The excessive division of property due to divorce is a fraudulent act.

Since the gift of this case is an excessive division of property within the extent of KRW 522,522,954, exceeding the amount to be divided into the Defendant among KRW 847,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0

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

2014Na2013349 Revocation of Fraudulent Act

Korea

AA

November 19, 2014

January 16, 2015

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

A. The portion equivalent to KRW 522,52,954 out of the gift contract concluded on August 13, 2012 between the Defendant and BB shall be revoked.

B. The defendant shall pay to the plaintiff 522,52,954 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

C. All remaining claims of the Plaintiff are dismissed.

2. Of the total litigation costs, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The contract of donation of KRW 847,00,000, which was concluded on August 13, 2012 between the Defendant and BB shall be revoked.

The defendant shall pay to the plaintiff KRW 847,000,000 and shall be repaid to the plaintiff from the day following the day this judgment becomes final and conclusive.

By the day, 5% interest per annum shall be paid.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Basic facts

(a) Sale and purchase of the instant real estate by BB

1) On August 9, 2012, 2012, BB sold OOOOOO 00-00 land and buildings on land (hereinafter collectively referred to as “the instant real estate”) to CCC and DD for KRW 8.25 billion. As to the said real estate, BB agreed that the buyer succeeds to the total amount of KRW 3.388 billion, including the secured debt of the right to collateral security and the lease deposit obligation of the new bank established in the future of the new bank as to the said real estate, and BB agreed to receive only the difference of KRW 4.87 billion as the remainder (hereinafter referred to as “instant sales contract”).

2) On August 13, 2012, BB completed the registration of transfer of ownership on the said real estate to the said purchaser, and cancelled other collateral security and seizure registration established on the said real estate, and received payment of KRW 4.87 billion from the said purchaser on the same day.

B. The gift of this case to the defendant of BB

BB, on August 13, 2012, on the same day, decided to donate KRW 847 million to the Defendant, who is one’s own wife, and immediately, upon receiving the aforementioned balance from the buyer, remitted the amount of KRW 847 million out to the Defendant’s account (hereinafter “the instant donation”).

C. Plaintiff’s transfer income tax imposition

BB made a preliminary return on the tax base of transfer income from the sale of the above real estate, but did not pay capital gains tax of KRW 1,63,075,809, which was determined as of January 10, 2013 as KRW 1,683,282,179 (the amount obtained by adding additional tax to the original determined tax amount plus KRW 20,206,370), and is still delinquent until now.

[Grounds for Recognition] Unsatisfy, Gap evidence Nos. 1-3, 7, 10 (including paper numbers; hereinafter the same shall apply)

each entry, the testimony of the first instance witness BB, and the purport of the entire pleadings.

2. Determination as to the cause of action

(a)the existence of preserved claims;

According to the above facts, although the Plaintiff’s taxation claim of this case is specifically determined by the BB’s report on tax base after the donation of this case and the disposition of imposition of additional tax by the tax authority, the legal relationship, which forms the basis for the occurrence of the taxation claim, has already been established by transferring the real estate of this case that was owned by BB immediately before the donation of this case, and in light of the transfer difference, etc., there was a high probability that the taxation claim should be established in the near future, and it can be deemed that the pertinent taxation claim was established by realizing the possibility in the near future, and thus, it can be deemed that the pertinent taxation claim was established (see, e.g., Supreme Court Decision 2006Da66753, Jun. 29, 2

B. Establishment of fraudulent act

1) In full view of the purport of Gap's evidence Nos. 2-11, 15, 16, Eul's evidence Nos. 5-9, 14, and 16, and Eul's testimony and arguments as to witness B of the first instance trial, BB bears a total of KRW 6,174,486,857 at the time of the instant donation, while B had a total of KRW 5,150,143,679, as seen in the following table. Accordingly, BB had a total of KRW 5,150,143,679 at the time of the instant donation. Accordingly, BB donated a total of KRW 847,00,00 to the defendant who is the wife at the time of the instant donation, barring any special circumstance, the instant donation constitutes a fraudulent act against the plaintiff.

