Infringement of claims by a third party constitutes a tort against the plaintiff.

It is reasonable to deem that the debtor actively conspireds with the act of reducing the debtor's name or used unlawful means contrary to the social norms with the intent to interfere with the exercise of claims.

2016 Doz. 102930

Korea

The AA et al.

X. 30.00

June 20, 2018

1. The Defendants jointly pay to the Plaintiff the amount calculated from August 10, 2016 to the Plaintiff at the rate of 15% per annum from August 9, 2016 to the day of full payment. The Defendants jointly pay to the Plaintiff the amount calculated from August 9, 2016 to the day of full payment.

2. The costs of lawsuit are assessed against the Defendants.

3. Paragraph 1 can be provisionally executed.

주문과 같다(원고는, 피고 서AA에 대하여는 부당이득반환청구와 손해배상청구를 선택적으로 병합하였고, 피고 주식회사 BB에 대하여는 손해배상청구와 아래에서 보는 것과 같은 사해행위취소 및 원상회복청구를 선택적으로 병합하였다). 또는 선택적으로, 2,XXX,XXX,XXX원의 범위 내에서, 피고 서AA와 정CC 사이에 2010. 11.경 OO X구 XX동 9XX-X 대 3XXX.X㎡에 관하여 체결된 명의신탁계약, 피고 서AA와 주식회사 DD신탁 사이에 2012. XX. XX. 별지1 목록 기재 각 부동산에 관하여 체결된신탁계약, 주식회사 DD신탁과 피고 주식회사 BB(이하 '피고 회사'라 한다) 사이에 2013. 8. X. 별지2 목록 기재 각 부동산에 관하여 체결된 매매계약을 각 취소하고, 피고들은 공동하여 원고에게 2,XXX,XXX,XXX원 및 이에 대하여 이 사건 소장 부본 송달 다음날부터 다 갚는 날까지 연 15%의 비율로 계산한 돈을 지급하라.

1. Facts of recognition;

A. Tax claims against the Plaintiff (CC)

1) EE Co., Ltd. (hereinafter referred to as “EE”) was a corporation established for the purpose of steel products, steel products, and steel products manufacturing and sales business, and was ordered to be dissolved in X. X. of 2014. StCC is a person who served as a representative director of EE and resigned from x. of 2008. XX.

2) From around 2008 to the same month XX. from around 2008 to from around 2000 to the same month, JeongCC was charged with embezzlement of the aggregate of its corporate funds 3X, capital gains, capital gains, capital gains, capital gains, and capital gains, in collusion with the LF, and embezzlement of the sum of its corporate funds 3X, capital gains, capital gains, capital gains, and capital gains (hereinafter referred to as “the instant embezzlement”) from around 2008 to the shareholders’ dividends under the pretext of shareholders’ dividends. The above facts charged were found guilty, and the judgment of the appellate court rendered a community service order for the period of suspension of execution, X 200 hours, and capital gains, from around 2008 to around 2009, and then distributed them to the name account of HaH, etc.

3) On September 1, 2013, the head of the OO head of the Plaintiff’s office deemed the instant embezzlement as a bonus income from the EE’s regularCC, and imposed a global income tax 1, an economic-level, an economic-level, an economic-level, and an economic-level member on the PP. 209. On September 1, 2013, the head of the II head of the tax office, under the Plaintiff’s control, imposed a gift tax 500 on the SPF, an economic-level, an economic-level, and an economic-level member.

4) As of January 21, 2018, on the basis of the failure to pay global income tax, gift tax, and global income tax pursuant to each of the dispositions listed in paragraph (3) above, JeongCC is delinquent in taxing global income tax 2, trade-related, trade-level, trade-level, trade-level, trade-level, gift

B. The use of the embezzlement of this case and the conclusion of the contract to sell the embezzlement of this case

1) 정CC은 이 사건 횡령금 중 일부를 OO X구 XX동 OOO 대 XXX.X㎡(이하 'OOO번지 토지'라고 한다)의 지분권을 매수하고 그 지상에 건물을 신축하는데 사용하기로 하였다.

2) On September 2010, 2010, Jung-CC entered into a mutual agreement with the JusticeJ on a set of KRW 4,00,00,00 for the purchase price of equity interests as set forth in the above Paragraph 1, with the charge of KRW 4,00,00,00 for the establishment of a new building and to distribute profits after construction of a new building. However, the above KRW 4,00,00,000, which is to be borne by the JusticeJ, concluded a mutual agreement with this Justice to set up a loan from Jung-CC.

