Suwon District Court-2012-Gohap-6854 (2012.06)

Whether it constitutes a fraudulent act

The acquisition of the instant real property’s ownership through division of property is beyond the considerable degree of division of property, and constitutes fraudulent act.

2012Na85306 Revocation of Fraudulent Act

Korea

Ma-○

Suwon District Court Decision 2012 Gohap6854 Decided 09.06, revocation of fraudulent act

2013.05.31

2013.07.03

1. Of the judgment of the court of first instance, the part against the plaintiff falling under any of the following cancellations and orders shall be revoked.

A. The sales contract concluded on March 10, 2009 with respect to the real estate listed in the separate sheet between Ma○○ and the Defendant shall be revoked within the scope of KRW 114,565,286.

B. The defendant shall pay to the plaintiff 114,565,286 won with 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of complete payment.

2. The plaintiff's remaining appeal is dismissed.

3. The total costs of the litigation shall be divided into two parts, one of which is born by the plaintiff, and that of which is born by the plaintiff.

The judgment of the first instance shall be revoked. The sales contract for the right to claim ownership transfer concluded on February 2, 2009 and the sales contract concluded on March 10, 2009 with respect to the real estate listed in the separate sheet between Ma○○ and the defendant shall be revoked. The defendant shall pay to the plaintiff 210,000,000 won and the amount at the rate of 5% per annum from the day after the date the judgment of this case became final to the day of full payment.

1. Basic facts

A. Tax claim against the Plaintiff’s Ma○○

1) On April 27, 2007, 2007, ○○○○○○○○, ○○○○-dong, 6-3, 353.4, and one parcel of land and its ground building (hereinafter referred to as “transfer subject matter of this case”) were sold to one another, who was the husband of the Defendant, KRW 230 million, and completed the registration of transfer of ownership on the transfer subject matter of this case on April 27, 2007.

2) On January 4, 2010, the head of the ○○○○ Tax Office, under the Plaintiff’s control, notified ○○○○ to pay KRW 522,518,390 of the transfer income tax on the instant transferred object by February 23, 2010. The total amount of the transfer income tax, value-added tax, and global income tax on the instant transferred object, even though the tax liability was established on January 1, 2009, including the said transfer income tax on the instant transferred object, but is KRW 1,086,454,150, including the said transfer income tax on the instant transferred object.

B. Changes in the legal relationship concerning the instant real estate

"1) On August 30, 2007, on title trust with Kim○-○ on the real estate listed in the separate sheet (hereinafter referred to as "the instant real estate"), and on September 5, 2007, on the instant real estate, Kim○-○ completed the registration of ownership transfer on September 5, 2007." (2) on May 14, 2008, Kim○-○ concluded a pre-sale agreement with Kim○-○ on sale of 60,100 won for the instant real estate, and completed the provisional registration of the right to claim ownership transfer (hereinafter referred to as "provisional registration of this case").

"3) On February 2, 2009, the Defendant entered into a contract with Kim○○ to acquire the ownership transfer right of the instant real estate in the price of KRW 45 million (hereinafter referred to as “instant one contract”). Kim○ on February 3, 2009, Kim○ issued a notification of the transfer to Kim○○, and the registration of transfer of the instant provisional registration was completed in the future of the Defendant; hereinafter referred to as “4”) between Kim○ and Kim○ on March 10, 2009, the Defendant purchased the instant real estate in the price of KRW 280 million (hereinafter referred to as “instant two contracts”); and on May 6, 2009, the instant one and two contracts were concluded, and on May 6, 2009, the principal registration of the instant provisional registration was completed by the Defendant and ○○○.”

On January 7, 2009, the defendant and Ma○○ agreed to divorce, and on April 8, 2009, ○○ District Court 2009No. 139 confirmed the intention of divorce, and reported the divorce on April 10, 2009.

2. Whether a fraudulent act is constituted

A. Determination as to the parties to the instant 1, and 2 contracts

1) The assertion

Although each contract of this case was concluded between the defendant, Kim○ and the defendant, and Kim○, a title trustee, on the outside form of the contract of this case, it is nothing more than an act of provisional registration, since it was merely a method of arbitrary choice between the defendant and the defendant in the process of cancelling the title trust and returning it to the original state. In fact, the contract of this case was concluded between pregnant○○ and the defendant. Since Ma○○ at the time when the contract of this case was concluded with the defendant, Ma○ was in excess of his obligation, the contract of this case was concluded with the defendant, and thus, each contract of this case constitutes a fraudulent act. Accordingly, as long as ○○, a title trustee Kim○, made a provisional registration against the defendant on May 14, 2008 and ○○○ on the real estate of this case, Ma○ constitutes a third person under Article 4 (3) of the Act on Real Estate under Actual Titleholder's Name, etc. (hereinafter referred to as "Real Estate Name Act"), it cannot be asserted that the contract of this case was void between the defendant 200 and the above.

