Whether the sole act of transferring property to someone who is insolvent is a fraudulent act

If the delinquent taxpayer has completed the registration of ownership transfer under his/her name, it constitutes a fraudulent act.

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

1. The defendant and the non-party Kim ○○

A. Sales contract concluded on October 30, 2005 with respect to real estate Nos. 1 and 2 in the separate sheet

B. The sales contract concluded on October 26, 2005 for real estate No. 3 listed in the separate sheet

Each cancellation shall be revoked.

2. The defendant against the non-party Kim ○○

A. The procedure for the cancellation of each registration of transfer of ownership completed on January 25, 2006 by the ○○ District Court ○○○ registry office ○○ with respect to real estate listed in the separate sheet Nos. 1 and 2;

B. The procedure for the registration of transfer of ownership to the real estate No. 3 listed in the separate sheet causing the restoration to the original state due to the revocation of fraudulent act

D. Each performance shall be made.

3. The costs of lawsuit shall be borne by the defendant.

The order is as follows (However, although the plaintiff sought the procedure for the registration of transfer of ownership under Section 2.B. as the reason for the restoration of the true title, it will be decided to seek restitution due to the cancellation of fraudulent act).

1. Basic facts

"The real estate listed in the separate sheet (hereinafter "the real estate of this case") was owned by Kim○-○. Among them, on October 30, 2005, the sale and purchase of real estate Nos. 1, 2, 1, 2, 1, 1583, 2, 2006, 2, 3, 005, 2, 003, 2, 2, 26, 2005, 00, 5117, 2006, 00, 000, 000, 000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000 won, was completed.

Evidence Nos. 3-1 through 3, Evidence No. 11-1, 2-2, and the purport of the whole pleadings

2. Whether the fraudulent act is constituted;

A. Formation of preserved claims

In full view of the overall purport of the pleadings in the statement No. 1-3 and No. 3-4 of the evidence No. 1-3 and the whole purport of the pleadings, Kim ○○ on April 28, 2005, sold 2520 square meters of the ○○○○, Busan, ○○○○, ○○○, and ○○○○, and ○○○, on April 29, 2005, the above buyers completed the registration of ownership transfer, and did not report the transfer income tax base within two months from the last day of the month to which the transfer date belongs as prescribed by the Income Tax Act. The Plaintiff’s head of ○○○ under the Plaintiff’s control determined the transfer income tax base at the standard market price on November 17, 2005 and notified it to Kim○○, which is the time limit for payment, and thus, the revocation of the said transfer income tax claim is not recognized to have been paid.

B. Whether a fraudulent act was committed

In full view of the purport of Gap evidence 2-1 and 2, around October 26, 2005 and October 30, 2005, which is the date of the sales contract for the real estate of this case, Kim○-○ had no specific property other than two cars equivalent to KRW 1,790,000 in the market value of the real estate of this case. As such, the sale of the real estate of this case in which Kim○-○, who is in insolvent, can be deemed to have caused a lack of joint collateral and thereby caused a lack of claims to harm other general creditors' interest to himself. Thus, the sales contract concluded between Kim○-○ and the defendant on October 26, 2005 regarding the real estate of this case and the sales contract concluded on October 1 and 2 of 2005 regarding the real estate of this case, which was concluded on October 30, 2005, which was presumed to have been detrimental to the obligees of the above defendant ○-○, the beneficiary of this case.

(c) Port of bona fide beneficiary;

The defendant borrowed 62 million won in total from the above 700,000 won to ○○○ on January 28, 1997, 1997, 10,000 won on October 24, 1997, and 5 million won on March 28, 2005, 200,00 won on May 9, 2005, 50,000 won on May 17, 2005, 300,00 won on June 8, 2005, 200,000 won on June 24, 2005, 200 won on June 5, 200, 300 won on the above 7 million won on the beneficiary’s loan to 1 million won on July 4, 2005, 205, 300,000 won on the above 3 million won on the beneficiary’s loan.

In full view of the overall purport of the arguments in the statement No. 3-2, No. 4-2, No. 4-2, No. 5-3 through No. 5, No. 6-2, and No. 7-2, each of the above statements in No. 3-5, No. 3-2, No. 5, No. 5-2, and No. 7-2, the defendant, as a result of his offering of loans to Kim Il-○, was unable to conclude the registration of ownership transfer as a result of the lack of evidence that the defendant would have incurred damages to ○○○○○'s property by introducing the above total sum of No. 215,000,000,000 won around Oct. 24, 1997, and KRW 10 million on March 28, 2005, and KRW 50,000,000,000 to the extent of the defendant's assertion, the defendant's assertion that the defendant would have suffered damages to ○○'s property.

D. Conclusion

Therefore, the sales contract concluded on October 30, 2005 and the sales contract concluded on October 26, 2005 with respect to the real estate Nos. 1 and 2 among the real estate in this case between the defendant and Kim○○ shall be revoked as a fraudulent act, respectively. The defendant is obligated to implement the registration procedure for cancellation of the above transfer of ownership on January 25, 2006 for the real estate Nos. 1 and 2 among the real estate in this case, and to implement the registration procedure for cancellation of the transfer of ownership on January 25, 2006 for the real estate in this case, which was completed on January 3, 202.

[Supreme Court Decision 2008Da153 (No. 14, 2008)]

1. The appeal is dismissed.

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

All of the records of this case and the judgment of the court below and the grounds of appeal were examined, but it is clear that the appellant's grounds of appeal fall under Article 4 of the Act on Special Cases Concerning the Procedure of Appeal and therefore, the appeal is dismissed pursuant to Article 5 of the above Act. It is so decided as per Disposition by

Busan District Court 2007Na9716 ( November 23, 2007)

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Place of business in which Gu office is placed;

A. A sales contract concluded on October 30, 2005 with respect to real estate Nos. 1 and 2 listed in the attached list of the judgment of the court of first instance between the defendant and the non-party Kim ○, and the sales contract concluded on October 26, 2005 with respect to real estate No. 3 listed in the attached list of the judgment of the court of first instance is revoked.

A. The defendant shall implement the procedure for the registration of cancellation of ownership transfer on January 25, 2006 with respect to the real estate Nos. 1 and 2 listed in the separate sheet of the judgment of the court of first instance to the non-party Kim ○○, ○○ District Court ○○○ registry ○○******) the procedure for the registration of cancellation of ownership transfer registration on the real estate No. 3 listed in the separate sheet of the judgment of the court of first instance due to the cancellation of fraudulent act

2. The place where the ship is placed in service;

The judgment of the first instance shall be revoked. All the plaintiff's claims against the defendant shall be dismissed.

The reasoning of the court's explanation on this case is as stated in the reasoning of the judgment of the court of first instance, and therefore, it is accepted pursuant to the main text of Article 420 of the Civil Procedure Act (the defendant's transfer of each of the real estate in this case under the title of the claim for payment in kind to Kim○, and the defendant did not transfer each of the real estate in this case in collusion with Kim○ and Kim○'s obligation to avoid the burden of tax claims against the plaintiff, so it cannot be recognized as the defendant's intention. Therefore, although the debtor and the beneficiary's intent or bad faith, which are the subjective requirement of the obligee's right of revocation, are argued to the purport that they are bona fide beneficiaries, although the debtor's intent or bad faith is reduced by the debtor's act of disposal in the debtor's property, which makes it difficult for other creditors to fully satisfy their claims due to the decrease in general creditors' joint security or lack in common security, it is not sufficient to acknowledge the defendant's intention or bad faith's liability as to the beneficiary in this case, unless there is any special reason to prove that the defendant's intent or bad faith.

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.