(ii) provisional attachment obligations against EE and F.

The Plaintiff asserts that the provisional attachment obligation against EE and FF should also be included in the passive property. According to each of the above evidence, the Plaintiff’s provisional attachment of EE and FF with respect to the instant real property prior to the instant donation was made by each claim amounting to KRW 40 million, 150 million, and 150 million, and the Plaintiff can be recognized as having deposited the amount equivalent to the claim amount of each of the instant provisional attachment as of the date when the Plaintiff sold the instant real property and received any balance, and filed an application for revocation of provisional attachment execution. As such, BB at the time of the instant donation, at the time of the instant donation, was liable to the EE and FF amounting to KRW 190 million (= KRW 40 million + KRW 150 million). This part of the Plaintiff’s assertion is with merit.

3) As to the obligations against GG, HH, III, JJ, KK

The Plaintiff asserts to the effect that the obligations owed to GG, HH, III, JJ, KJ and KK (hereinafter “GGGG, etc.”) among the details of the instant real estate purchase price payments (Evidence No. 15) in paragraphs 4 and 5 should be calculated as the small property of BB.

The details of the above purchase price (Evidence No. 15) include KRW 150,000,000 for BB’s obligations to GG, KRW 80,000 for HH, KRW 80,000 for obligations to HH, KRW 120,000 for obligations to JJ, KRW 10,000 for obligation to KK, and KRW 110,000 for obligations to K.

However, comprehensively taking account of the overall purport of the Plaintiff’s statements and arguments as to Eul-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-S-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-S-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-B-E-E-E-B-E-E-E-E-E-E-E-S-E-E-E-E-E-E-E-E-E-E-S-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-E-A-A-A-A-E-A.

3. The defendant's defense and judgment on it

A. As to the claim for division of property

1) Whether it is money paid as division of property

In full view of the evidence Nos. 1, 3, 4, and 10 and the testimony and arguments of the first instance court witness BB, the defendant married with BB around 1983 and lived together with two children. However, around 1998, BB's external intent and violence against the defendant, and eventually, the divorce between BB and BB on September 3, 2003 (hereinafter "the first agreement"), and the defendant and BB were married again on September 2, 2005 for raising their children, but on December 17, 2012, the agreement was filed again for confirmation of intention, and on August 12, 2013 (hereinafter "the second agreement"), the defendant and B did not recover part of the proceeds from the sale of the real estate in this case, but did not recover from the proceeds from the sale of the real estate in this case.

In light of the above facts, it is reasonable to view that the instant donation was made through the division of property following the divorce between the Defendant and BB. This part of the Defendant’s assertion is with merit.

2) Whether a conspiracy or false conspiracy is null and void

On the other hand, the Plaintiff asserts that the second agreement between the Defendant and the BB is the most false divorce to evade compulsory execution following the disposition of national tax in arrears against the BB, and the instant donation agreement is null and void as a false conspiracy to conceal the BB’s property. However, the Plaintiff’s indirect facts alone are insufficient to recognize that the second agreement between the Defendant and the BB is the largest divorce, or that the instant donation agreement is the false conspiracy, and there is no other evidence to acknowledge it. The Plaintiff’s assertion on this part is without merit.

3) Whether property is excessive

A) Summary of the Plaintiff’s assertion

In light of the amount of the instant donation, the property status of BB at the time, and the actual profits earned by the Defendant under the mutual trade agreement with the buyer while selling the instant real property, etc., the instant donation is a excessive division of property beyond a considerable degree.

