Whether the act of offering real estate to a specific creditor as security for the financial loss is a fraudulent act

Considering that continuing the business by financing funds is the best way to have the ability to repay debts, and if it is inevitable to provide certain creditors with real estate as collateral and obtain additional loans from them, the act of creation of security interest of the debtor does not constitute a fraudulent act unless there are special circumstances.

Article 30 of the National Tax Collection Act

1. The purchase and sale reservation entered into on July 2, 2007 between the Defendant and the ○○○○○○○○○○○○○○○○ shall be revoked.

2. The defendant will implement the procedure for the cancellation of the provisional registration of the right to claim transfer of ownership, which was completed on July 3, 2007 by the receipt of No. 46383, the Seoul East Eastern District Court's indictment on each of the real estate mentioned in paragraph (1) to the Gamsan.

3. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Determination on the cause of the claim

(a) Facts of recognition;

The following facts may be acknowledged as either in dispute between the parties, or in Gap evidence 1 through 7, and Eul evidence 1 (including the serial number) by integrating the purpose of all pleadings:

(1) From April 23, 2001 to December 31, 2007, in the name of ○○ Construction Institute from the buildings listed in the attached Table 2 (hereinafter referred to as “the instant wedding building”) to December 31, 2007, Nonparty 2, who operated the wedding hall, is currently in arrears with value-added tax of KRW 582,409,512, global income tax of KRW 1,545,209,61, total income tax of KRW 2,127,619,619,173 among the value-added tax and the total income tax generated during the taxable period from January 1, 2004 to December 31, 206.

Table Omission of the Table

(2) From Jun. 21, 2007 to Sep. 14, 2007, the Plaintiff conducted a tax investigation with respect to gambling, and on July 2, 2007, on which Park Jong-seok was under a tax investigation, the Plaintiff entered into a pre-contract with the Defendant to sell and purchase each real estate of this case (hereinafter referred to as the "pre-contract to sell and purchase this case"), and on July 3, 2007, the following day, the Defendant (the Defendant was determined on May 10, 2005, 100 million won, 50 million won, 1% per month of interest rate, 50 million won in total, and 31 December 206, 2006) with respect to each real estate listed in the [Attachment 1] list owned by Park Jong-seok-m in order to provide it as security for the above loan credit (hereinafter referred to as the "real estate of this case").

(3) At the time of the promise to sell and purchase the instant real estate, the amount of KRW 619,893,540,000, market price of which is approximately KRW 89,540,000,000,000 for each of the instant real estate and the instant wedding building (affirmative property totaling KRW 1,509,893,540,000), and as income property, KRW 2,127,619,173 for the Plaintiff, KRW 2,127,619, and KRW 50,000 for the Defendant, KRW 30,00,000 for the Defendant’s National Bank of Korea (hereinafter “National Bank of Korea”), and KRW 841,00 for each of the instant real estate, KRW 39,00,000 for the obligor Parksung, the holder of the right to establish a mortgage, and KRW 39,540,000,00 for the instant wedding building).

B. Determination

(1) Where the obligor’s property is insufficient to fully repay the obligor’s obligation, if the obligor provided the obligor’s property as payment in kind or as a collateral to a certain obligee, barring any special circumstance, it would directly prejudice the interests of other obligees, and thus, constitutes a fraudulent act in relation to other obligees. The same applies to cases where the obligor’s property provided as payment in kind or as a collateral is not the obligor’s property, or its value falls short of the obligor’s claim amount (see, e.g., Supreme Court Decision 2007Da182

(2) In the instant case, the Defendant’s act of entering into a pre-sale agreement with the Defendant for the purpose of providing each of the instant real estate to the Defendant, one of his creditors, with a view to making the instant real estate secured in excess of the obligation, and completing provisional registration accordingly constitutes a fraudulent act that deepens the shortage of common security of the general creditors including the Plaintiff, and the Defendant’s bad faith, which is the beneficiary, is presumed.

