxation claim, but the Defendant did not clearly dispute about KRW 900,098,580, which is claimed by the Plaintiff, and thus, the amount of the pertinent tax claim shall be considered as the amount of tax claim at the time of conclusion of the instant 1 and second sales contract).

2) Whether the debts are in excess

[1] Article 2(1) of the former Act provides that "No. 1 of the former Act provides that "No. 2 of the former Act provides that "No. 5 of the former Act provides that "No. 1 of the former Act provides that "No. 2 of the former Act provides that "No. 4 of the former Act provides that "No. 5 of the former Act provides that "No. 1 of the former Act provides that "No. 5 of the former Act provides that "no. 2 of the former Act provides that "no. 1 of the former Act provides that "no. 4 of the former Act provides that "no. 5 of the former Act provides that "no. 1 of the former Act provides that "no. 5 of the former Act provides that "no. 1 of the former Act provides that "no. 5 of the former Act provides that "no. 1 of the former Act provides that "no. 5 of the former Act provides that "no. 2 of the former Act provides that "no. 1 of the former Act provides that "no. 1 of the former Act provides 1 of the former Act shall provide that. 1 of the former Act. 1.

B) The value of the right to benefit to the instant trust property

(1) Relevant legal principles

In order to determine whether an obligor’s insolvent is a debtor’s active property, any property that cannot serve as a joint security for claims, having no substantial property value, shall be excluded, barring any special circumstances. In the event that such property is a claim, active property should be included only where it is reasonably affirmed that it would have been easily repaid if it is a claim. The same applies to the case where such property is a right to benefit to trust property. The same applies to the case where the value of a right to benefit to trust property is a right to benefit to trust property. The value of a right to benefit to trust property shall be assessed by deducting necessary expenses, trust fees, etc. from the value of the trust property anticipated at the time of the termination of the future trust, and then the remaining amount after deducting the debts to the first beneficiary shall be assessed at a discounted price at the time of the fraudulent act, and the value thereof shall not be assessed simply on the basis of the market value of the trust property at the

(2) The value of the instant trust property anticipated at the end of the trust

(A) When the trust is terminated

The value of the right to benefit to the instant trust property should be determined based on the value of the trust property anticipated at the time of the termination of the future trust based on the time of fraudulent act. As such, it is reasonable to view the time of termination of the trust as at the time of the actual disposal of the trust property after the fraudulent act as at the time of termination of the trust as at May 19, 2015, which is the expiration of the period stipulated in the trust agreement, as at the time of termination of the trust.

(B) Scope of trust property subject to evaluation of beneficial rights

Of the instant trust property, the Plaintiff asserted that the registration of ownership transfer has been completed on May 30, 2012 on the grounds of sale and purchase as of May 8, 2012, DaOOO Nos. 1301, 201, and that it should be excluded from the trust property subject to appraisal of beneficial rights. However, it is reasonable to deem that the said 301 is included in the scope of trust property subject to appraisal of beneficial rights, since the Plaintiff asserted that it was fraudulent act, around May 17, 2012, or June 5, 2012, the time when the first and second sales contract was concluded, which was the time when the Plaintiff entered into the first and second sales contract, as of June 28, 2012 (the ownership transfer registration was completed in the name of MaOO), the ownership transfer registration remains in the name of MaO (the ownership transfer registration was completed in the name of MaOO).

On the other hand, the defendant asserts that five MaOO rooms (304, 1405, 1504, 1505, 1506) sold to the mother inside of MaOO should be included in the trust property subject to evaluation of beneficial rights. However, since there is no evidence to prove that each of the above real estate was owned by MaO at the time of conclusion of the second sale contract of this case, the defendant's assertion on this part is rejected.

(C) Whether the sale rate is applied

The plaintiff asserts that the value applied the selling price rate to the appraisal value of the number of certified appraisers (hereinafter referred to as "certified appraiser") is the value of trust property, and the defendant asserts that the selling price not applied to the selling price is the value of trust property.