3) On November 4, 2010, Defendant SAAA (spouse of J) and Kim KK (the spouse of JJ) concluded a sales contract with respect to the 3th class X/7th class X out of the land located in the OOO with LL at KRW 8,00,00 and completed the registration of ownership transfer on the ground of the above sales contract with respect to the above shares (the above shares in 1th class X/7th class-X) on November 9, 2010.

4) OOO번지 토지는 2011. 12. 26. OO X구 XX동 OOO 대 4XXX.X㎡, OO X구 XX동 9XX-X 대 3XXX.X㎡(이하 9XX-X 토지를 '이 사건 토지'라 한다)로 각 분할되었고, 피고 서AA와 김KK은 이 사건 토지의 각 1/2 지분권자가 되었다. 한편, 2012. XX. XX. 이 사건 토지 지상에 2개동, 1X층으로 구성된 'MM'(이하 '이 사건 오피스텔'이라 한다)가 신축되었다.

C. Registration of transfer of ownership by the defendant company

1) On the same day, Defendant Western and Kim K completed registration of the preservation of ownership for each of the headings of the instant officetels on October 2012, 2012, and completed the registration of the transfer of ownership in the instant officetels (hereinafter referred to as “DD”) on the grounds of the instant officetel’s trust agreement (hereinafter referred to as “instant trust agreement”).

2) On August 29, 2013, DD completed the registration of transfer of ownership with respect to each real estate listed in the separate sheet No. 2, among the instant officetels (hereinafter referred to as “each aggregate building of this case”) on August 29, 2013, on the ground of a X.O.S. sales contract (hereinafter referred to as “instant sales contract”).

(d) Current financial status of staticCC;

The Court has almostn't left in its own name the assets worth providing the creditors' joint collateral.

[Ground of recognition] Facts without dispute, Gap 1, 2, 3, 4, 5, 7, 8, 10, 12, 16, 17, 18, 19, 22, and 23 each of the statements, arguments, and the purport of the whole of the arguments

2. The plaintiff's assertion

A. Claim against Defendant A (Selective Claim)

1) Claim for subrogation by obligee

A) Around November 2010, JungCC entered into a title trust agreement with Defendant Seo-A with respect to the right to share of the above share ownership, and provided Defendant Seo-A with KRW 4,00,000 for the purchase price of the above share ownership.

B) Meanwhile, as the so-called contract title trust, Defendant Western, the title trustee, bears the obligation to return unjust enrichment amounting to KRW 4,00,000 against the PCC, the title truster.

C) Since the Plaintiff has a tax claim 2, an occupation-based, an occupation-based, an occupation-based, and an occupation-based, the Plaintiff sought restitution of unjust enrichment within the scope of the secured claim 2, an occupation-based, an occupation-based, and an occupation-based, and an occupation-based.

2) Claim for damages

Defendant Western acquired the ownership of the instant land and the instant officetel in its own name by using the property (the instant embezzlement) under the name of PCC for the purpose of evading the Plaintiff’s tax liability against the Plaintiff, and thereby making it difficult for the Plaintiff to enforce the tax claim. This constitutes an infringement on the Plaintiff’s tax claim, thereby making it difficult for the Plaintiff to enforce the tax claim. Accordingly, the Plaintiff’s claim for damages due to tort within the scope of the tax claim 2, the institution for public interest, the institution for public interest, and the

B. Claim against the Defendant Company (Optional Claim)

1) Revocation of fraudulent act and claim for restitution

A) FullCC bears a tax obligation against the Plaintiff. However, regularCC concluded a title trust agreement with Defendant Western on the right to share shares in the land, and regularCC was insolvent at the time of concluding a title trust agreement, and thus, the said title trust agreement constitutes a fraudulent act.

B) As seen in the above Section 2. A. (1), Defendant Western bears the obligation to return unjust enrichment of KRW 4,00,000 to PCC. However, Defendant Western completed the registration of transfer of ownership to D on the ground of the instant trust agreement with respect to each of the units of the instant officetels on August 29, 2012, and DD completed the registration of transfer of ownership with respect to each of the instant condominiums on August 29, 2013. Defendant Western was insolvent at the time when the instant trust agreement was concluded. Accordingly, both the instant trust agreement and the instant sales agreement constitute fraudulent act.

