Changwon District Court 2013dan78238 (No. 21, 2014)

Property division is a fraudulent act if it is too excessive to the extent contrary to the purport of the provision of Article 839-2(2) of the Civil Code.

As a result of the reduction of joint security against general creditors due to insolvent by division of property, and division of property is in contravention of the purport of Article 839-2(2) of the Civil Act, it becomes subject to creditor's right of revocation as a fraudulent act.

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

2014Na32513 Revocation of Fraudulent Act

Korea

00

Changwon District Court Decision 2013Da78238 Decided July 11, 2014

December 18, 2014

January 22, 2015

1. All appeals filed by the plaintiff and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

On December 2, 2011, the sales contract concluded on December 2, 201 with respect to the real estate stated in the separate sheet between the maximum 00 and the defendant has been revoked, and the defendant will implement the procedure for the cancellation registration of transfer of ownership completed on December 15, 201 by the 00 district court 00 registry office of 00 registry office of 00 registry office of 200

2. Purport of appeal

Plaintiff: The part of the judgment of the first instance court against the Plaintiff falling under any of the following orders shall be revoked. The sales contract concluded on December 2, 201 with respect to the real estate listed in the separate sheet between the maximum 00 and the Defendant shall be revoked within the scope of 1/2, and the Defendant shall implement the procedure for the cancellation of ownership transfer registration completed on December 15, 201 with respect to the 1/2 portion of the above real estate to the maximum 00 registry offices of 00 district court 00 registry offices of 00 registry offices of

: Cancellation of the part of the judgment of the first instance, and the plaintiff's claim corresponding to the above cancellation shall be dismissed.

1. Facts of recognition;

A. From October 1, 2008 to March 20, 2013, the maximum amount of 00 won was a person who has been engaged in a general automobile transport business under the trade name, such as 00 transportation, 00 shipment, 00 transportation, 00 transportation, 00 transportation, and 00 transportation, and the head of the tax office has notified each of 3,350,260 won for 4 global income tax on November 30, 2010, and 1,94,000 won for 1,94,000 won for value-added tax on December 31, 2010 and 3 10,208,2008,60 won for value-added tax on October 25, 2010, but did not pay it, and the maximum amount of national taxes in arrears was as follows (hereinafter “instant tax claim”).

B. On July 8, 1985, the maximum0 reported marriage with the Defendant on July 8, 1985, and on November 8, 2011, reported divorce with the Defendant.

C. On December 2, 2011, the maximum00 entered into a sales contract on the real estate listed in the separate sheet (hereinafter “instant real estate”) with the Defendant (hereinafter “instant sales contract”) and completed the registration of ownership transfer under the receipt No. 000 of the district court 00 registry office on December 15, 201.

D. At the time of the instant sales contract, the instant real estate was the only real estate of maximum 00, and the maximum 00 was in excess of the debt.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, Eul evidence 9 (including each number), the purport of the whole pleadings

2. Determination on this safety defense

The Defendant asserted that the instant lawsuit filed on July 29, 201, the exclusion period of which was extended to the Defendant on December 15, 201, and at that time, the acquisition tax, education tax, etc. was paid to the competent authorities in relation to the instant real estate. As such, the Plaintiff ought to be deemed to have been aware of the fact that the instant real estate was transferred from the maximum 00, and that the instant lawsuit filed on July 29, 2013, which was later than one year thereafter, was unlawful.

A creditor's revocation lawsuit shall be filed within one year from the date when the creditor becomes aware of the cause for revocation (Article 406 (2) of the Civil Act). In the exercise of the creditor's right of revocation, "the date when the creditor becomes aware of the cause for revocation" means the date when the debtor becomes aware of the fact that he/she committed a fraudulent act while being aware of the fact that he/she had harmed the creditor. This is insufficient to simply recognize the fact that the debtor performed a disposal act of the property, and furthermore, it is required to know the existence of a specific fraudulent act and to know the fact that the debtor had an intention of deception (see, e.g., Supreme Court Decision 2007Da63102, Mar. 26, 2009). The evidence submitted by the defendant alone is insufficient to find that the plaintiff was aware of the fact that the contract of this case was concluded on December 15, 201 and that the sales contract of this case was prejudicial to the plaintiff, and there is no other evidence to support this.

3. Determination as to the cause of action

A. Summary of the parties' assertion

1) Plaintiff’s assertion

The maximum 00 is the divorce between the Defendant and the Defendant without the intention of genuine divorce in order to evade the performance of the tax obligation, and the sale of the instant real estate to the Defendant through the instant sales contract is null and void by a false representation of conspiracy. Even if the divorce between the Defendant and the maximum 00 is genuine, and even if the instant sales contract was concluded with the division of property, such division of property is excessive beyond a considerable degree, and thus, the instant sales contract constitutes fraudulent act.

2) Defendant’s assertion

The real estate of this case was purchased on December 1, 200 from the Defendant’s maximum amount of money collected by the Defendant while living in the workplace with the Defendant prior to marriage with the Defendant’s mother on December 1, 2001, with the amount equivalent to the Defendant’s maximum amount of 00, and was trusted to the Defendant’s maximum amount of 00, and only the Defendant recovered the owner’s name while divorced with the maximum amount of 00. Even if it is not so, the real estate of this case was donated to the Defendant under the pretext of division of property, consolation money, and child support according to divorce, and this does not constitute a fraudulent act.

B. Whether a divorce between the defendant and the maximum 00 is the most divorced

The intention of divorce in divorce refers to an intention to resolve legal marital relations. As long as a declaration of divorce has been made by agreement between the parties intending to temporarily resolve marital relations under the law of the same law, even if there exists any other purpose in divorce, it cannot be said that both parties have no intention of divorce. Therefore, such agreement shall not be deemed null and void as a divorce (see, e.g., Supreme Court Decisions 76Do107, Sept. 14, 1976; 2011Da80708, Feb. 9, 2012).