(5) In light of the following circumstances: (i) a trustee on the trust ledger may dispose of the trusted real estate if there is a request from the preferential beneficiary or before the expiration of the trust period, or if there is a violation of the debtor’s credit transaction agreement, etc. (Article 18); (ii) the open competitive market has characteristics that the sale price is not determined through the competition in the open market; (iii) the sale price is calculated in comparison with the actual successful bid price of the real estate with the same purpose as the real estate in the auction procedure for a reasonable period of time in the area where a specific real estate is located; (iv) the sale price of the real estate is calculated at a reasonable price of 130 million won; (v) the sale price of the real estate in question is a sale price of the real estate in question at a price of 130 million won, which is 19 billion won or more; and (v) the Defendant’s new sale price of the real estate in question is likely to be disposed of at a price of 106 billion won or more; and (iii) the Defendant’s new sale price of the trust property in question is still 10600 million won.

(D) Whether the appraisal result was unfair or not

The Defendant asserts that, in calculating the value of the trust property of this case, the appraiser was not adequate or was selected as a comparative case, and that no assessment was made on the ground that it was a normal transaction even though there were special circumstances, and that the comparative case and the trust property of this case are inappropriate, even though there were differences in various factors, the appraisal by the appraiser is excessively low-evaluation or the same assessment is conducted.

The appraiser's appraisal result should be respected unless there exist significant errors in the appraisal method, such as contrary to the empirical rule or unreasonable (see, e.g., Supreme Court Decision 2009Da84608, Jan. 12, 2012). In full view of the facts recognized and the purport of all the above evidence, the following circumstances are as follows: ① appraiser selected as an appropriate transaction case of the commercial building by considering that the difference between the appraisal method and the rent rate of 103 persons adjacent to the trust property of this case is the highest similarity between the appraisal method and the size of the whole area; ② the appraiser's first sale price of 106 days in 201 is not used as an example of the commercial building; ② it is reasonable to find the difference between the appraisal method and the rent rate of 20 years in light of the empirical rule-based difference between the appraisal method and the appraisal method of 3rd persons and the appraisal method of 4 years in comparison with the appraisal method.

(e) Sub-committee

In full view of the purport of the entire pleadings as a result of the appraiser’s appraisal, the appraiser is acknowledged to have calculated the value of the instant trust property (including 301 units) by applying the sale price rate as of May 19, 2015, which is the time of termination of the trust expected to be in the future, as KRW 1,715,209,212. Accordingly, the value of the instant trust property at the time of termination of the trust expected to be in the future is KRW 1,715,209,212.

(3) Payment of expenses, trust fees, and debts to priority beneficiaries

(A) Required expenses, trust fees, etc.

The value of the right to benefit of the trust property should be deducted from the value of the trust property anticipated at the time of the termination of the future trust. As seen above, the trust property of this case is scheduled to be disposed of through competition in the open market (public sale or auction) and there is little possibility that it will be disposed of by individual means of sale at the time of the first and second sales contract of this case. As such, since the trust property of this case was sold through the actual public sale procedure, the pertinent tax, such as public sale remuneration, public auction notification expenses, appraisal expenses, property tax notified until the time of receipt of the disposal price, such as the pertinent tax, lease deposit prior to the establishment of the trust property, the claim of the right to collateral prior to the establishment of the trust property, and the lease deposit of the lessee with legal opposing power, from the value of the trust property (Article 203 through 205 of the instant trust property of this case is merely a tenant's title, and there is no actual lease relation, it cannot be admitted that the above defendant's assertion that the above lease deposit should be excluded from the above evidence 201 to 25.

(B) Liability deductions for the preferential beneficiary

In full view of the statements in Eul evidence No. 11 and the purport of the entire pleadings as a result of the appraiser's appraisal, it is recognized that the first beneficiary's obligation to be deducted from the value of the trust property of this case constitutes 1,246,584,510 won including normal interest of KRW 1,192,63,947, which is the sum of KRW 515,533,273,677,130,674,67,674, 192,663,947.

