Whether a fraudulent act is constituted

If a sale is conducted at a price below the appraised value, a fraudulent act is established.

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

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

The purchase and sale contract between the defendant and ○○ Co., Ltd. on January 10, 2005 regarding real estate listed in the separate sheet shall be revoked within the limit of KRW 295,804,800. The defendant shall pay to the plaintiff 295,804,800 with 5% interest per annum from the day following the day when the judgment of this case became final and conclusive to the day of full payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Basic facts

The following facts are either disputed between the parties, or acknowledged as being based on Gap evidence 1-1-1-10, Gap evidence 2-3, Gap evidence 4-1-2, Gap evidence 5-1-2, Gap evidence 11, Gap evidence 14, Eul evidence 1-1-3, and Eul evidence 5-1-3.

(a) Tax arrears of ○○ Stock Company;

(1) On October 31, 2004, 2004, 10,126,000 won of corporate tax for 204 years prior to the payment period, and December 31, 2004, 2004, which was notified in December 31, 2004 as the payment period, but did not pay the purchase tax invoice. The fact that ○○ Company received the purchase tax invoice without actual transaction was discovered and was subject to tax investigation from the ○○ Tax Office from December 30, 204 to January 15, 2005, and as a result, it received the notice from the ○○ Tax Office to impose and notify the value-added tax, corporate tax, income tax, retirement income tax, etc. for 202 years prior to the payment period (On the other hand, the amount of income for 2003 years prior to the above tax and the amount of income for 203 years prior to the disposition of income and retirement income accrued to Nonparty 205.

(2) However, the non-party company did not pay it, and accordingly, the tax amount in arrears of the non-party company including additional dues and increased additional dues that occurred until March 13, 2006 reaches the total of KRW 1,188,319,750 (hereinafter referred to as “instant tax claim”) as stated in the attached Table of National Tax Default.

B. Disposition of real property of the non-party company

(1) On January 20, 2005, the non-party company completed the registration procedure for transfer of ownership on the real estate listed in the separate sheet owned by the non-party company (hereinafter referred to as "the real estate of this case") due to the sale on January 10, 2005 (hereinafter referred to as "the sales contract of this case").

(2) Meanwhile, prior to the conclusion of the instant sales contract, the instant real estate was respectively set up two cases of the maximum debt amount of KRW 600,000,000 with the maximum debt amount of KRW 200,000 and the maximum debt amount of KRW 200,000 under the name of the branch of the Industrial Bank of Korea. The Defendant repaid to the branch of the Industrial Bank of Korea of Korea the sum total of KRW 800,386,192, which was 707,00,000,000,000, which was 707,000,000,000 won, and revoked the said collateral on April 29, 2005.

C. Insolvent of the non-party company

(1) When entering into the instant sales contract, the non-party company did not have any specific positive property other than the instant real estate, and the non-party company was a small property with a total of KRW 800,000,000 in addition to the instant tax liability against the Plaintiff, as well as the loans owed to the small and medium enterprise bank.

(2) Meanwhile, the appraised value of the instant real estate at the time of March 21, 2005 is KRW 1,002,814,800.

2. Determination

(a) The existence and scope of preserved claims;

(1) Pursuant to Article 21(1) and (2) of the Framework Act on National Taxes, when income tax, corporate tax, and value-added tax are paid at the end of the taxable period, when income tax, corporate tax, or corporate tax withheld at source is paid at the end of the taxable period (On the other hand, according to Article 192 of the Enforcement Decree of the Income Tax Act, where the disposition of income by the tax authority and the notice of change in the amount of income is given, a corporation without source of withholding tax shall be deemed to have paid the income on the date the notice of change in the amount of income is received and thus the liability to pay the income tax withheld at the time is established), and in

According to the above facts, all national taxes other than Nos. 9 through 12 among the national taxes listed in the list of delinquent national taxes in attached Form are established before January 10, 2005, which is the date on which the plaintiff's fraudulent act was established. Thus, it constitutes the creditor's right of revocation under Article 30 of the National Tax Collection Act and Article 406 of the Civil Act.

(2) Meanwhile, in principle, a claim that can be protected by the creditor's right of revocation is established before the act was performed. However, there is high probability that at the time of the sales contract of this case, there has already been legal relations that can be the basis of the establishment of the claim, and that the claim should be established in the near future. In the near future, the possibility of realizing the claim in the near future, the claim can also be the preserved claim of the creditor's right of revocation (see, e.g., Supreme Court Decision 2002Da42957, Nov. 8, 2002). According to the above facts, each national tax claim No. 9 or No. 12 of the national tax in the attached list of national tax delinquency in arrears, which is established after January 10, 2005, which is the date of the establishment of the creditor's fraudulent act. However, since the legal relations which already became the basis of the contract of this case had already occurred, it is highly probable that the lawsuit was established based on the near future legal relations.