B) Relevant legal principles

Although a debtor who has already been in excess of his/her obligation has transferred a certain property to his/her spouse as a result of the reduction of joint security against the general creditor, the above division of property shall not be subject to revocation by a creditor as a fraudulent act unless there are special circumstances that are deemed to have been excessive beyond a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act. However, since it cannot be deemed as a legitimate division of property with respect to the portion exceeding the above considerable degree, it may be subject to revocation. The burden of proving that there are special circumstances that it is excessive division of property beyond the above considerable degree is the creditor (see, e.g., Supreme Court Decisions 200Da14101, Jul. 28, 200; 2006Da3258, Sept. 14, 2006).

C) the determination of property to be divided;

In light of the following facts, Gap evidence No. 12, Eul evidence No. 16, and Eul evidence No. 16, witness No. 12, and witness No. 2B's testimony and the whole purport of pleadings, the balance of active property which remains after deducting the negative property from the property subject to division at the time of the second agreement divorce between the defendant and BB shall be KRW 1,808,256,82 (i.e., active property 5,150,143,679 + Defendant's active property 218,000 won - BB's active property - KRW 3,559,86,857).

(1) The active property of BB

Article 830 of the Civil Act provides that one spouse’s own property prior to marriage and that one spouse’s own property acquired in his/her name during marriage shall be the unique property. However, even if one spouse acquires and maintains the property inherited or the real property already disposed of, if the other party’s family labor, etc. contributed directly or indirectly to the other party’s family labor, etc. (see Supreme Court Decision 96Meu1434, Apr. 10, 198). In full view of the testimony and arguments by the first instance witness BBB, the Defendant is recognized to have maintained and maintained the aforementioned active property formation. Thus, the entire amount of KRW 5,150,143,679, supra, is the property subject to division.

(2) BB’s passive property

In addition to ordinary family affairs, the debt owed by one spouse to a third party during marriage is not subject to liquidation as an individual debt in principle, but is subject to liquidation (see, e.g., Supreme Court Decision 92Meu501, May 25, 1993). From among the small property of BB, the part indicated by BB as a living expense (158 million won) is included in BB as a debt subject to liquidation under the above legal principles, since it is reasonable to include the remaining debt (i.e., KRW 50,984, 486, 875, 881, 857, and 34857, supra) among the small property of BB, as the tax debt of this case, reputation credit union, loan debt of the KB, mortgage debt of the KB Bank, national tax and local tax and KRW 3401,86,857,000,000,000,000 won, and thus, it is reasonable to include the remaining debt of BB as a total debt subject to liquidation.

(3) The defendant's active property

As seen later, as seen earlier, the Defendant purchased the land and buildings from CCC, DD on August 9, 2012, 12, 1217-1, Gangnam-gu, Seoul, Gangnam-gu, Seoul (hereinafter referred to as “the above land and buildings”) and paid KRW 1 billion out of the purchase price to KRW 847 million received from BB as the gift of this case, and the total amount of the Defendant’s property at that time (No. 12 evidence and No. 16-2). As such, the Defendant paid KRW 1,00,000,000 from the bank as the total amount of KRW 847 billion received from BB as the gift of this case and KRW 16 billion (or KRW 2,00,000,000,000 from the bank as seen earlier). At the time of the donation of this case, the Defendant existed as the Defendant’s active property at KRW 65,000,00,000 won and KRW 1,788 billion.

(4) The defendant's small property

There is no evidence to prove this.

D) Defendant’s apportionment ratio

In the division of property following divorce, the property division may be divided by including the liquidation elements of the property formed during marriage and the support elements after divorce, other than the support elements (defensive materials). (See, e.g., Supreme Court Decisions 2004Da58963, Jan. 28, 2005; 2000Da58804, May 8, 2001).

In full view of the circumstances that are considered comprehensively based on the evidence Nos. 24-24, 17-21, 24-27, the testimony and the entire purport of the argument by the witness BB of the first instance trial, i.e., the process of forming the property subject to division, the misconduct and violence of BB during two times of divorce, the Defendant’s burden of raising minor children, and the first agreement that there is no objective evidence to prove that there was a property divided to the Defendant at the time of the first agreement, it is reasonable to determine that the Defendant’s contribution is 30%.

