Daejeon District Court 2013Kahap101726 ( November 07, 2013)

Exclusion of a part is presumed to be a gift or to constitute a fraudulent act under the name of the depositor.

The remittance of the remaining account, excluding the money deposited in some accounts, is presumed to be a gift with the agreement of the account holder to grant the remittance amount free of charge to the Defendant, or constitutes the act of reducing liability property in relation to the general creditor through the deposit account holder title trust, and thus becomes subject to revocation of a fraudulent act.

2013Na12530 Revocation of Fraudulent Act

Korea

AAA

Daejeon District Court Decision 2013Gahap101726 Decided November 7, 2013

October 2, 2014

November 13, 2014

1.The judgment of the first instance shall be modified as follows:

A. The contract of gift concluded between the defendant and the LeeB on the remittance under paragraphs 4 and 6 of the attached list, and the contract of trust of the deposit owner concluded on the remittance under paragraphs 1, 5, 7 through 12 and 14 of the attached list shall be revoked.

B. The defendant shall pay to the plaintiff 297,130,000 won with 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of complete payment.

C. The plaintiff's remaining claims are dismissed.

2. The Plaintiff shall bear 5% of the total litigation costs, and the remainder shall be borne by the Defendant.

[Claim]

The primary purport of the claim is to revoke each contract of donation concluded between the defendant and the BB as shown in the separate sheet. The defendant shall pay to the plaintiff 308,379,420 won with 5% interest per annum from the day following the day when the judgment of this case became final and conclusive to the day of complete payment.

Preliminary Claim: Revocation of a trust contract with the name of deposit holders entered in the separate sheet between the defendant and B. The defendant shall pay to the plaintiff 308,379,420 won and 5% interest per annum from the day following the day when the judgment of this case became final and conclusive to the day of complete payment (the plaintiff added a preparatory claim at the trial. However, the plaintiff shall make a claim for revocation on the ground that the creditor's act of paying certain amount constitutes a fraudulent act, and that the creditor's legal assessment of the act of payment constitutes a gift or repayment, and it shall not be deemed that the subject of the lawsuit or claim itself is different (see Supreme Court Decision 2004Da10985, Mar. 25, 2005). In light of the above, the defendant's assertion that there is a different claim from the trust contract under the name of donation or deposit holders in relation to the legal assessment of the monetary remittance act cannot be viewed as a different defense from the claim itself as to the method of attacking the right to revoke the fraudulent act.

【Purpose of Appeal】

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

1. Quotation of judgment of the first instance;

The reasoning for this Court concerning this case is that the corresponding part of the judgment of the court of first instance is identical to that of the corresponding part except for the following parts, and thus, it is acceptable to accept this as it is in accordance with the main sentence of Article 42

2. Parts in height:

(b) Attachment list of the judgment of the court of first instance, as shown in the attached list attached to this judgment;

(b) The height between 16 and 10 pages of the judgment of the first instance shall be as follows:

B. Whether the fraudulent act was established

1) Summary of the parties’ assertion

A) Plaintiff

This constitutes a fraudulent act, since B, while knowing that the pertinent tax liability was delinquent, he/she transferred the instant money to the Defendant, who is the wife, or entrusted the name of the depositor, with the knowledge that it would prejudice the taxation right holders, constitutes a fraudulent act.

B) Defendant

The instant money constitutes a fraudulent act because it constitutes either a repayment of KRW 470,910,376 lent or consumed 56 times from May 23, 2007 to November 1, 2008, or an act of transferring common property of the couple as a fact-finding act, such as “the details of lending to B” as shown in attached Table 2.

2) Determination

A) A person who bears the burden of proof

(1) If a debtor donated his/her own property to another person under excess of his/her obligation, such act would constitute a fraudulent act, barring any special circumstances. However, in cases where the debtor’s repayment of debts to a certain creditor under excess of his/her obligation would result in a decrease in the joint security of other creditors, such repayment does not constitute, in principle, a fraudulent act unless the debtor, in collusion with some creditors, performed performance with the intent of undermining other creditors. However, in cases where the creditor seeking revocation of a fraudulent act claims payment of money to the beneficiary of the debtor as a gift of the debtor’s existing obligation, the beneficiary is asserting that the debtor was paid the money to the beneficiary, which constitutes a denial of the creditor’s assertion, and as seen in the above legal principle, there is a significant difference between the debtor’s claim and the creditor depending on whether the act of paying the money was a gift or whether the repayment was performed. Accordingly, it should be proved that the act of paying the money constitutes a gift to be recognized as a fraudulent act, or there is an intent to harm the creditor’s intent to pay the money, etc.