2) Determination

A) Determination as to the instant one contract

Article 4 (1) and (2) of the Real Estate Real Name Act invalidates any change in the real rights to real estate made by a registration under a title trust agreement and a title trust agreement, and according to the facts recognized above, the title trust agreement entered into between Y○○ and Kim○○ and the registration of transfer of ownership in the name of Kim○○ with respect to the instant real estate are null and void in accordance with Article 4 (1) and (2) of the Real Estate Real Name Act. Therefore, the real owner of the instant

However, according to Article 4 (3) of the Real Estate Real Name Act, a title trust agreement and registration of transfer of ownership cannot be asserted against a third party with the invalidity of title trust agreement and registration. If the purport of the entire argument is integrated in the statement No. 3, ○○○○○, the husband of the title trustee Kim○○, borrowed KRW 40 million from Kim○○○, without the consent of Y○○○, and it can be recognized that ○○ was convicted of embezzlement (Seoul Central District Court 2009Dadan2984) due to the act of harming the provisional registration of the right to claim ownership transfer on the real estate in this case, and Kim○○ constitutes a third party with an independent interest in the real estate through a transaction with Kim○, the trustee, and ○○○○ appears not to have been involved in the act of provisional registration in the name of ○○○○, which became the basis for determining the reason for testimony in relation to the above embezzlement case, it is difficult to view that the Plaintiff’s assertion that the contract in this case was the subject of the agreement between Kim○○○ and the creditor of this case.

B) Determination as to the instant two contracts

In full view of the following circumstances acknowledged by the above evidence, the two contracts of this case have the same appearance as the defendant entered into with Kim○, but the defendant and Kim○○ concluded the two contracts of this case by mutual agreement that the legal effect under the two contracts of this case takes place to the title truster, not Kim○, who is the title trustee of the real estate of this case, and thus, the contract between the defendant and Kim○○ constitutes the most active act, and the defendant should be deemed to have entered into the two contracts of this case as division of property between Kim○ and the former and the latter, and transfer the ownership of the real estate of this case to the latter. Therefore, it is reasonable to deem the parties to the two contracts of this case as the parties to the two contracts of this case as the defendant.

© 피고는 임○○이 김○○에게 이 사건 부동산을 명의신탁하여 소유권이전등기를경료해준 후인 2007. 9. 27. 임○○의 김○○에 대한 채무를 대위변제하고 김○○ 명의의 가압류를 말소하였는바，피고는 이 사건 부동산의 실질적 소유자가 임○○이고 임○○이 이 사건 부동산을 김○○에게 명의신탁하였다는 점을 잘 알고 있는 상태에서 임○○과의 협의 하에 부부공동의 재산을 관리하는 차원에서 임○○의 김○○에 대한채무를 변제하고 이 사건 부동산에 관한 김○○ 명의의 가압류를 말소한 것으로 보인② 피고가 2009. 2. 2. 김○○으로부터 대금 4,500만 원에 이 사건 부동산에 관한 소유권이전청구권을 양수하고 2009. 2. 3. 이 사건 가등기의 부기등기를 경료한 것도 김○○의 남편인 유○○의 횡령행위로 김○○ 명의의 가등기가 경료됨으로써 이 사건 부동산의 소유권을 상실할 위험을 제거하기 위하여 당시 협의 이혼을 진행하던 상태에서이혼에 따른 재산분할의 대상이 될 부부공동의 재산을 관리하는 차원에서 한 것으로 보인다.

