Suwon District Court 201Kadan88456

Whether the account transfer of cash by a delinquent taxpayer while over his/her obligation constitutes a fraudulent act as a donation

According to evidence, the act of remitting money to the defendant by account transfer does not constitute donation, but it is possible to revoke the fraudulent act by recognizing the title trust of deposit holders.

Article 5 of the National Tax Collection Act

2013Na17541 Revocation of Fraudulent Act

Korea

-00

Suwon District Court Decision 201Gadan88456 Decided April 10, 2013

June 26, 2014

August 14, 2014

1. Revocation of a judgment of the first instance;

A. The cancellation of each deposit owner title trust agreement with the Defendant on each remittance money listed in the separate sheet with respect to the amount stated in the separate sheet shall be revoked.

B. The defendant shall pay to the plaintiff 00,000,000 won with 5% interest per annum from the day following the day when this judgment is finalized to the day of complete payment.

2. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

Above all, between the defendant and Park 00 on March 17, 201, KRW 000,000 on March 17, 2011, and KRW 0,000,000 on March 18, 201

The agreement on each gift of KRW 00,000,000 on June 5, 201 and KRW 00,000 on June 13, 201 shall be revoked. The defendant shall pay to the plaintiff 00,000,000 with the interest 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.

Preliminary, as stated in the Disposition (the plaintiff added the conjunctive claim at the trial)

and the application for change of the cause of the claim was filed, but the subject matter of the lawsuit is insolvent in the revocation lawsuit.

Since the debtor's cancellation of the debtor's act of reducing property and the claim for restitution, the legal act of reducing property

in relation to the assessment of the gift or the title trust agreement of the depositor, otherwise asserted by such fraudulent act

The claim itself is merely a different argument on the means of attack and defense with which the right of revocation is justified.

Therefore, it cannot be viewed as different (see Supreme Court Decision 2004Da10985, 10992, March 25, 2005). Under the following, it shall be deemed as one claim.

2. Purport of appeal

The judgment of the first instance is revoked. The same judgment as the primary purport of the claim is sought.

1. Basic facts

A. Park 00 on March 20, 1998, transferred a building and land located in 00,000 Dong 00-0,000 on March 20, 1998, but did not report the transfer income tax, but did not report the transfer income tax, interest on corporate bonds from March 20, 196 to 200.

B. On January 2, 2001, the director of the tax office under the Plaintiff-affiliated tax imposed capital gains tax on January 2, 2001; and imposed global income tax and value-added tax on November 30, 201; however, he/she notified the imposition of global income tax and value-added tax, respectively.

00 As of November 23, 2013, the date of filing the instant lawsuit, which was November 23, 2013 due to the failure to pay the amount in arrears.

It reaches KRW 000,000,000, including penalty tax (the details are referred to as the amount of the attached preservation claim).

(c) Park 00 is from his own new bank account (00-00-00) on March 17, 2011 0,000,000

Won, 0,000,000 won for March 18, 201, 00,0000 for gold, June 5, 2011, and 00,000,000 won for gold, June 13, 2011,

00,000,000 won

was remitted to the Corporation.

D. Park 00 paid money from the above account after depositing money into each of the defendant's respective accounts as above.

such use was made.

[Reasons for Recognition] The fact that there is no dispute, Gap evidence 1 through 7 (including each branch number, if any; hereinafter the same shall apply), Eul evidence 1 through 4, the purport of the whole pleadings, and the purport of the whole pleadings. The account in the name of the defendant as of the deposit date of the serial number

2. Judgment on the parties’ assertion

A. Judgment on the plaintiff's primary argument

1) The Plaintiff: (a) 00,000,000 in total with the account under the name of the Defendant, the wife, in excess of 00,000

(1) The defendant made a donation of money to the defendant and constitutes a fraudulent act.

The contract shall be revoked, and the defendant asserts that the above KRW 00,000,000 and the delay damages shall be paid to the plaintiff by restitution.