C) The Plaintiff seeks the revocation of a title trust agreement concluded between PCC and Defendant SAA with respect to the tax claim against PCC as the preserved claim. The Plaintiff shall exercise the right of revocation (the preserved claim: the right of revocation held by PCC against Defendant SA) by subrogation against the instant trust agreement and the instant sales contract.

D) Therefore, the Plaintiff claims restitution within the scope of the tax claim 2, the relevant party accounting, the relevant party accounting, and the relevant party accounting group.

2) Claim for damages

The Defendant Company completed the registration of ownership transfer of each of the instant condominiums with Defendant A, with the aim of evading the Plaintiff’s tax liability against the Plaintiff, and thereby making it difficult for the Plaintiff to enforce the tax claim. Such an act committed by the Defendant Company constitutes a joint tort against the Plaintiff, thereby infringing the Plaintiff’s tax claim, and thus constitutes a joint tort against the Plaintiff, the Plaintiff shall file a claim for tort damages within the scope of tax claim 2, capital gains, capital gains

3. Determination as to the claim against Defendant Western

(a) Occurrence of preserved claims;

The fact that the plaintiff has a tax claim 2, an occupation-based, an occupation-based, and an occupation-based member against the PCC is as seen earlier.

(b) Insolvent and non-exercise of rights of regularCC;

As seen earlier, the Court did not exercise the right to claim a return of unjust enrichment against the Defendant Western until the closing date of the instant argument.

(c)the existence of subrogation claims;

1) According to Article 4(1) and (2) of the Real Estate Real Name Act, where a title truster and a title trustee entered into a contract title trust agreement with the owner who was unaware of the fact that a title trust agreement was concluded, and the title trustee entered into a contract with the owner who was unaware of the fact that the title trustee was the party to the contract, and the registration of ownership transfer of the relevant real estate was completed pursuant to such contract, the title trustee, notwithstanding the invalidity of the title trust agreement between the title truster and the title trustee, shall obtain the full ownership of the relevant real estate, but, on the other hand, the title trustee bears the duty to return unjust enrichment equivalent to purchase funds provided from the title truster (see, e.g., Supreme Court Decision 2002Da66922, Jan. 28, 2005). Meanwhile, if a title trust agreement constitutes a three-party registered title trust or a contract title trust, the distinction between the parties to the contract becomes final and conclusive. Thus, if the title truster agreed to purchase the real estate under the name of another person, such agreement constitutes a title trust agreement.

2) In the instant case in light of the foregoing legal doctrine, the following facts are as follows: (a) Defendant Western and KimK purchased a 3th class-X-X share in the land located in the OOO on November 4, 2010 from LL; (b) Defendant Western completed the registration of ownership transfer for the 1th class-2/7th class-3 share in the land located in the OOOO on November 9, 2010; and (c) the said share purchase price, which was acquired by Defendant Western, provided and prepared for 4, 00,000 won, which is part of the instant embezzlement, to Defendant Western; and (d) according to the entry in Section A14, it can be acknowledged that it entered into an agreement with Defendant Western on the title trust agreement with respect to the share in the land to be acquired by Defendant Western on November 9, 2010.

In full view of the above facts and circumstances, the title trust entered into between PCC and Defendant PA constitutes a so-called contract title trust. Notwithstanding the invalidity of the title trust agreement between PCC and Defendant PA, the registration of ownership transfer under the name of PCC was completed, and Defendant PA acquired full ownership of the ownership of the land in the name of POO. As such, Defendant POA is obligated to return unjust enrichment amounting to KRW 4,00,000,000 paid to POA (as to this, Defendant POA imposed gift tax on Defendant POA on the said amount of KRW 4,00,00,000, the imposition of gift tax on the said amount of KRW 4,00,00,000, on the ground that the Plaintiff did not have a claim for return of unjust enrichment against Defendant POA. However, the mere fact that the Plaintiff imposed gift tax on Defendant POA cannot be deemed as the amount paid by POA due to donations made by POA to Defendant PO.