(3) In addition, the amount of claims covered by the preservation claim includes the interest or damages for delay incurred from the time of the conclusion of fact-finding proceedings after the fraudulent act, and such legal doctrine also applies to the additional dues and increased additional dues of national taxes. Accordingly, in the lawsuit seeking revocation of the fraudulent act in the instant case, the total amount of the instant claims shall be recognized as the amount of the preserved claim.

B. Establishment of fraudulent act

According to the facts acknowledged above, the non-party company entered into the instant sales contract that sells the instant real estate, which is the only property in excess of the debt, to the defendant. Thus, the instant sales contract becomes a fraudulent act against the plaintiff, barring any special circumstances, and in this case, the intention of the non-party company's death

C. Defendant’s bona fide defense

(1) The Defendant purchased the instant real estate through a normal sales contract, and the Defendant did not know at all at the time of the conclusion of the instant sales contract that the Nonparty was a bona fide beneficiary.

(2) 살피건대, 소외 회사의 사해의사가 추정되는 이상 사해행위의 수익자인 피고의 악의도 추정되는바, 을 제1호증, 을 제3호증의 1, 2, 을 제4호증의 1, 2, 을 제5호증의 1 내지 3, 을 제6호증의 1, 2, 을 제7호증의 1 내지 8의 각 기재와 1심증인 위길주의 증언(뒤에서 믿지 않는 부분 제외)에 의하면, 피고는 2005. 1. 19. 소외 회사와 사이에 소외 회사 소유의 이 사건 부동산을 825,000,000원에 매수하는 내용의 이 사건 매매계약을 체결하면서 매매대금 중 8000,000,000원은 이 사건 부동산에 설정된 중소기업은행 평촌지점 명의의 근저당권의 피담보채무를 인수하는 것으로 갈음하고, 나머지 25,000,000원은 2005. 1. 20. 소외 회사의 예금계좌에 입금하기로 약정한 사실, 이에 따라 피고는 2005. 1. 20. 이 사건 부동산에 관한 소유권이전등기를 이전받은 후 중소기업은행 평촌지점에 2005. 3. 15. 93,386,192원을, 2005. 4. 29. 707,000,000원을 변제하고 2005. 4. 29. 위 근저당권을 말소한 사실(피고는 2005. 4. 29. 이 사건 부동산에 관하여 근저당권자를 중소기업은행 평촌지점, 채무자를 피고, 채권최고액을 720,000,000원으로 한 근저당권을 다시 설정하였다), 피고가 대표이사로 있는 ○○○ 주식회사는 2005. 5. 25. 이사건 부동산 소재지 등기소인 수원지방법원 ○○등기소에서 지점설치 등기를 한 사실, 피고는 2005. 3. 2. 이 사건 부동산을 사업장 소재지로 하여 부동산 임대업을 위한 사업자등록까지 마친 사실 등은 인정되나, 한편 ① 이사건 매매계약 무렵인 2005. 3. 21. 기준으로 이 사건 부동산의 시가는 금 1,216,602,060원으로 감정평가 되었는바, 이 사건 매매대금 825,000,000원은 당시 시가보다 상당히 저렴하였던 점, ② 피고는 소외 회사의 대표이사인 임○○의 고교 동창으로서 이 사건 매매계약 체결 당시 근저당권자인 중소기업은행 ○○지점에 800,000,000원 상당의 대출채무가 있다는 사실을 알고 있었고, 소외 회사의 세금계산서에 문제가 있어 세무조사중이라는 사실도 임○○ 으로부터 들어 알고 있었다고 보이는 점(갑 제7호증의 기재와 제1심 증인 위○○의 일부 증언에 의하여 인정되는 사실에 의함), ③ 이 사건 매매계약상 소유권이전등기는 피고가 잔금 25,000,000원을 소외 회사의 예금계좌에 입금함과 동시에 마쳐주기로 약정되어 있었으나, 실제 이 사건 부동산에 관한 소유권이전등기는 2005. 1. 21. 매매잔대금 25,000,000원을 지급받기도 전인 2005. 1. 20. 미리 마쳐진 점(을 제2호증의 기재에 의하여 인정되는 사실), ④ 이 사건 부동산이 소재한 지역은 제조업 공장이 밀집되어 있는 공단 지역으로서, 건설업에 종사하고 있는 피고가 공단 지역에 위치한 이 사건 부동산을 매입한 경위와 관련하여 피고는 자신이 운영하고 있는 건설업체인 ○○○ 주식회사의 주 거래처인 설계 회사들이 안양시 인근에 많이 분포하고 있고, 경기도 지방자치단체를 거래대상으로 사업구상을 하고 있었기 때문이라고 주장하고 있으나, ○○○ 주식회사의 2003~2005년도 매입처 1,300개 중 안양 소재 매입처는 33개 업체, 매출처 92개 중 안양 소재 매출처는 5개에 불과하고 그 중 안양 소재 설계 관련 거래처는 2곳 뿐이며, 이 사건 부동산에 설치된 ○○○ 주식회사의 지점은 2005. 5. 25.경 개업하고 2006. 6. 21.경 폐업하였으나 그 기간 동안 매출 및 매입실적이 전혀 없었고, 이 사건 매매계약 후 1년 6개월여 만인 2006. 7. 31. 이 사건 부동산을 다시 주식회사 ○○○에 전매하였던 점(갑 제14호증, 을 제3호증의 1의 각 기재, 제1심 증인 위○○의 일부 증언에 의하여 인정되는 사실) 등 어려 사정들에 비추어 보면, 앞서 본 사실들만으로는 피고의 악의 추정을 번복하기에 부족하고, 제1심 증인 위○○의 일부 증언은 이를 믿지 않으며, 달리 피고가 선의의 수익자임을 인정할 증거가 없으므로, 피고의 위 항변은 이유 없다.

