Korea

Defendant (Attorney Park Young-chul, Counsel for defendant-appellant)

November 29, 2016

1. The sales contract concluded on March 8, 2013 between the defendant and the non-party 1 (resident registration number omitted) and Geumcheon-gu Seoul (resident address 1 omitted) is revoked within the limit of KRW 97 million.

2. The defendant shall pay to the plaintiff 97 million won with 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of full payment.

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

The same shall apply to the order.

1. Facts of recognition;

A. The Plaintiff has global income tax on Nonparty 1 on August 31, 2013 and global income tax on December 31, 2012 (hereinafter “the instant claim”). The Plaintiff has a tax item, global income tax on August 31, 2013, KRW 288,864,360, the time of attribution 2012, and the date of establishment of tax liability (hereinafter “the instant claim”).

B. On March 8, 2013, Nonparty 1 entered into a contract to sell real estate (hereinafter “instant real estate”) as indicated in the separate sheet (hereinafter “instant sales contract”) to the Defendant, who is the child, in excess of the debt, at KRW 20 million (hereinafter “instant real estate”). On May 6, 2013, Nonparty 1 entered into a contract to sell the instant real estate as indicated in the separate sheet (hereinafter “instant sales contract”), and completed the registration of ownership transfer to the Defendant.

[Ground for Recognition: Facts without dispute, entries in Gap evidence 1 through 8, purport of the whole pleadings]

2. Determination

A. Determination as to the defendant's objection period and argument

The defendant asserts that the lawsuit of this case was filed with the lapse of the time limit for filing the lawsuit.

A lawsuit for revocation by a creditor shall be brought within one year from the date on which the creditor becomes aware of the cause for revocation (Article 406(2) of the Civil Act). Here, in order to find it aware of the cause for revocation, the fact that there was a juristic act by the debtor merely is insufficient to support the fact that the juristic act was prejudicial to the creditor. In other words, it should be known that the juristic act would not be able to fully satisfy the claim due to the lack of joint security of the claim or the lack of joint security already in a short state (see Supreme Court Decision 9Da53704 delivered on February 25, 2000, etc.).

The Plaintiff, after conducting a deliberation on the postponement of reorganization on June 30, 2014 on the amount in arrears for the year 2012 against Nonparty 1, issued a disposition of postponement of reorganization on June 30, 2014. According to the Plaintiff’s provision on the collection of national taxes, the Plaintiff’s disposition of postponement of reorganization was conducted to investigate the status of the delinquent taxpayer’s property, whether the delinquent taxpayer’s act of disposal of property is fraudulent, etc.; Nonparty 1’s voluntary auction case ( Address 2 omitted) against the Gunpo-si ( Address 2 omitted), from September 22, 2014, the Plaintiff (the head of the Geumcheon District Office) was distributed in KRW 38,727,159 to the Plaintiff on September 23, 2014; the Plaintiff’s disposition of postponement of reorganization was revoked on September 16, 2015, including the Plaintiff’s tax information number No. 23561, May 15, 2015.

However, the above facts alone are insufficient to recognize that the Plaintiff was aware of the fact that the instant sales contract was concluded at the time of September 23, 2014, and that the instant sales contract constituted a fraudulent act, and there is no other evidence to acknowledge it. Rather, according to the result of the order to submit the above taxation information, Nonparty 1 was holding the instant real estate at the time of the disposition to suspend the liquidation, and it is deemed that no investigation was conducted on the disposal of the instant real estate through the instant sales contract.

In addition, the Defendant alleged that the instant sales contract constituted a speculative act on September 23, 2014, when he knew that the Plaintiff’s revocation of the disposition to suspend the reorganization, and one year has elapsed since the revocation thereof, but the instant lawsuit was filed on September 16, 2014, before the lapse of one year from September 23, 2014 (the instant lawsuit was transferred to the instant court due to the transfer decision dated September 30, 2015), and accordingly, the instant lawsuit was filed on September 16, 2014, before one year has elapsed since the revocation of the disposition to suspend the reorganization (the transfer did not affect the observance of the filing period, see Article 40(1) of the Civil Procedure Act).

Therefore, the defendant's argument that the lawsuit of this case was filed after the lapse of the time period is groundless.

B. Establishment of fraudulent act

According to the above facts, the obligation to pay tax on December 31, 2012, before March 8, 2013, 2013, which was the date of the conclusion of the instant sales contract, became effective after the date of the conclusion of the instant sales contract, and thus, the time limit for payment has expired. Thus, the instant claim becomes a preserved claim for revocation of fraudulent act against the instant sales contract, and the instant sales contract between Nonparty 1 and the Defendant, who was in excess of the obligation, constitutes a fraudulent act detrimental to the joint security of the general creditors of Nonparty 1,

Therefore, the instant sales contract constitutes a fraudulent act.

(c) Revocation of fraudulent act and reinstatement;

In principle, in cases where a juristic act on real estate constitutes a fraudulent act, the cancellation of the fraudulent act and the cancellation of the transfer of ownership registration and the order to recover the real estate itself.

Meanwhile, in cases where a fraudulent act was committed with respect to a real estate on which a mortgage was established, such fraudulent act shall be 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. Thus, in cases where a registration of creation of mortgage was cancelled by repayment, etc. after a fraudulent act, the revocation of a fraudulent act would order the restoration of the real estate itself to the extent that it did not constitute a joint security of the general creditors, and would result in a violation of fairness and fairness, and thus, it is bound to claim revocation of the fraudulent act within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate (see Supreme Court Decisions 2007Da4004, Jun. 11, 200; 200Da45723, Dec. 12, 200).

Comprehensively taking account of the record of evidence No. 3 and the fact-finding with respect to the Mine-dong Saemaul Savings Depository, the right to collateral security was created with respect to the instant real estate on February 7, 2013 as the maximum debt amount of 159,900,000 won and the creditor Mine-dong Saemaul Savings Depository on April 30, 2014, which was after the conclusion of the instant sales contract, and on the same day after the cancellation of the instant sales contract, the above right to collateral security was cancelled on the same day. Since the amount of the secured debt of the above right to collateral security was recognized as KRW 123,00,000,000 at the time of the cancellation of the said right to collateral security, the joint collateral value as the limit of fraudulent act and value compensation is KRW 222,20,000,000,000 after deducting the above secured debt amount of KRW 123,00,000 from the value of the instant real estate as at the date of the closing

In relation to the value of the common collateral, the Defendant asserts that the deposit amount of KRW 160 million as stipulated in the lease agreement on the instant real estate should also be deducted. Thus, according to the evidence No. 2, it is acknowledged that the lease agreement was concluded with the lessor, Nonparty 1, 2, and 160 million won as to the instant real estate, but the above lease agreement was concluded on March 9, 2013, which was after March 8, 2013, which was the date of the conclusion of the instant lease agreement. Thus, the above lease agreement cannot be deducted from the value of the common collateral. The Defendant’s above assertion is without merit.

However, since the amount of the Plaintiff’s preserved claim is more than KRW 97 million, which is the value of the above joint collateral, the sales contract of this case, which is a fraudulent act, shall be revoked within the limit of KRW 97 million. Accordingly, the Defendant is obliged to pay to the Plaintiff damages for delay calculated at the rate of KRW 97 million per annum from the day following the date the judgment of this case becomes final to the day of complete payment, to the day of full payment.

3. Conclusion

The plaintiff's claim is accepted.

[Attachment]

Judges Shin Jae-ho