2) To seek revocation by asserting that the debtor’s legal act is a fraudulent act, etc., and that the debtor’s revocation is sought.

The obligee is not only the existence of the preserved claim and the obligor’s juristic act, but also the obligor’s juristic act.

The establishment of a fraudulent act, such as the debtor's intent to respect the insolvency, etc.

The facts of the requirements must be specifically asserted and proved. If a creditor seeking the revocation of a fraudulent act claims that a gift is made to a beneficiary, this constitutes a denial of creditor's assertion, and thus, it should be proved that the said monetary payment constitutes a gift in order to recognize it as a fraudulent act. The burden of proof is on the part of the creditor's assertion of a fraudulent act.

With respect to the instant case, the foregoing macroscopic evidence shall be considered as a whole to the purport of the entire pleadings.

(1) Park 00 has deposited money to the account under one’s name and balance in the following circumstances:

In the event that the amount exceeds KRW 1,00,000,000, the money was transferred to the account under the name of the defendant on or following the date of withdrawal or remittance, which appears to have been aimed at tracking tax authorities or avoiding seizures by creditors, and ② The amount of tax unpaid for a long period of time is normally financial transaction.

financial transactions necessary for business are deemed to have been conducted in the name of the defendant, and

00,000 won Nos. 0,000,000 won, which was remitted by the Defendant to the Defendant’s 00 bank account on March 17, 2011 and on May 16, 2011, was remitted from the Defendant’s 00 bank account, but 0,000,000 won was remitted from the Defendant’s 1) Kim00, but the remainder was remitted to the 000,000 won on April 16, 201, and the remainder was remitted from the Defendant’s 00 bank account on May 16, 2011.

No evidence exists to deem that the Defendant used all of the spent costs of KRW 0,00,000 and KRW 0,000,000 on June 1, 2011, which was spent by the Defendant, and rather, there is room to regard that KRW 0,000,000 out of the withdrawn costs of KRW 1,000,000 on June 1, 201 was used in paying auction proceeds to the court; and ④ 00 agricultural cooperatives under the name of the Defendant on June 5, 201 and June 13, 201.

A total of KRW 00,000,000 remitted to an account (No. 2) was remitted from 00 to 00,000, but the sum of KRW 00,000,000 was consumed by the Defendant’s personal relation, including the fact that 00,000,000,000,000, which was remitted to the Defendant’s 00 bank account for a period of October 15, 201, including the said money was deposited to the Defendant’s account, but the said money was withdrawn from 00,000,000 to 00,000,000, which was remitted by 00,000 won, until December 15, 2011, and the Defendant’s personal relation was remitted.

The argument of this case, such as origin, the period of storage and use of the defendant, etc.

In full view of all circumstances, each of the above amounts remitted to the defendant shall be 00 business.

The business of Park 00 again after keeping the money received from the other party to the transaction in the account under the name of the defendant

It appears that such money was withdrawn and used as required for such purpose, and that it was donated to the Defendant by Park 00

There is no other evidence to acknowledge it. The Plaintiff’s status on a different premise is the same.

We cannot accept the assertion.

B. Judgment on the plaintiff's conjunctive assertion

1) If the Plaintiff cannot evaluate each of the above remittances as a gift, it shall be deemed that Park 00 entered into a deposit account title trust agreement with the Defendant as to the money transferred under the name of the Defendant, and thus, it shall be revoked by fraudulent act, and the Defendant shall be obliged to pay the amount equivalent to the above remittances and the damages for delay thereof to the Plaintiff due to restitution to its original state.

In light of the above facts, it is reasonable to view that there was an agreement between the plaintiff and the defendant that the plaintiff should keep and use the money that the plaintiff remitted to the account in the name of the defendant in the name of the defendant for the purpose of lending the money to each account in the name of the defendant to the financial transaction necessary for the business. In such a case, in external relationship with the bank or the third party, the defendant should have the right to claim the return of the deposit, and the debtor's property at 00, which is the debtor's general creditor, was reduced accordingly, it constitutes a fraudulent act in relation to the general creditor of 200, which is subject to the revocation of the fraudulent act.

