Because the basic legal relations have already occurred at the time of omission of sale, it constitutes a fraudulent act.

Tax claims have already been based on basic legal relations at the time of omitting sale, and there was a high probability that tax claims will be established in the near future, as well as in fact, since tax claims have been established through tax evasion investigation, gift contracts on buildings constitute fraudulent acts, and the defendant's bad faith is presumed to be the beneficiary.

Article 30 of the National Tax Collection Act

201Aband 21080 Revocation of Fraudulent Act

Korea

Category XX

March 13, 2012

March 27, 2012

1. The contract of donation concluded on March 3, 2010 with respect to multi-family housing No. 302 of the fourth-story reinforced concrete building on five parcels of land, Yongsan-gu, Seoul, Yongsan-gu, Seoul, and Gangwon-do, shall be revoked within the limit of KRW 258,896,247.

2. The defendant shall pay to the plaintiff 258,896,247 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

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

The same shall apply to the order.

1. Basic facts

(a) Existence of a taxation claim;

1) GangnamA (*****************) was operating a computer retail and repair company under the trade name of Yongsan-gu Seoul Metropolitan City from March 2003, XX0 to 00-0, and discontinued on November 30, 2010, and the defendant was the spouse of Yongsan-gu.

2) During running the “ XX”, Gangwon demanded the employees to receive computer repair costs in cash, and filed a report on partial omission of sales by having the employees keep the said cash in a borrowed account and managing it. In the process, there was a little dispute over the distribution of profits and employees in relation to the aforementioned tax evasion act from around 2009.

3) On April 13, 2010, the head of the Yongsan Tax Office received the information that the above " XX" was omitted from the sales, and as a result, the head of the Yongsan Tax Office, from October 23, 2010 to October 27, 2010, revealed the fact that the Gangseo filed a tax return by omitting part of the sales transactions subject to value-added tax, global income tax, business income tax, and wage and salary income tax from 2006 to 2010. On November 9, 2010, the Gangwon Tax Office notified the Gangwon Tax Office to pay the total of KRW 1,50,5695,600 from 206 to 2010.

4) The Gangnam did not pay the increased or decreased value-added tax, global income tax, business income tax, and labor income tax by the payment deadline as above. On October 31, 201, the amount of delinquent taxes of the Gangnam-A’s value-added tax, global income tax, business income tax, and earned income tax as of October 31, 201 is equivalent to KRW 1,710,174,800, including additional dues (hereinafter “instant tax claim”).

B. Registration relation to the building of this case

1) The Gangnam-gu Seoul Yongsan-gu Seoul Metropolitan Government Branch of the District Court concluded a donation agreement on March 3, 2010 with the Defendant on March 3, 2010 (hereinafter “the instant donation agreement”) with respect to the fourth-story apartment building of reinforced concrete building of 5 lots (hereinafter “instant building”) owned by it, and the Defendant completed the registration of ownership transfer to the Defendant under the receipt No. 6847 of receipt on March 4, 2010.

2) On October 25, 2006, the Yongsan District Court of the Seoul Western District on the instant building: (a) under the Act No. 43566 on October 25, 2006, the registration of the establishment of a neighboring mortgage at KRW 156,000 was completed; (b) on November 25, 2010, the registration of the cancellation was completed as the receipt of the said registration office under the Act No. 37684.

3) The Defendant: (a) sold the instant building on February 8, 2011 as the grounds for registration; and (b) completed the registration of ownership transfer with the Yongsan District Court, Yongsan District Court No. 9752, Mar. 15, 201, under receipt No. 9752 on March 15, 201.

C. The financial status of the Gangwon and the divorce of the Gangwon and the defendant

1) At the time of the donation contract of this case, Gangwon had positive property equivalent to KRW 390,00,000 and financial property (the remainder as of April 12, 2010 against OS Securities Co., Ltd.) of KRW 5,429,026, and as a small property, there were KRW 1,550,695,600 in total with the principal tax other than additional dues, etc. among the instant tax claims, the collateral security liability set forth in the instant building was KRW 131,103,753.

2) On November 29, 2006, Gangnam A filed an application for confirmation of divorce with the Seoul Western District Court on September 27, 2010, after completing a marriage report with the Defendant on November 29, 2006, and the husband and wife filed an application for confirmation of divorce with the Seoul Western District Court, and the agreement on January 27, 201 was married.

[Ground of recognition] Facts without dispute, Gap Ll or 8, Eul evidence Nos. 1 and 3 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination

(a)the existence of preserved claims;

1) Relevant legal principles

In principle, a claim that can be protected by a creditor's right of revocation shall arise before the act that can be viewed as a fraudulent act was conducted, but there has already been a legal relationship that serves as the basis for the establishment of a claim at the time of the fraudulent act, and there is high probability that the claim will be established in the near future, and where a claim has been created in the near future because its probability has been realized in the near future, the claim may also become a preserved claim. This legal principle applies to a tax claim. Thus, even in the case of a tax claim, even if the debtor did not take a disposition by a specific decision of correction, etc. at the time of the act, the basic legal relationship concerning the creation of a tax claim occurred with the income that is the basis for the tax claim, and if a tax claim was established in detail through a series of procedures, such as a decision of correction, etc., under the high probability of establishing a claim in the near future, such a tax claim may become a preserved claim (see Supreme Court Decision 200Da37821, Mar. 23, 2001).

