Suwon District Court Decision 2007Gadan26140 ( October 24, 2008)

Requirements to regard the contributor, etc. other than the deposit title holder as a party to the deposit contract.

In order to regard the contributor who is not the deposit title holder as a party to the deposit contract, it is necessary to strictly recognize the probative value of the deposit contract prepared through the real name verification procedure in accordance with the Act on Real Name Financial Transactions to the extent sufficient to reverse the probative value of the deposit contract, etc. by specific and objective evidence.

The contents of the decision shall be the same as attached.

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The contract of donation of KRW 375,200,000,000 entered into on June 7, 2004 between the defendant and the right holder shall be revoked within the limit of KRW 59,717,140, and the defendant shall pay to the plaintiff 59,717,140 with 5% interest per annum from the day after the day when the judgment of this case becomes final to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Determination and basic facts as to the defense of this safety

The court's explanation on this part is identical to the corresponding part of the reasoning of the judgment of the first instance except for the second instance court's 375,200,000 won per 422,520,00 won per 4,000 won per 15,000 won per 4,000 won per 15,000 won per 4,000,000 won per 4,000 won per 16,000 won per 4,000 won per 4,000 won per 16,000 won

2. Judgment on the merits

A. Formation of preserved claims

According to the above facts of recognition, ○○○ is obligated to pay 59,717,140 won in arrears to the Plaintiff.

In principle, a claim that can be protected by the obligee’s right of revocation shall arise before an act that can be seen as a fraudulent act is performed. However, at the time of a fraudulent act, there has already been legal relations that serve as the basis for the establishment of a claim, and there is high probability to the effect that a claim is to be established in the near future by such legal relations, and in cases where a claim has been created in the near future with such probability, such claim may also become a preserved claim by the obligee’s right of revocation (see Supreme Court Decision 2000Da37821, Mar. 23,

According to the above facts, the transfer income tax of this case Nos. 1 and 2 among the transfer income tax claims of this case against the plaintiff's right ○○○, respectively, was notified to the non-party Kim Jong-si on July 8, 2005. However, at the time of the donation contract of this case, the plaintiff had already formed a legal relationship that serves as the basis for establishing a tax claim by selling the real estate No. 1 to the non-party Kim Jong-si, and selling the real estate No. 2 to the plaintiff, and thereafter, each of the transfer income tax claims of this case is subject to the creditor's right of revocation, in light of the fact that each of the transfer income tax claims of this case has actually occurred.

In addition, when a creditor exercises his/her right of revocation, in principle, he/she cannot exercise his/her right of revocation in excess of his/her claim amount, and at this time, the creditor's claim amount includes interest or damages for delay accrued from the fraudulent act to the closure of the trial court proceedings (see Supreme Court Decision 2000Da66416, Sept. 4, 2001). Meanwhile, additional dues and increased additional dues provided for in Articles 21 and 22 of the National Tax Collection Act are a kind of incidental tax, which is added to the interest for arrears, if national taxes are not paid by the due date, and if national taxes are not paid by the due date without the due date of payment by the due date without the due date of determination by the person who has the right of taxation, it naturally occurs pursuant to Article 21 Article 22 of the same Act and its amount is finalized (see Supreme Court Decision 2

Therefore, as long as each of the instant transfer income tax claims is recognized as preserved claims of obligee’s right of revocation, the amount of the relevant taxation claims shall include additional charges and increased additional charges incurred from the fraudulent act to the closure of pleadings at fact-finding proceedings. Accordingly, additional charges imposed on each of the instant transfer income tax claims until May 11, 2007, as claimed by the Plaintiff, also constitute preserved claims of obligee’

B. Whether the fraudulent act was established

In full view of the purport of each statement in Gap's evidence Nos. 5 through 7, the fact that ○○○ at the time of the instant donation contract did not have any specific active property other than 126m2,00,000,000,000 ○○○○, ○○○, ○,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000

Therefore, the act of entering into the instant donation contract with the Defendant constitutes a fraudulent act, barring any special circumstance, as an act of reducing the joint collateral of the creditors including the Plaintiff, and on the other hand, the Defendant, a beneficiary, is presumed to have been maliciously presumed. Ultimately, the Plaintiff may cancel the instant donation contract against the Defendant to preserve each of the instant transfer income tax claims against the right holder, etc. against the Defendant, and seek restitution therefor.