③ At the time of March 10, 2009 when the instant two contract was concluded, the title trustee Kim ○, the husband of the title trustee Kim ○○, borrowed KRW 40 million from Kim○○, without the permission of her ○○○○, and the investigation was conducted on embezzlement for which a provisional registration of the right to claim ownership transfer was made with respect to the instant real estate, and thus the prosecution was taken place immediately before the execution of the indictment. If, as the Defendant alleged, the Defendant and Kim ○ were to have concluded a sales contract based on an agreement between the Defendant and Kim ○ and the Defendant to bring about an occurrence of the Defendant and Kim○○, and if the ○○○ did not participate in this, the said sales contract was a new embezzlement of the instant real estate of ○○○ (YO○). At the time of having concluded a provisional registration of the right to claim ownership transfer against Kim○○○ and concluded a new sales contract with the Defendant’s spouse, which was well aware of the fact of title trust as the victim’s spouse in light of the empirical rule.

④ Furthermore, considering that the Defendant, who is the actual owner of the instant real estate, was well aware of the title trust of the instant real estate to Kim○○, and that the instant real estate has been managed as joint property of the married couple, the Defendant cannot be deemed to have concluded the instant two contracts with Kim○○ by wishing to have the effect of the contract between Kim○ and Kim○, with the intent to bring about to Kim○○. According to the Defendant’s assertion, the Defendant is obliged to additionally pay KRW 145 million, except for the secured debt of the right to collateral security in the name of ○○ Agricultural Cooperative and Park○○○○, which the Defendant agreed to acquire, and there is no evidence to deem that the Defendant actually paid KRW 145 million to Kim○○.

B. Existence of a fraudulent act’s claim to be preserved

According to the above facts of recognition, the Plaintiff’s tax liability prior to January 1, 2009 constituted the Plaintiff’s tax liability of KRW 1,086,454,150 and the additional charges and increased additional charges incurred until the time of the closing of arguments in the fact-finding court.

(c) Whether debts exceed the debts;

At the time of the instant second contract, ○○ was in excess of the obligation as indicated in the table 1 below.

D. The nature of the two contracts of this case

In light of the fact that the divorce between the Defendant and YO is merely a disguised act for the purpose of evading the obligation, but there is no evidence to prove that the agreement between the Defendant and YO was a mere donation, but there is no evidence to acknowledge that the agreement between the Defendant and YOO was in progress at the time of the conclusion of the instant agreement. On the other hand, it is reasonable to view that the Defendant acquired the instant real estate through the division of property due to the division of property upon the divorce, in light of the fact that the ownership of the instant real estate was transferred due to the instant agreement on April 10, 209 on May 6, 2009 on the ground of the instant agreement.

Determination on whether division of property exceeds the reasonableness of division of property

1) Parties’ assertion

At the time of the divorce, ○○, at the time of consultation, was liable to the Plaintiff for tax liability of KRW 1,086,454,150 against the Plaintiff. On the other hand, it was the real estate of this case (280,000,000) with active property, and there was no remaining amount when deducting the above obligation from active property, and the Defendant cannot claim a division of property against 00,000. Therefore, the division of property under the instant two contracts exceeds a reasonable scope, thereby constituting fraudulent act.

In light of the fact that the Defendant, as well as the Defendant, repaid the Defendant’s obligation to ○○ Kim○, and cancelled the provisional attachment in the name of Kim○, which was completed on the instant real estate, and that the Defendant repaid the obligation to ○○ and ○○○○○’s obligation to ○○ ○○ ○○ ○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

2) Determination

A) Relevant legal principles

Property division by divorce is a system that has economic difficulty in the nature of liquidation of common property achieved through mutual cooperation between the married couple, and it would result in the reduction of joint property security for the general creditor by transferring a certain property to the spouse as a division of property while the debtor in excess of his/her debt has divorced, barring any special circumstance that it is deemed that such division of property exceeds a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act, it is not the object of revocation by the creditor as a fraudulent act, but it is not the object of revocation by the creditor, but can be the object of revocation by the reason that it is not a legitimate property division with respect to the portion exceeding a considerable degree, but there is a special reason that it is excessive property division beyond a considerable degree.

Inasmuch as the current marital property system is based on the separation of husband and wife, in principle, each husband and wife’s obligation is borne by each husband and wife. When a husband and wife divorces, in addition to ordinary family affairs, the obligation borne by a third party during marriage is, in principle, not subject to liquidation as an individual’s obligation, in addition to ordinary family affairs, but it is subject to liquidation if the obligation is a debt incurred by the formation and maintenance of common property, and even if the specific positive property acquired by the obligation remains, it is recognized that the obligation bearing the obligation is for common interests of both husband and wife, it shall be deemed that it is accompanied by the formation and maintenance of common property during marriage (see Supreme Court Decision 2005Da74900, Sept. 14, 206). If the claimant’s property status is deducted from active property owned by each husband and wife, etc., and the other party’s obligation is more active than the share to be attributed to the third party during marriage, and if it is found that the other party’s claim for division of property is more than 1, more than 20.