(c)Calculation;

In full view of the purport of the entire pleadings as a result of the appraiser’s appraisal, it is recognized that the sum of the pertinent taxes, such as public auction remuneration, expenses for public auction notification, appraisal expenses, property tax notified until the disposal price is received, etc., deposit prior to the establishment of trust property, claim of the right to lease prior to the establishment of trust, lease deposit of the lessee with legal opposing power, lease deposit of the lessee and the right to lease of the priority beneficiary (OSS) constitutes 1,346,81,360. Therefore, if the above expenses are deducted from the value of the trust property of this case at the time of the end of the next trust, the remaining amount is 368,327,852 won (=1,715,209,209,212 -1,346,81,360 won).

(4) The present price discounted at the time of the fraudulent act

The date of concluding the 1st sale contract of this case is May 17, 2012. The date of concluding the 2nd sale contract of this case is not much distanceed on June 5, 2012, and the date of concluding the 2nd sale contract of this case is not much distanceed on June 5, 2012, and the buyer is both the defendant. Thus, the above amount shall be discounted at the current value on June

In full view of the purport of the entire arguments as a result of the appraiser's appraisal, it is recognized that the appraised value of the right to benefit at a discounted value on June 5, 2012 is 309,763,724 won (=368,327,852 won x 0.841).

C) Sub-determination

In full view of the above facts, mostO’s active property at the time of concluding the first and second sales contract of this case (= KRW 309,763,724 + KRW 110,00,00 + KRW 150,000 + KRW 5,054,00 + KRW 756,000 + KRW 970,098,580 in total (= KRW 900,098,580 + KRW 70,000). Thus, at that time, the mostO was in excess of its obligation.

(iii)the intent to commit fraudulent act and to commit suicide;

Unless there are special circumstances, it is a fraudulent act in relation to other creditors, barring special circumstances, in which the largest part of each of the assets is occupied by sale of each of the real estate in this case even though the leastO had already been missing in excess of the obligation.

In light of the various circumstances revealed in the argument in the instant case, such as the Plaintiff’s financial status at the time of the conclusion of the instant 1 and 2 sales contract, it is reasonable to deem that the MaximumO was aware that the shortage of joint collateral due to each of the instant dispositions was caused by the shortage of claims. Therefore, it is presumed that the Defendant, the beneficiary, was aware that the first and second sales contract of the instant case was detrimental to the Plaintiff, the obligee of the largestO.

4) Determination as to the defendant's bona fide defense

A) Defendant’s defense

In regard to this, the defendant did not know about the mostO's specific financial status, especially about the default of national taxes, and did not know the existence of creditors including the plaintiff, etc., and merely did not know about the existence of the plaintiff, etc., according to the MaximumO's explanation, it is expected that a high return would be made if the real estate market is living in the future as well as the development city is good as the location condition is located in the development city. Thus, the defendant concluded a contract for the first and second sales of this case, and paid the purchase price by the secured loan, etc.

B) Determination

In a lawsuit seeking revocation of a fraudulent act, a beneficiary or a subsequent purchaser is liable to prove the fact that he/she is in bad faith with respect to the fact that the beneficiary or the subsequent purchaser is acting in bad faith, and in recognizing that the beneficiary or the subsequent purchaser was acting in good faith at the time of the fraudulent act or the preceding purchase in cases where the debtor’s act of disposal of property constitutes a fraudulent act, it shall be based on objective and conclusive evidence, etc.; however, it shall not be readily concluded that the beneficiary or the subsequent purchaser was acting in good faith at the time of the fraudulent act or the subsequent purchase only on the grounds of the unilateral statement of the debtor or the beneficiary or the statement that is merely a third party’s conjection (see, e.g., Supreme Court Decision 2014Da23719