(3) Therefore, the instant pre-sale agreement between Park ○ and the Defendant constitutes a fraudulent act, and thus, the Defendant is obligated to implement the procedure for cancellation registration of the provisional registration of this case as restitution to its original state.

2. Judgment on the defendant's assertion

(a) Furnishing security for rehabilitation;

(1) The argument

Park Jong-seok requested the Defendant to provide another financing because it is difficult for the Defendant to continue to operate a wedding business after the lapse of December 31, 2006, which is due date of the above 500 million won loan obligations against the Defendant. The Defendant received provisional registration of this case on the premise of additional financing, considering that it is difficult for the Defendant to provide additional financing without any collateral. As such, as long as Park Jong-seok, in the situation where it is difficult to continue to implement the business due to the financial shortage, considers the best way to have the ability to repay the obligation, and it is inevitable to provide the Defendant with each of the instant real estate as collateral for financing, the promise to sell and purchase this case between Park Jong-seok and the Defendant does not constitute a fraudulent act.

(2) Determination

(A) An obligor’s act of offering real estate owned by him/her to a person among creditors is deemed as a fraudulent act in relation to other creditors, barring special circumstances. However, barring special circumstances, barring special circumstances, it is the best way for an obligor to continue his/her business by financing funds in a situation in which it is difficult to continue its business due to the financial crisis to obtain financing, and if it is inevitable to provide certain creditors with real estate as collateral and obtain new funds additionally from them, an obligor’s act of creation of security interest does not constitute a fraudulent act. However, barring special circumstances, if the obligor’s existing obligation with no relation to the continuation of business is included in the scope of the secured obligation, it is likely that only that portion constitutes a fraudulent act (see Supreme Court Decision 200Da25842, Mar. 29, 2002).

(B) In the instant case, insofar as there is no evidence to acknowledge that the Health Team and Gamban received additional loans from the Defendant while making the provisional registration of this case, it merely made the provisional registration of this case to secure the Defendant’s existing loan obligation amounting to 500 million won, and it cannot be deemed that the Defendant made the provisional registration of this case for the purpose of continuously securing the obligation to repay his food service business. Thus, the Defendant’s assertion is without merit.

(b) A bona fide beneficiary;

(1) The argument

The Defendant is merely a bona fide beneficiary who did not know that the instant provisional registration has been made as a security for 500 million won for Gam, and that Gamn was in arrears with taxes on the Plaintiff since Dom had been continuously paid interest on the said loan obligation from Gamn. Accordingly, the Defendant is a bona fide beneficiary who did not know that the instant promise to sell and purchase was a fraudulent act.

(2) Determination

As long as the act of filing a provisional registration with the Defendant, a part of the obligees in excess of the debt itself, constitutes a fraudulent act, the above argument by the Defendant is insufficient to reverse the presumption of bad faith against the Defendant solely on the ground that the Defendant, at the time of the promise to sell and purchase this case, had a loan to Park ○ at the time of the promise to sell and purchase this case, or was paid interest thereon continuously, uf784 uf85 uf8cd uf8d, and there is no evidence to prove otherwise that the Defendant had acted in good faith at the time of the promise

C. Violation of the good faith principle

(1) The argument

If the plaintiff promptly took measures such as seizure, etc., the defendant did not receive provisional registration of this case by gathering the fact of tax delinquency in Park Jong-man, and thus the plaintiff's claim of this case is contrary to the good faith principle.

(2) Determination

In full view of the purport of the argument in Gap evidence No. 2 and the purport of the whole argument, the plaintiff found the fact of delinquency in the payment of value-added tax, etc. while conducting a tax investigation on Park Jong-seok from June 21, 2007, and found the seizure of each of the real estate of this case on July 3, 2007 and April 2007. Accordingly, the plaintiff cannot be deemed to have neglected the seizure of the property owned by Park Jong-seok. Thus, the above argument by the defendant is without merit.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.