In light of the above legal principles, the following facts are as follows: (a) the maximum of 00 persons shared with the Defendant under the status of notice of national taxes, such as global income tax, etc.; (b) the maximum of 00 persons transferred the address to the Defendant’s building owned by the Defendant’s right of return; (c) the address entered in the global income tax return for the year 201, which was submitted after the divorce, is still being entered in the Defendant’s domicile; and (d) there is no room to doubt that the divorce between the 00 and the Defendant’s agreement is for other purposes. However, it is insufficient to conclude that the divorce was made solely without the intention to temporarily resolve the marital relationship between the maximum of 00 and the Defendant, and there is no other evidence to prove this.

Therefore, the plaintiff's assertion that the contract of this case is the false representation of the conspiracy that was made according to the fictitious divorce is not accepted.

C. Determination as to the fraudulent act of the instant sales contract

(i) A preserved claim;

There is no dispute between the parties as to the fact that the Plaintiff’s claim against the Plaintiff’s maximum 00 becomes the preserved claim in exercising the obligee’s right to revoke the instant sales contract.

2) Determination as to whether the instant sales contract can be seen as division of property

In light of the following circumstances that can be recognized by comprehensively taking into account the respective descriptions of No. 1, No. 1, and No. 9 as well as the overall purport of arguments, namely, (i) the Defendant and the maximum00 reported a marriage on July 8, 1985 and reported a divorce on November 8, 201; (ii) the maximum of 00 at the time of the divorce between the above agreement does not appear to have been divided into the Defendant’s property other than the instant real estate; (iii) the above agreement between the Defendant and the maximum of 00 and the Defendant cannot be concluded as a divorce; and (iv) there is no evidence to prove that the agreement is the management of the Defendant’s property under the name of the Defendant after the divorce. In light of the above, it is reasonable to deem that the instant sales contract has the nature of division of property following the divorce.

On the other hand, the defendant alleged that the money collected while living in the workplace before marriage and the mother of the defendant purchased the money with the equivalent money and held in title trust to the maximum of 00. However, it is not sufficient to recognize only the statement of No. 4, and there is no other evidence to acknowledge it.

3) Determination as to whether property division is appropriate

In divorce, division of property shall contribute to the maintenance of the other party’s livelihood at the time of liquidation and distribution of the actual common property that the couple had in the marriage, but at the same time, division may be possible including the nature of payment to compensate for mental damage caused by divorce by the division’s responsible act. In determining the amount and method of division of property, considering the amount and other circumstances of the property achieved through mutual cooperation between the parties is apparent under Article 839-2(2) of the Civil Act. Thus, even if the division of property is insolvent, the amount and method of division may be determined including the amount of the debt to be borne by the division and the degree of contribution to the formation of the common property even if the division becomes insolvent, and even if the division of property becomes insolvent by the division of property and reduces joint security against the general creditor, such division of property may not be deemed reasonable contrary to the purport of Article 839-2(2) of the Civil Act, and the amount and method of division may not be limited to the portion which is subject to revocation by the former, unless special circumstances exist.

As to the instant case, the following circumstances, which can be recognized by the overall purport of statements and arguments as to Gap's health care room, Gap's evidence Nos. 1 through 3, 6, 7, and Eul's evidence Nos. 5 through 9, i.e., ① since February 191, 191, the maximum 00 continued operation of several transportation companies since the start of 00 transportation companies; ② The consultation between the defendant and the maximum 00 meters with the defendant on September 16, 201, 200 00 61-1 and 435 m20 m20 m200 m200 m2, 300 m200 m200 m2, 300 m200 m20 m2, 300 m30 m2, 200 m20 m3, 200 m2, 300 m2, etc., the plaintiff's property.

On the other hand, the following circumstances that can be acknowledged by comprehensively taking account of the respective descriptions in the evidence Nos. 11 and 12 as well as the overall purport of the pleadings, i.e., the defendant completed a marriage report with the maximum of 00 million won on July 8, 1985, and completed a marriage for 26 years as a husband and wife, and two children were in operation of the BB transport business. The defendant seems to have contributed to the multiplication of the property until it is divorced with the maximum of 00. ② The defendant appears to have contributed to the multiplication of the property until it is divorced with the maximum of 00; ② The cause of the divorce with the maximum of 00 children appears to be the main cause; ③ the defendant was responsible for all the two children after the divorce; ④ The market price of the real property in this case at the time of the closing of argument at the trial is recognized as having been set at the maximum of 102,00,000 won or maximum debt amount; and ④ the real property division amount of 600,000 won or more.

4) Scope of the establishment of fraudulent act

In accordance with the above division of property, the pertinent real estate, which is the subject of division of property, shall have to have to have to have to have to have to have to have to have to have to have to have to have to have to have to have to have to have to have to a maximum of 00 shares among them, and thus, a fraudulent act is established within the scope of one-half shares exceeding

D. Sub-committee

Therefore, the instant sales contract concluded with respect to the instant real estate shall be revoked within the limit of 1/2 of the instant real estate, which is recognized as a fraudulent act against the least 00 creditors, and the Defendant, the beneficiary, as to the 1/2 shares of the instant real estate following its revocation, is obligated to implement the procedure for the registration of cancellation of ownership transfer which was completed by the instant sales contract to the least 00

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit, and the judgment of the court of first instance is just in this conclusion, and the appeal of the plaintiff and defendant is dismissed as it is without merit. It is so decided as per Disposition.