D. Sub-committee

Defendant Western is obligated to pay to the Plaintiff the unjust enrichment 2, capital gains, capital gains, capital gains, capital gains, and damages for delay (the Plaintiff is entitled to the Plaintiff’s selective exercise of the claim for restitution of unjust enrichment and the claim for restitution of unjust enrichment, on the grounds that the Plaintiff’s claim for restitution of unjust enrichment is reasonable, and no separate determination shall be made on

4. Determination as to the claim against the defendant company

(a) Relevant legal principles;

Generally, the infringement of a claim by a third party may constitute a tort, but it does not always mean that the infringement of a claim by a third party does not always constitute a tort, and it should be determined by specifically examining whether the infringement of a claim by the third party is established in accordance with the form of the infringement of a claim. If the third party's act of reducing the debtor's liability property makes it impossible or difficult for the creditor to execute the claim or satisfy the claim, it may be deemed that the infringement of a claim constitutes a tort against the creditor. However, the mere fact that the third party's act is involved in the reduction of the debtor's property is insufficient to say that the third party's act is merely involved in the act of reducing the creditor's property. The intention, negligence, and illegality of the infringement of a claim should be determined by taking into account the contents of the infringing claim, the attitude of the infringement, the intent or the existence of the infringer's intentional act, the need to guarantee the freedom of transaction, the public interest including economic and social policy factors, and the interests between the parties, etc. (see, e.g., Supreme Court Decision 2007Du575.).

B. Determination

In full view of the facts and circumstances as seen earlier, the evidence as seen earlier, Gap 6,9, 11, 13, and 15, and the following facts and circumstances revealed by adding the entire purport of the pleadings, it is reasonable to view that the Defendant Company: (a) was aware of the existence of the Plaintiff, the creditor of the Plaintiff, and the fact that the Plaintiff’s claim was infringed; (b) was paid KRW 4,00,000 from Jung-A Co., Ltd.; (c) acquired the ownership of KRW 1/2 of the instant land and the instant officetels; and (d) the Defendant Company acquired the ownership of KRW 1/2 of the instant land and the instant officetels; and (c) acquired the ownership transfer registration of each instant condominium among the instant officetels newly constructed on the ground of the instant land, the instant embezzlement was practically planned to engage in the act of reducing the amount of the money in question for the Defendants, or used unlawful means contrary to social norms

Therefore, the above acts of the defendant company constitute tort against the plaintiff.

1) After having purchased the right to share of the OO-use land with the JJ and then to newly construct the instant officetel on its ground. The title trust agreement was concluded between Jung-CC and Defendant Seo-A with respect to the right to share of the land in the OO-use land. Despite the fact that the funds for purchase of the said right to share were created by the embezzlement of the instant case (Article 4, 00,000 won, borrowed from Jung-A-A-be financed by Jung-A-be, 4, 00,000 won, and 4, 00,000,000 won, which was borrowed by this J-J-A-bes, there was no fact that Jung-A-be

Furthermore, the Jung-CC has a claim for the return of unjust enrichment equivalent to KRW 4,00,00 for the purchase price to Defendant Seo-A, and Defendant Seo-A owned 1/2 of the instant land and the instant officetel. As such, Jung-CC could exercise its right to the instant land and the instant officetel at any time on the basis of the foregoing claim for return of unjust enrichment, but did not have exercised such right.

2) 현재 피고 회사의 임원 구성을 보면, 대표이사는 김PP, 사내이사는 정QQ, 감사는 주GG이다. 그런데 김PP은 정CC이 실질적으로 지배하는 주식회사 WWW의 사내이사이자 정CC과 이JJ가 OOO번지 토지에 관한 동업약정을 체결할 수 있도록 중개한 사람이고, 정QQ는 정CC의 딸이며, 주GG은 정CC이 EE의 법인자금을 횡령할 당시 차명계좌를 제공한 사람이다. 나아가 피고 회사의 사내이사로 재직하였던 정RR은 정CC의 딸, 주SS는 정CC의 조카, 정HH는 EE의 직원이자 정CC에게 차명계좌를 제공한 사람이다. 한편, 피고 회사의 주주는 피고 서AA와 정RR, 정QQ, 정TT, 정UU, 주식회사 WWW인데, 위 주주들은 모두 정CC의 가족에 해당하거나 정CC이 실질적으로 지배하는 회사이다.

Comprehensively taking account of the above circumstances, it seems that fullCC actually controls the Defendant Company as a substantial manager of the Defendant Company.

3) On August 29, 2013, Defendant Company completed the registration of ownership transfer for each of the instant condominiums on the grounds of the instant sales contract, and no disposal document supporting whether the instant sales contract was actually concluded was submitted in the instant case. Furthermore, even though most of the purchase funds for the instant land and the instant officetels were prepared through the instant embezzlement, there is no evidence to acknowledge that the Plaintiff received compensation from the Defendants who acquired ownership for the instant land and the instant officetel.