(d) Revocation of fraudulent act and reinstatement;

(1) Furthermore, as to the method and scope of revocation of a fraudulent act, in principle, the sales contract shall be revoked and the subsequent cancellation of the registration of transfer of ownership, etc. shall be ordered. However, in the event that the fraudulent act was conducted in relation to any real estate which was established and the subsequent repayment, etc. was cancelled, order the restoration of the real estate itself would be restored to the portion which was not previously owned by the general creditors, and would result in a violation of fairness and fairness. In such a case, order the above sales contract may be cancelled and the compensation shall be ordered only within the extent of the balance remaining after deducting the secured claim of the right to collateral from the value of the real estate, and the amount of compensation shall be calculated by deducting the secured claim of the right to collateral cancelled from the value of the real estate at the time of the closure of fact-finding proceedings, which is the time of revocation of the fraudulent act (see, e.g., Supreme Court Decision 98Da41490, Sept. 7, 199).

(2) However, at the time of the conclusion of the instant sales contract, the instant real estate had already been set up two cases with the maximum debt amount of KRW 800,000,000 in total under the name of the Industrial Bank of Korea ○○○○○○ branch of the said Bank. Since the instant sales contract was concluded, the said mortgage was fully revoked due to repayment after the conclusion of the instant sales contract, the scope of revocation of the instant sales contract and the order for compensation for value, the amount of each of the secured debt should be deducted from

(3) Therefore, the sales contract of this case is within the scope of the Plaintiff’s taxation claim against the non-party company, and the fact that the appraisal value of the real estate of this case as of March 21, 2005 was KRW 1,002,814,80 (as of March 21, 2005, the appraisal value of the real estate of this case as of March 21, 2005 was 1,002,814,800. Since there is no evidence to deem that the market value of the real estate of this case particularly increased or decreased after the point of time of the appraisal as of the above appraisal, it is reasonable to view the above appraisal value as the market value at the point of the conclusion of the argument of this case as of the real estate of this case. The above appraisal value is 800,386,192 won as of the time of cancellation of each of the above mortgages (the defendant paid a total of KRW 800,800,0000, the maximum debt amount of each of this case is 80000,80000 won).

In order to obtain a loan of this case from a bank as collateral, the above appraised value was assessed as a relatively higher amount than the market price at the time of the purchase. In addition, since the real estate in this case was considerably deteriorated at the time of purchase, the above appraised value includes the above appraised value equivalent to the above repair cost. Thus, it is unreasonable to determine the scope of revocation of a fraudulent act based on the above appraised value. However, there is no evidence to prove that the above appraised value was evaluated as a higher amount than the market price at the time of the appraisal standard, and all Eul Eul evidence Nos. 8 and 17 submitted by the defendant to prove that the above appraised value was paid the repair cost. Since the above appraised value was made after March 21, 2005, the above appraised value was made after each statement was made after March 21, 2005, and there is no other evidence to acknowledge that the above appraised value included the value equivalent to the repair cost in the above appraised value. Therefore, the above assertion by the defendant is without merit.

In addition, the defendant asserts that the amount of KRW 25,00,000 paid by the defendant to the non-party company should be deducted from the scope of fraudulent act because it constitutes the general property of the non-party company. However, the above amount cannot be deemed as the liability property provided to the joint security of general creditors. Thus, the defendant's assertion is without merit.

3. Conclusion

Therefore, the sales contract of January 10, 200, which was concluded between the defendant and the non-party company as to the real estate of this case, shall be revoked within the limit of 202,814,800 won, and the defendant is obligated to pay to the plaintiff 202,814,800 won and damages for delay calculated at the rate of 5% per annum from the day after the day when the judgment of this case became final and conclusive to the day when full payment is complete. Thus, the plaintiff's claim of this case of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as they are justified, and the judgment of the court of first instance, as such, is just, and the defendant'