3) Evidence No. 4, evidence No. 6-1 to 4, and appraisal by the first instance court appraiser No. 00

In full view of the purport of the entire argument, at the time of the trust in the name of the depositor in each of the above accounts

The market price of each real estate owned by 00,000 won is merely 00,000 won, whereas the small property is a small property.

Amounting to KRW 000,000,000 for debts, etc. established on each of the above real estates and to KRW 000,000 for national taxes in arrears;

Since it is recognized that Park 00 remitted money to each of the above accounts under the name of the defendant to exceed his liability.

Since the trust in the name of the deposit owner for each account will eventually be omitted, the plaintiff's trust in each account.

It constitutes a fraudulent act detrimental to the general creditor, and the defendant's bad faith as a beneficiary is a beneficiary.

Therefore, each of the above deposit holders’ trust agreements must be revoked by fraudulent act.

4) Judgment on the defendant's assertion

A) Claim for the completion of extinctive prescription

Since the Defendant asserts that the Plaintiff’s taxation claim against Park 00, which is the preserved claim, has already expired by prescription, the Plaintiff’s above claim for transfer income tax, global income tax, and value-added tax, which are the Plaintiff’s taxation claim against Park 00, and the extinctive prescription period from the day following the statutory due date for payment of tax is determined by all the tax return (see Article 12-4 of the Enforcement Decree of the Framework Act on National Taxes). As such, the highest due date for payment of the Plaintiff’s taxation claim (see attached preservation claim amount) is on January 2, 200, and five years have elapsed since the lapse of prescription period, it is recognized that the Plaintiff’s claim for the above taxation claim was 00,000 0,0000 00,000 2.3,000 2,000 m2,000 m2,000 m2,000 m27,000 m2,007.

B) In other words, the Defendant asserts to the effect that all of the money Park 00 deposited into the account under the name of the Defendant was returned to Park 00, such as that it was used for the payment to his creditor by withdrawal of Park 00 and was used for the payment to his creditor, or that there was no profit for the Defendant.

The obligee’s right of revocation may be revoked relatively between the obligee and the beneficiary or subsequent purchaser, and the obligor’s right of revocation may recover property deviating from the obligor’s responsible property.

Since the essence of compulsory execution is the right to recover, it is the right to recover the original state as the equivalent compensation.

If such performance is performed, the other party shall be a creditor (Supreme Court Decision 204 April 24, 2008).

The money deposited into an account in the name of the defendant, as recognized earlier, is 207Da84352,

B Even if all B have withdrawn and used Park 00, the liability property of Park 00 which was originally deviates

The defendant's assertion that the compulsory execution cannot be considered to have been restored to the creditor's condition.

shall not be accepted.

5) Furthermore, the bank account in the name of the Defendant, which was remitted by Park Jong-dae, was not opened and used in the name of the Defendant for 00 use, but was merely used temporarily for the financial transaction of a specific amount. As such, an increase or decrease in the balance of the account that was initially used by the Defendant for the financial transaction of a specific amount was mixed with that of the Defendant and that of 00, it is impossible to distinguish the money deposited in the Defendant’s deposit account (right of claim for refund of deposit) by 00 from the Defendant’s deposit. Therefore, since it is impossible to recover from the return of the right of claim for deposit, the Defendant is obligated to pay the Plaintiff for compensation at a rate of 5% per annum as provided by the Civil Act from the day following this judgment to the day of full payment.

3. Conclusion

If so, the plaintiff's claim is reasonable, and the court of first instance which has concluded otherwise.

Since the judgment is unfair, the judgment of the first instance shall be revoked and the plaintiff's claim shall be accepted as per the disposition.

this decision is rendered.