4) In a situation where general creditors, including the Plaintiff, etc., are unable to enforce compulsory execution against the company’s responsible property, it is reasonable to deem that the Defendant Company’s acquisition of ownership of the instant land and the instant officetels through the instant embezzlement, or the Defendant Company’s acquisition of ownership of each of the instant condominiums among the instant officetels that made it more difficult for the Plaintiff to enforce the Plaintiff’s claim on the Plaintiff’s regularCC. The Defendant Company’s representative director, as well as WW WW Company’s internal director, was actively involved in the purchase of OOO land using the instant embezzlements. As such, it appears that the Defendant Company knew that the existence of general creditors, including the Plaintiff, etc. at the time of completing the registration of ownership transfer as to each of the instant condominiums, including the Plaintiff, and that its claim may be infringed due to such act.

5) The Plaintiff may be deemed to have an attempt to preserve his/her claim through a lawsuit seeking revocation of the fraudulent act against the Defendant Company. However, the instant trust agreement concluded between the Defendant AA and D on August 2012 is the same issue as the exclusion period [the Plaintiff is acting in subrogation of the obligor’s right of revocation. In this case, the period for filing a lawsuit shall be determined based on the regularCC, which is the obligee of the right that is the object of subrogation, and shall exercise the right of revocation within one year from the date on which he/she becomes aware of the cause for revocation (see Supreme Court Decision 2000Da73049, Dec. 27, 2001)]. However, the sales contract concluded on October 27, 201 between D and the Defendant Company does not exist (see Supreme Court Decision 2000Da73049, Dec. 27, 2001). Therefore, the Plaintiff’s right of revocation cannot be acknowledged, and there is no evidence that the Plaintiff has a monetary claim against the Defendant DD.

C. Determination on the Defendant Company’s defense of extinctive prescription

Although the Plaintiff’s claim for damages expired due to the expiration of the extinctive prescription, the fact that the Defendant Company completed the registration of ownership transfer due to the instant sales contract as of August 29, 2013 regarding each of the instant condominium buildings on August 29, 2013 is identical to the foregoing, and the Plaintiff filed the instant lawsuit on July 28, 2016. As such, even if the Plaintiff was aware of the Defendant Company’s tort on August 1, 2013, the date when the instant sales contract was concluded, it is apparent that the instant lawsuit was filed before the lapse of three years since the Defendant Company’s aforementioned assertion is without merit.

D. Sub-committee

The defendant company is obligated to pay damages to the plaintiff 2, capital gains, capital gains, capital gains, and damages for delay (the plaintiff has been selectively exercised against the defendant company for damages, revocation of fraudulent act, and restitution of the original state. Since the plaintiff's damages claim is well-grounded, it shall not be separately determined on the revocation of fraudulent act and restitution claim).

5. The relationship between the Defendants’ respective obligations

A. Even if a quasi-joint and several liability relationship is an independent obligation arising out of one another’s separate causes, if one of the overlapping parts becomes extinct due to repayment, etc., it can be established if the other party’s obligation is extinguished, and the cause of both obligations, amount of obligations, etc. need not be the same (see, e.g., Supreme Court Decision 2009Da85861, May 27, 2010).

B. In light of the above legal principles, each claim against the Defendants is independent of the separate causes. However, since the Defendant’s act of acquiring ownership of the instant land and the instant officetel and the Defendant Company’s act of acquiring ownership of each of the instant condominium buildings was conducted to evade the obligation of CC, and the Defendant Company’s act of acquiring ownership with respect to each of the instant condominium buildings has decreased on the grounds thereof, it is reasonable to deem that each of the Defendants’ obligations has the same economic purpose. Since each of the Defendants’ obligations overlaps with the cause of each obligation and the scope of responsibility, the Defendants jointly and severally liable relationship. As such, the Defendants jointly and severally liable to pay damages for delay calculated at the annual rate of 15% as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from August 10, 2016 to the date of the occurrence of each claim, as the Plaintiff’s delivery of a copy of the instant complaint to the Plaintiff (the Defendant Seocho-A from August 9, 2016 to the date of full payment).

6. Conclusion

The plaintiff's claim against the defendants is justified, and all of them are accepted, and it is so decided as per Disposition.