(2) In light of the above legal principles, in case where the creditor seeking revocation of a fraudulent act asserts that the act of payment of money to the debtor's beneficiary was a gift or the act of title trust to the deposit owner, the beneficiary asserts that the act of payment of money constitutes a gift or the act of title trust to the deposit owner, the burden of proving that the act of payment of money constitutes a gift or the act of title trust to the deposit owner is the plaintiff, who

B) The legal nature of the remittance of this case and whether it constitutes a fraudulent act

(1) Relevant legal principles

In the event of a transfer of money to another person’s deposit account, the remittance may be made based on a variety of legal causes. The mere fact that a person with a certain personal relationship consented or understood to transfer money to his/her own deposit account or to allow him/her to substantially control his/her own deposit account in order to avoid tracking the transfer of money to another person’s deposit account, barring any special circumstance, it cannot be readily concluded that the remitter and the account holder objectively agreed to give the remittance amount free of charge to the account holder, barring any special circumstance. This does not necessarily mean that the account holder has the right to claim the return of deposit as a party to the deposit contract, barring any special circumstance, even if the account is opened through a real name verification procedure under the Real Name Financial Transactions Act and the account holder has the right to claim the return of deposit as a party to the deposit contract. This is related to the financial institution with which the account was opened, and thus, the legal relationship between the remitter and the account holder does not immediately change (see Supreme Court Decision 2012Da30861, Jul. 26, 201

(2) As to the act of remitting to one bank to the account 000-0000-00000, to the account 111-111-11, to the National Bank, and to the account 2222-22222

Since the legal nature of the remittance act of this case seems to be closely related to the nature of the account where the remittance was performed, the following is examined by dividing it into accounts and examining the legal nature of the remittance act of this case.

(A) The fact that B remitted 1,80,000 won to the Defendant on June 5, 2008 to the account of 00-000-0000-00000 one bank on the same day, and it transfers 1,000,000 won to the account of 111-111-111 of one bank on the same day, and transfers 8,449,420 won on December 15, 2008 to the account of 2222-22222222 of the National Bank.

(B) However, it is difficult to readily conclude that there was an agreement between BB and the Defendant on the intent to grant the remittance amount free of charge to the account holder, or that there was an agreement on the trust of the account holder in the name of the account holder with respect to the remittance amount, solely on the ground that such remittance was

(C) Therefore, barring any other circumstances, this part of the remittance cannot be deemed to constitute a fraudulent act without having to examine any further.

(3) As to the act of remitting money to an account by Han Bank 33-3333-333

(A) In full view of the purport of the entire pleadings in the statement No. 6 of the evidence, the following facts are acknowledged (only the transaction of a relatively large amount of money is indicated with the focus on the transaction in 2008, in which the aforementioned remittance was committed).

(B) In full view of such factual relations and the circumstances revealed therefrom, namely, that deposit to the above account was made by cash or cashier’s checks at the Defendant’s name or at the △△ branch in which the Plaintiff operated the principal place of payment, and most of the money was deposited to the Fund under the Defendant’s name, and it appears that there was no money returned or disbursed for this BB among the money, and that there was no occupation or income of the Defendant. In full view of the fact that the Defendant appears to be the wife and there was no apparent occupation or income, the instant remittance act in the above account is presumed to be a gift with the agreement of the account holder to grant the remittance amount to the Defendant free of charge, and that there was no transaction transferred by the Defendant to this B, as argued by the Defendant before and after the instant remittance act in the above account.

(C) As seen earlier, at the time of donation according to the instant remittance, this BB was in excess of its obligation as indicated in the attached Form BB’s property status. In light of the aforementioned circumstances, it is reasonable to deem that the debtor, as the debtor, was aware that the said donation would cause the shortage of joint security and prejudice to the general creditors, including the Plaintiff. The Defendant’s bad faith, the beneficiary, is presumed and there is no evidence to support this.