B) Determination on the instant case

According to the above facts and the above evidence, the property subject to division of property between the defendant and pregnant ○○ at the time of the divorce between the defendant and pregnant ○○ shall be as listed in the table 1 below.

As set out in Table 1., at the time of the combination's divorce, the small property subject to division of property is remarkably larger than the active property, and according to the evidence No. 10, the defendant can be found to have had active property such as condominium membership and BMW, which are 49,836,000, the acquisition value of which is 30 million won, and 49,836,000.

In light of the above relevant legal principles, division of property between the defendant and her former ○○○ is deemed to have been conducted in a way that the defendant shares the obligation owed by her former ○○ by way of the division of property, since the total amount of the negative property significantly exceeds the total amount of positive property. The Defendant’s acquisition of the ownership of the instant real property through division of property without sharing the obligation constitutes a fraudulent act as it goes beyond a considerable degree of division of property. Even if the Defendant acknowledged the Defendant’s repayment of the obligation to her former ○○ Kim○ and Kim ○, who is the nominal trustee, and the fact that the obligation to her former ○○○ was repaid to her former ○○○ at the time of the instant two contracts, it is insufficient to reverse the recognition, and there is no other counter-proof. In addition, considering the fact that her obligation was over-paid at the time of the instant two contracts, and the relationship with the Defendant was presumed

3. Scope of revocation of the fraudulent act and return of value.

A. Relevant legal principles

In a case where a juristic act on a certain real estate constitutes a fraudulent act, in principle, the cancellation of the fraudulent act and the cancellation of the registration of the transfer of ownership, shall be ordered. However, in the case where the real estate on which the mortgage is established is transferred to a fraudulent act, such fraudulent act shall be established only within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate, and in the case where the registration of creation of mortgage is cancelled by repayment, etc. after the fraudulent act, and in order to restore the real estate itself by cancelling the fraudulent act, it would be ordered to restore the portion which was not originally registered as the joint security of the general creditors, and it would result in a violation of fairness. Therefore, it is only possible to claim for the cancellation of the fraudulent act and compensation for the value thereof within the extent of the balance obtained by deducting the secured debt amount of the mortgage (Supreme Court

4,004)

B. Determination

On June 9, 2009, after the real estate was transferred to the defendant by fraudulent act, Gap evidence No. 2 was written in full view of the purport of the argument, and the real estate of this case was transferred to the defendant by fraudulent act. On December 1, 2004, ○○ District Court ○○○○○ Registry, which was established on the real estate of this case, 98,00,000 won for the maximum debt amount of No. 37394, Dec. 1, 2004, and the debtor ○○○, ○○○○, and ○○ Agricultural Cooperative, which was established on the real estate of this case, was established on November 28, 2007, when the establishment registration of a mortgage was established on the real estate of this case, and ○○○, a debtor ○○, and ○○ Agricultural Cooperative, ○○,000 won for the establishment of a mortgage, the entire contract of this case was cancelled, and only the value of the real estate of this case can be cancelled.

The market price of the real estate of this case at the time of the conclusion of the argument in the trial is 280,00,000 won and there is no dispute between the parties, and according to the facts and the statement in Gap evidence No. 11, the sum of the secured debt of each of the real estate established in the real estate of this case is KRW 165,434,714 as of the time of the conclusion of the argument in the trial at the time of the trial at the court at the court at the court at the court at the court at the above real estate ( KRW 77,434,714, and KRW 8,000,000 for the obligation to ○○○○○○,000) and the balance calculated by deducting the total amount of secured debt from the above real estate value is KRW 114,565,286.Therefore, the two contracts at the court at the court at the time of the trial at the court at the trial at the court at the court at the court at the court at the court at the court at the trial at the court at the court at the trial at the trial at the court at the court at

4. Conclusion

Therefore, the plaintiff's claim against the defendant against the defendant shall be accepted within the extent of the above recognition, and it shall be dismissed as it is without merit. Since the judgment of the court of first instance differs from this part of the judgment, the part against the plaintiff corresponding to the above cancellation and performance order of the judgment of the court of first instance shall be revoked and the remaining appeal of the plaintiff shall be dismissed as it is without merit. It is so decided as per Disposition.