In light of the following circumstances, the court below acknowledged that the defendant, as the first and second sales contracts of this case, had difficulty in returning the balance of the loan principal amounting to 6.4 billion won as at the time of new construction because the plaintiff, the first and second sales contracts of this case, had been concluded on April 19, 2014, the defendant's assertion that it was difficult for the plaintiff, the second and second sales contracts of this case, the plaintiff, the first and second sales contracts of this case, had been concluded on the premise that it was difficult for the plaintiff, the first and second sales contracts of this case, the plaintiff, the second and second sales contracts of this case, the second and second sales contracts of this case were concluded on the premise that the plaintiff, the second and second sales contracts of this case, the second and second sales contracts of this case, had been concluded on the premise that it was difficult for the plaintiff, the second and second sale contracts of this case, the last sale of the real estate of this case, and the other sales contracts of this case, the plaintiff, the last sale prices of this case, had not arrived.

5) Sub-committee

The sales contract of the instant case Nos. 1 and 2 should be revoked as it constitutes a fraudulent act, and the Defendant bears the duty to restore the status accordingly.

(b) Scope of revocation of the fraudulent act and the method and scope of restitution;

1) Relevant legal principles

If a creditor’s revocation of a fraudulent act and a claim for restitution are acknowledged, the beneficiary is obligated to return the subject matter of the fraudulent act to the debtor as restitution, and if it is impossible or considerably difficult to return the subject matter of the fraudulent act, the beneficiary is obligated to compensate for the value equivalent to the value of the subject matter of the fraudulent act as a performance of the duty to restore if it is impossible or considerably difficult to return the subject matter. Here, the term “case where the return of the subject matter is impossible or considerably difficult” refers to cases where the realization of the performance cannot be expected in light of the social experience rules or the concept of transaction, rather than cases where the return of the subject matter is simply absolute or physically impossible. If the subject matter of the fraudulent act is transferred from the beneficiary to the subsequent purchaser and its registration is completed, regardless of whether the subsequent creditor is entitled to remedy the subsequent purchaser through a lawsuit, it is reasonable to view that the beneficiary has a status of legal impossibility to restore the subject matter to the creditor (see, e.g., Supreme Court Decision 97Da58316, May 15, 199

Meanwhile, when a creditor exercises his/her right of revocation, he/she cannot, in principle, exercise his/her right of revocation in excess of his/her claim amount (see Supreme Court Decision 2001Da64547, Dec. 11, 2001). Barring special circumstances, the creditor is only entitled to revoke his/her fraudulent act and seek compensation for damages within the scope of the smaller amount between his/her secured claim amount and his/her joint security value, which is the object

2) Determination in this case

As seen above, since the transfer registration of ownership in the name of the defendant was sold to a third party through a voluntary auction procedure after the completion of the transfer registration of ownership in the name of the defendant, it is reasonable to deem that the restoration of the original property as a result of the cancellation of the first and second sales contract of this case falls under the case where it is impossible or considerably difficult to return the original property as the restoration. Thus, the restoration should be made by the method of compensation for value. Meanwhile, the fact that the total amount of the taxation claim of this case sought by the plaintiff as the preserved bond is 90,098,580, and that the total bid price of each of the real estate in this case, which is the common bond of the general creditors, is 94,627,010, as seen above, is less than the value of the common bond which is the object of fraudulent act. Accordingly, the cancellation and compensation for the transfer registration of the above fraudulent act is more than the value of each of the above real estate held by the defendant's 200,098,580 won.

C. Sub-committee

Therefore, the Defendant and MaO shall cancel the 1, 2, and 900,098,580 won which was entered into with respect to each of the instant real property within the limit of KRW 900,098,580, and the Defendant shall be liable to pay the Plaintiff the amount of damages for delay calculated at the rate of 5% per annum under the Civil Act from the day following the day this judgment became final to the day of full payment.

5. Conclusion

The plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, part of the plaintiff's appeal is accepted, and it is decided to revise the judgment of the court of first instance as ordered.