E) Amount to be divided to the Defendant

C) 542,47,046 won (i.e., KRW 1,808,256,256,822) (i.e., KRW 1,808,256,82 x 30% x less than KRW 30% x less than KRW 218,046 won (i.e., KRW 542,477,046 - KRW 218,000), which is the total value of property subject to division of property (i.e., KRW 542,477,046 - KRW 218,00,00).

F) Profits earned by the Defendant

(1) The gift amount of this case KRW 847 million

(2) Comprehensively taking account of the overall purport of Gap evidence Nos. 12, 13, and 16 with respect to profits equivalent to the difference arising from the acquisition of salt of the second real estate of this case, the defendant purchased the second real estate of this case from the CCC, etc. of KRW 3.25 million with respect to the price of KRW 185 million with respect to the said real estate, the defendant succeeded to the obligation of KRW 185 million with respect to the said real estate, and paid KRW 3.65 billion with the remainder of KRW 3 billion with the payment of KRW 2 billion with the collateral. According to the above facts, the sales contract of this case and the second real estate sales contract of this case were concluded on the same day with the involvement of BB, the defendant acquired the second real estate of KRW 2 billion with the loan of KRW 2 billion to the above CCC on August 9, 2012, and the appraisal and assessment price of KRW 2,700,000,000,000 won with the loan of KRW 281.7.64 billion.

However, comprehensively taking account of the following circumstances: (i) the real estate sales price of this case was KRW 8.25 billion at the time of the real estate sales contract; (ii) the standard market price of the real estate of this case was KRW 5.4 billion at the time of the real estate sales contract; and (iii) it is difficult to readily conclude that the amount equivalent to the above difference was reflected in the sales price of the real estate of this case as at July 27, 2009, since the appraised value of the real estate of this case was KRW 6,522,722,00; (ii) it was difficult to readily conclude that the real estate sales price of this case was lower than the market price at the time of the sale of the real estate of this case due to the long-term erosion of the real estate market at the time of the sale of the real estate of this case, and there was no purchaser, taking into account the difference between the appraised value and the purchase price of the real estate of this case as at the time of the sale of the real estate of this case.

Therefore, this part of the Plaintiff’s assertion that the Defendant gained profit equivalent to the difference in this part solely on the ground that the Defendant’s purchase price of the second real estate was lower than the above difference in the appraised value at the time.

G) Part acknowledged as excessive division of property

Therefore, the gift of this case is an excessive division of property within the scope of KRW 522,52,954 exceeding the amount to be divided to the defendant among KRW 847,00,000 of the gift amount of KRW 324,477,00 (=847,00,000 - KRW 324,477,046).

B. Defendant’s bona fide defense

The Defendant asserts that at the time of the instant donation, BB did not know that the said donation would prejudice the Plaintiff as the obligee. However, in light of the relationship between BB and the Defendant, the property status of BB, and the amount of donation to the Defendant, etc., it is reasonable to deem that the Defendant was aware of the circumstances that the Plaintiff would prejudice the Plaintiff at the time of the instant donation, and there is no other evidence to support that the Defendant was bona fide. The Defendant’s defense is without merit.

C. Scope of revocation of the gift contract of this case and restitution

Therefore, the above 522,522,954 won of the donation contract of this case shall be revoked as a fraudulent act against the plaintiff, and the defendant shall be liable to pay the plaintiff the above 522,522,954 won with compensation for value and damages for delay calculated at the rate of 5% per annum as provided by the Civil Act from the day following the day this judgment becomes final and conclusive to the day of full payment.

4. Conclusion

Thus, each claim of the plaintiff shall be accepted within the scope of the above recognition, and the remainder shall be dismissed, respectively, as there is no reason. Since the judgment of the court of first instance is improper with a different conclusion, part of the defendant's appeal shall be accepted, and the judgment of the court of first instance shall be modified as