Gwangju District Court 2012Kadan513934 (Law No. 29 May 2013)

in excess of debt, the debtor's act of disposal of property to a third party constitutes a fraudulent act.

The conclusion of a sales contract with the defendant for the sole property in excess of debt constitutes a fraudulent act that causes a decrease in the joint security of the general creditor, barring special circumstances, and the beneficiary's bad faith is presumed in the event the debtor's act of disposal of property to a third party constitutes a fraudulent act

Article 30 of the National Tax Collection Act

2013Na51151 Revocation of Fraudulent Act

Korea

CHAPTER A

September 4, 2013

October 2, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant and KimB cancel each sales contract concluded on May 14, 2012 with respect to each real estate indicated in the separate sheet between the defendant and KimB, and the defendant will implement the procedure for cancellation registration of each transfer of ownership completed on May 15, 2012 by the Gwangju District Court No. 96116 on each real estate listed in the separate sheet to KimB.

2. Purport of appeal

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

1. Basic facts

A. Tax claims held by the Plaintiff against KimB are OOO members as shown in the attached Form. On April 23, 2012, the director of the North Mine District Tax Office sent a notice of revised return on underreporting the sales amount of the KimB’s business establishment. However, KimB did not pay the amount in arrears, and after conducting a comprehensive investigation from 2009 to 201, KimB notified the amount in arrears between August 201 and October 2012.

B. On May 14, 2012, KimB entered into a sales contract with the Defendant, who is a child (hereinafter “instant sales contract”) with respect to each real estate indicated as the only property indicated as the attached real estate (hereinafter “each of the instant real estate”) in excess of the debt, after receiving the revised report notice from the director of the Gwangju Mine District Tax Office, and completed the registration of ownership transfer (hereinafter “the instant registration of ownership transfer”) on May 15, 2012 by the Gwangju District Court No. 96116.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 8 (including a provisional number), the purport of the whole pleadings

2. Determination on the cause of the claim

The plaintiff's claim against KimB was wholly incurred prior to the sales contract of this case, and the creditor's right of revocation is the preserved claim.

According to the above facts, it is presumed that KimB entered into a sales contract with the defendant for each of the instant real estate, the only property in excess of the debt, constitutes a fraudulent act that causes a decrease in common security of general creditors, barring any special circumstance. In the event that the debtor's act of disposal of property against a third party constitutes a fraudulent act, the beneficiary's bad faith is presumed

Therefore, the sales contract of this case shall be revoked as a fraudulent act, and the defendant shall be obligated to implement the procedure for cancellation registration of transfer of ownership completed with respect to each real estate of this case to KimB.

3. Judgment on the defendant's assertion

A. The defendant concluded a sales contract on the condition that KimB acquires all the obligations related to each of the instant real estate, and thus, the instant sales contract does not constitute a fraudulent act, and the defendant asserts that it is bona fide.

The statements in No. 1, No. 2-1 through 5, No. 3, 4, and No. 5-1 through 6 are hard to see that the defendant is bona fide, and there is no other evidence to acknowledge them. Rather, according to the statements in No. 8-1, No. 2, No. 2-4, and No. 5, respectively, the defendant's money paid to KimB is limited to OB OB, and the defendant is transferred to OB and OB-O No. 114-3, Oct. 31, 201, OB-O No. 113 (O, No. 3 floor) and OB-O on Oct. 31, 2011. Thus, the defendant constitutes a fraudulent act committed as a beneficiary of the contract, and the defendant constitutes a malicious act as a beneficiary of the contract.

B. The defendant, while purchasing each of the instant real estate, acquired the National Agricultural Cooperative Federation's debt on collateral and the obligation to return lease deposit with respect to the instant real estate from KimB, asserting that reinstatement is impossible. However, since the debtor remains changed without cancelling the right to collateral security established prior to the fraudulent act, the above argument by the defendant is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is just in its conclusion, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.