C. Judgment on the defendant's assertion

1) The assertion

The actual deposit of the agricultural bank account of this case is not the defendant, but the right holder is the defendant, and the right holder used the money deposited in the agricultural bank account of this case for his own business, and the defendant did not use the money.

Even if the Defendant is the actual deposit owner of the agricultural bank account of this case, ○○○○○○○○○○○○ by depositing KRW 422,527 million in the account of ○○○○○○○○○○○○, and thereafter deposited KRW 375,200,000 out of KRW 4225,200,000 deposited from the account of ○○○○○○○○○○○○○○, into the instant agricultural bank account under the name of the Defendant. This is the fact that ○○○○○ was a donation to the Defendant.

Therefore, since the defendant did not receive a donation of the above money from the right ○, the plaintiff's claim of this case based on this premise is unreasonable.

2) Determination

In cases where a deposit contract is concluded through a real name verification procedure under the Act on Real Name Financial Transactions and Confidentiality (hereinafter referred to as the "Real Name Financial Transactions Act") and the fact of the contract is clearly stated in the real name verification statement, etc., it would be reasonable to interpret that the deposit title holder, the actor, and the intent of the financial institution acting for him/her in the deposit contract is to regard the deposit title holder as the party to the deposit contract. On the other hand, in order to regard the contributor, etc. who is not the deposit title holder as the party to the deposit contract as the party to the deposit contract, it should be limited to extremely exceptional cases where there is a clear agreement with the fund contributor, etc. to exclude the right to claim the deposit of the deposit title holder through a document-based verification procedure between the financial institution and the fund contributor, etc., and to allocate the right to claim the deposit by concluding the deposit contract with the fund contributor, etc., and such agreement should be strictly recognized by old and objective evidence to the extent sufficient to reverse the probative value of consent to the deposit contract (see Supreme Court Decision 2009Da528484, Mar. 28, 20009).

In full view of the purport of the argument in Gap evidence 4-3, the defendant was found to have opened the agricultural bank account in his own name on October 17, 2003 and engaged in deposit transactions, each of the statements in Eul-1 and 13, witness rights of the first instance court, testimony of the first instance court, ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on the part of the defendant’s ○○○○○○○○○○○○○ branch

On the other hand, in full view of the purport of the argument in Eul evidence No. 14, it is recognized that ○○○ was a 6th degree of assistance in the area adjacent to ○○○○○, and furthermore, the defendant was owned by the non-party 2, which is the non-party 2, the title holder of the real estate of this case, and therefore, ○○○○ was deposited the compensation for the real estate No. 2 in the fraternity of ○○○○○○, the general secretary of the right holder of the above paper-based council with the intention of delivering it to the above paper-based council, and the majority of the members argued that ○○○ was aware that ○○ was using the compensation for the right (refer to the defendant's preparatory brief dated April 14, 2009). Thus, since ○○ deposited KRW 3752 million out of the money returned from ○○○, the defendant's assertion that the above money was donated to the defendant is without merit.

3. Conclusion

Therefore, the gift contract of this case concluded between the defendant and the ○○○ shall be revoked at the limit of KRW 59,717,140, and the defendant shall be obligated to pay to the plaintiff 59,717,140 and delay damages at the rate of KRW 5% per annum from the day following the day when the judgment of this case becomes final and conclusive to the day of complete payment.

Therefore, the plaintiff's claim of this case is justified, and the judgment of the first instance is just, and the defendant's appeal is dismissed as it is without merit.