2) Determination

However, according to the above facts, the Gangwon-do Tax Office did not receive a tax notice on the delinquent tax amount from the Director of the Yongsan-do Tax Office at the time of entering into the gift contract of this case. However, from 2006, the Gangwon-do Tax Office had continuously omitted the sales of value-added tax, global income tax, business income tax, and wage and salary income tax until the investigation of the tax evasion by the Director of the Yongsan-do Tax Office was conducted. The tax claim of this case had already occurred at the time of the act of omitting the sales as above. Since 2009, the Gangwon-do Tax Office had a dispute over the distribution of profits from its employees and tax evasion. Since 2009, it was highly probable that the tax claim of this case was established based on the above legal relations in the nearest future as the omission of sales was continued for a long period. In fact, there was a high probability that the tax claim of this case was established based on the above legal relations.

In light of the above legal principles, the defendant's act of calculating the amount of input tax on the part of a computer repair company, which is operated by the Gangwon Tax Office, is accompanied by the work of replacing most of the parts to be repaired on the computer repair, and the value of the parts purchased by the Gangwon Tax Office to be deducted from the amount of input tax on the tax claim of this case, such as value-added tax, should be calculated, but the Director of the Yongsan Tax Office did not deduct from the amount of output tax on the ground that the Gangwon Tax Office failed to submit the tax invoice concerning the input tax deduction. Since the disposition of imposing taxes on the Gangwon Tax Office is invalid, the plaintiff asserts that the amount of input tax on the Gangnam is invalid, and therefore, there is no evidence to acknowledge that the head of the Yongsan Tax Office calculated the amount of the tax claim of this case without deducting the amount of input tax on the part of the computer repair company from the amount of input tax on the part of the 20th entrepreneur's input tax invoice, the defendant's assertion that the amount of input tax on the part of the 10th entrepreneur's input tax invoice and the amount of input tax.

B. Establishment of fraudulent act

1) In a case where the debtor's property is insufficient to fully repay his/her obligation, if the debtor donates his/her property to a certain creditor, or provides it as a payment in substitutes or a security, barring any special circumstance, it would be prejudicial to the interests of other creditors, and thus, it would be a fraudulent act in relation to other creditors, and the same applies even if the above property provided as payment in substitutes or a security is not the debtor'

2) According to the above facts, since Gangwon was in a state of excess of its obligation at the time of entering into the instant gift contract, it constitutes a fraudulent act that causes a decrease in common creditors’ joint security, barring any special circumstance, and the Defendant’s bad faith, a beneficiary, is presumed to have been presumed. Accordingly, the instant gift contract between Gangwon and the Defendant ought to be revoked as a fraudulent act.

3) As to this, the Defendant asserted that the instant donation contract was concluded as a part of the division of property while the agreement with the Gangwon-do Government was reached, and that it does not constitute a fraudulent act since its degree is excessive. As seen above, since the instant donation contract was concluded before the Gangwon-do Government and the Defendant applied for confirmation of the intention of divorce with the court, it is not sufficient to recognize that the instant donation contract was concluded as a part of the division of property while the agreement between the Gangwon-do and the Defendant was reached. Since there is no other evidence to support this, the Defendant’s assertion is without merit. Rather, according to the evidence evidence No. 4, the Defendant paid the amount of Gangwon-A’s fine with the amount of money borrowed on November 26, 2010, which was established and borrowed on the instant building after the conclusion of the instant donation contract, even after the conclusion of the instant donation contract.

4) Next, the defendant defense that he did not know that the gift contract of this case constitutes a fraudulent act. Thus, the defendant's defense is without merit, since there is no evidence to acknowledge it.

(c) Cancellation and reinstatement;

1) In the event that a real estate on which a mortgage is established is transferred to a fraudulent act, such fraudulent act is established only within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate. Therefore, in the event that a registration of creation of a mortgage is cancelled by repayment, etc. after a fraudulent act, the fraudulent act can only be cancelled within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate (see, e.g., Supreme Court Decision 2002Da41589, Nov. 8, 2002) and the compensation amount is limited within the scope of the claim amount of the cancelled creditor, so the scope of revocation of a fraudulent act and compensation for value should be limited to the smaller amount between the value of the real estate jointly held by the general creditors at the time of the fraudulent act as well as the amount of the plaintiff's cancelled claim (see, e.g., Supreme Court Decision 97Da6711, Feb

2) The instant donation contract concluded on March 3, 2010 between the Defendant and the Gangwon-A shall be revoked as a fraudulent act, and the registration of ownership transfer in the name of the Defendant with respect to the instant building shall be cancelled due to its restitution. As seen above, the instant building was established prior to the conclusion of the instant donation contract under the name of the Bank prior to the conclusion of the instant mortgage contract, and since the said mortgage was cancelled after the conclusion of the instant donation contract and the original return was impossible, the Plaintiff is only entitled to seek compensation for damages within the limit of the amount of the preserved claim amount within the limit of the amount of the joint collateral value of the instant building.

3) As of October 31, 201, the Plaintiff’s secured claim amount was KRW 1,710,174,80 as of October 31, 201; the market price of the instant building was KRW 390,00,00; and the actual secured claim amount of the right to collateral security established on the instant building is 131,103,753, as seen above. As such, the common secured value of the instant building is KRW 258,896,247 ( = 390,00,000 - 131,103,753) calculated by deducting the secured claim amount of the right to collateral security from the market price of the instant building; thus, compensation for the cancellation of the instant gift contract should be paid within the limit of KRW 258,896,247.

4) Therefore, the contract of this case concluded on March 3, 2010 between the Defendant and the Gangwon-A with respect to the instant building is revoked within the limit of KRW 258,896,247, and the Defendant is obligated to pay the Plaintiff damages for delay at the rate of KRW 258,896,247 with compensation for its equivalent value at the rate of 5% per annum as stipulated in the Civil Act from the day following the day this judgment became final and conclusive to the day of full payment.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.