The act of changing the sole property into money which is easily consumed is a fraudulent act, and the beneficiary's bad faith is presumed also.

The act of selling a delinquent taxpayer's only property to the defendant constitutes a fraudulent act even in payment of nursing expenses, and the beneficiary's bad faith is presumed also presumed.

Article 30 of the National Tax Collection Act, Article 406 of the Civil Act

2013 Ghana 237146 Revocation of Fraudulent Act

Korea

CivilAA

April 8, 2014

May 27, 2014

1. As to real estate listed in the separate sheet:

A. The sales contract concluded on May 4, 2009 between the defendant and thisA shall be revoked.

B. The Defendant shall comply with the procedures for registration of cancellation of ownership transfer registration that was completed with BB District Court BBBB registry office on June 4, 2009 by the 280CC.

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

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

A. On March 6, 2006, thisA sold EEF GG H H 164-1 1,321 m21 m2 to MaD on March 6, 2006, and completed the registration of ownership transfer on March 8, 2006.

B. On July 9, 2009, the Plaintiff, on July 31, 2009, determined and notified the payment deadline for the transfer of the above land to thisA, and determined and notified KRW 143,04,189 for the transfer income tax for the year 2006. The amount of the said transfer income tax is KRW 234,812,850, including the corresponding additional dues.

C. On May 4, 2009, thisA entered into a sales contract (hereinafter referred to as "the instant sales contract") with the Defendant on the real estate listed in the separate sheet (hereinafter referred to as "the instant real estate"), which is the only property of the Defendant, and completed the registration of transfer of ownership with BB registry office as BB registry office as BB registry office as 280CC on June 4, 2009.

[Ground of recognition] Facts without dispute, entry of Gap evidence Nos. 1 and 4 and 8, purport of the whole pleadings

2. Determination on the defense prior to the merits

The Defendant, at least before July 31, 2009, knew of the fact that the instant sales contract was concluded by the Plaintiff prior to July 31, 2009, a capital gains tax payment deadline for this AA. Since the Plaintiff’s instant lawsuit was filed on December 11, 2013 after one year from the Plaintiff, the Plaintiff’s lawsuit of this case was unlawful by the lapse of the exclusion period.

A lawsuit of revocation by a creditor shall be brought 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 with the knowledge that he/she had harmed the creditor. It is insufficient for the debtor simply aware of the fact that he/she conducted a disposal of the property, and further, it is required to know the existence of a specific fraudulent act and to know the fact that he/she had an intention to deception against the debtor (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 conclusion of the contract of this case and that the contract of this case was a fraudulent act prejudicial to the plaintiff, and there is no other evidence to acknowledge it.

3. Judgment on the merits

(a)the existence of preserved claims;

Although it is required that a claim that can be protected by the obligee’s right of revocation has arisen prior to the commission of an act that can be viewed as a fraudulent act in principle, the claim may also become a preserved claim of the obligee’s right of revocation in the near future where there exists a legal relationship that has already been based on which the claim was established at the time of the fraudulent act, and it is highly probable that the claim would have been established by the near future legal relationship.

On July 9, 2009, after the Plaintiff entered into the instant sales contract, it was highly probable that the transfer income tax was established on March 31, 2006, which is the last day of the month in which the real estate transfer date, which is the basis of the said transfer income tax, and the said transfer income tax was established in the near future. Accordingly, the Plaintiff actually generated the transfer income tax claim by determining and notifying the said transfer income tax to thisA due to the realization of its probability, and thus the said transfer income tax and the said claim are the preserved claim for revocation of fraudulent act.

(b) The establishment and intent of fraudulent act;

The debtor's act of selling real estate, which is one of his own exclusive property, and replacing it with money which is easily used for consumption, constitutes a fraudulent act against the creditor, barring special circumstances. Thus, the debtor's intent of prejudice is presumed and the burden of proving that the purchaser or transferee did not maliciously act is the beneficiary (see, e.g., Supreme Court Decision 2000Da41875, Apr. 24, 2001). In addition, in a case where the debtor's property is insufficient to fully repay his/her obligation, if the debtor provided his/her property to a certain creditor as payment in kind or as a security, then it would be prejudicial to the interests of other creditors and thus constitutes a fraudulent act in relation to other creditors (see, e.g., Supreme Court Decision 2008Da85161, Sept. 10, 2009). In this case, although this case's sale of the real estate in this case, which is the only property of the defendant, as the defendant's assertion, such sale constitutes a fraudulent relation with the defendant's intent to the beneficiary.

(c) Revocation of fraudulent act and reinstatement;

Therefore, the instant sales contract concluded between thisA and the Defendant regarding the instant real estate shall be revoked as a fraudulent act, and the Defendant shall be obliged to implement the procedure for registration of cancellation of ownership transfer registration completed with respect to the instant real estate by restoring the original state to its original state.

D. Determination on the Defendant’s bona fide assertion

As to this, the defendant asserts that the defendant is a bona fide beneficiary, since this case's sales contract was unaware of whether this case's capital gains tax should be paid at the time of the conclusion of this case's sales contract with this case's sales contract.

However, each circumstance acknowledged by the purport of Gap evidence Nos. 5, 9, 10 (including paper numbers), Eul evidence Nos. 2 and Eul evidence Nos. 5, i.e., from August 2000 to the time of the sales contract of this case, the defendant had been making the nursing of this case from July 9, 2008 to the time of the sales contract of this case, and thisA had been making the same resident registration as E.A. On February 21, 2011 at the Busan National University Hospital of Busan, there was a lot of memory after brain flasing around October 2004, and thereafter, it shows that there was no evidence that the defendant received the above real estate Nos. 360 of this case's transfer income tax without his guardian's assistance.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.