Therefore, the contract of donation on the remittance of the above account constitutes a fraudulent act.

(4) As to the act of remitting money to the account of Han Bank 444-444-444 (the act of remitting money of this case) (the act of remitting money of this case)

(A) In full view of the purport of the entire pleadings in the statement No. 2, the following facts are acknowledged (only the transaction of a relatively larger amount of the transaction in the above account shall be indicated).

(B) Considering such factual relations and the circumstances known from the above, i.e., the part deposited in the above account under the name of a third party, and considerable portion of the money deposited in the above account appears to be transactions related to the operation of the BB’s station. The cash or cashier’s checks deposited in the above account is deposited in the △△ branch of the Han Bank, which operated the principal office, appears to be related to the operation of the BB’s station. Considering the fact that the above account was deposited in the above account, it is reasonable to view that the above account was deposited in the account by the Defendant to have been deposited in the above account under the name of the said account, including the money transferred from the account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account transfer and account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account’s account and account’s account’s account account’s account’s account’s account’s account’s account’s account’s account’s account’.

(C) (1) As seen earlier, in the case of a deposit account opened through a real name verification procedure under the real name verification system, the account holder has the right to claim the return of the deposit as a party to the deposit contract (see, e.g., Supreme Court en banc Decision 2008Da45828, Mar. 19, 2009). In addition, in a case where the remitter transferred the money to the deposit account of the payee pursuant to the basic terms and conditions of deposit transaction and the deposit is recorded in the deposit ledger by the remitter, barring any special circumstance, the deposit contract equivalent to the above deposit amount between the remitter and the receiving bank is established between the remitter and the receiving bank, regardless of whether there is a legal relationship as a cause for the transfer of money between the remitter and the payee, and the payee acquires a deposit claim equivalent to the above deposit amount (see, e.g., Supreme Court Decision 2011Da89040, Mar. 29

In light of the above legal principles, B may seek the return of the money deposited in the account in this case against the Defendant by this B, the contributor, due to the deposit agreement between this B and the Defendant. However, in external relations, unless the deposit account holder’s title trust is terminated, the creditor of this B may not directly seize the money deposited in the account in this case under the name of the Defendant or the deposit claim equivalent to the said amount.

Therefore, it is reasonable to view that the title trust of deposit holders to the above account between BB and the Defendant constitutes a juristic act subject to revocation of fraudulent act as it ultimately constitutes an act reducing liability property in relation to the general creditors of BB’s relationship (in the case of a title trust, which is null and void due to a violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name, the transfer of property from an obligor based on the false indication, etc. to a beneficiary is null and void, and the act of false indication or title trust becomes subject to revocation of a fraudulent act (see Supreme Court Decisions 97Da50985, Feb. 27, 1998; 2002Da69358, Mar. 25, 2004).)

② On the other hand, as seen earlier, at the time of title trust with the account holder’s transfer of this case, this B had been in excess of the obligation as indicated in the attached Form BB’s financial status. In light of the aforementioned circumstances, it is reasonable to deem that the debtor, B, as the debtor, was aware that there was a shortage of joint security and thereby prejudice the general creditors, including the Plaintiff. The Defendant’s bad faith, the beneficiary, is presumed and there is no evidence to support this.

Therefore, a deposit owner’s title trust agreement on the instant remittance act of the said account constitutes a fraudulent act.

(c) Revocation of fraudulent acts and reinstatement;

Therefore, the above donation contract and deposit share trust contract between the defendant and the LeeB shall be revoked in all as a fraudulent act, and the defendant shall be obligated to pay to the plaintiff a total of KRW 26,600,000 in total and KRW 270,530,000 in total, and KRW 297,130,000 in total, and damages for delay calculated at the rate of 5% per annum under the Civil Act from the day following the day when the judgment of this case became final and conclusive to the day of full payment.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above-mentioned and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is partially unfair with the conclusion, it is so decided as per Disposition by changing the judgment of the court of first instance as above.