In case where the delinquent taxpayer’s excess of his/her liability deepens by concluding a transfer contract, it constitutes a fraudulent act.

If a delinquent in excess of his/her obligation deepens the excess of his/her obligation due to the transfer of the right to collateral security and collateral security, it constitutes a fraudulent act.

2010Du89291 Revocation, etc. of fraudulent act

Korea

1. The KimA 2. AB 3. AB

October 21, 2014

November 14, 2014

1. The transfer contract concluded on August 3, 2009 between Defendant KimA and NaD with respect to each of the claims listed in the separate sheet 1 and each of the right to collateral security listed in the separate sheet 2 shall be revoked.

2. Defendant KimA shall notify ChoE that the assignment contract concluded between NaD and Defendant KimA has been revoked with respect to the claims described in attached Table 1-C. 1-C.

3. Defendant KimA shall perform the registration procedure for cancellation of the additional registration of the transfer of the right to collateral security listed in the attached Table 2 List 4 to DoD, and Defendant ChoCC shall implement the registration procedure for cancellation of the additional registration of the transfer of the right to collateral security listed in the attached Table 4 to Defendant KimA

4. The Plaintiff:

(a) Defendant KimA is an OOO member;

B. Defendant KimA, and AB shall each OOOB

In addition, with respect to each of the above amounts, 5% interest rate shall be paid from the day after the day of each judgment to the day of full payment.

5. Defendant ChoCC shall transfer to DoD the right to claim dividend payments received in the Chuncheon District Court's territorial branch court's Chuncheon District Court's 2010ta and 5484 real estate auction case, and shall notify the Republic of Korea (competent: cash accounting official other than the revenue and expenditure with the Chuncheon District Court's territorial branch court's jurisdiction) of the above assignment of claims.

6. The plaintiff's remaining claims against the defendants are all dismissed.

5. Of the costs of lawsuit, 1/5 is assessed against the Plaintiff, and the remainder is assessed against the Defendants.

Cheong-gu Office

The disposition Nos. 1, 3, and 5 (Provided, That the claim for dividend payment was sought to be transferred to the plaintiff) and the defendant KimA shall notify each of the relevant debtors with respect to each claim listed in the separate sheet Nos. 1, 3, and 5 (the claim for dividend payment was revoked. The defendant KimA shall pay the plaintiff the amount of money calculated at the rate of 20% per annum from the day following the day when the decision became final to the day of full payment. The defendant KimA shall pay the plaintiff the amount of money calculated at the rate of 20% per annum per annum from the day when the decision became final to the day of full payment.

1. Basic facts

A. Plaintiff’s taxation claim

1) The director of the Seoul Regional Tax Office, the Plaintiff-affiliated Seoul Regional Tax Office, conducted a tax investigation on global income tax, etc. reverted from May 14, 2009 to September 16, 2009 to 2008, with respect to NaD and NaD were working as the representative director (hereinafter “FFF”).

2) The director of the Seoul Regional Tax Office, according to the results of the above tax investigation, notified AO of the total amount of OOs, including global income tax, transfer income tax, and value added tax, among October 2009 and December 2009.

3) In addition, the director of the Seoul Regional Tax Office notified FF of the total amount of corporate tax and value added tax to the FF, and the FF did not pay the FF’s notified amount by the due date, and on November 2009, NaD owned 76% (95% in 2004) out of the FF’s shares of FF, and designated NaD as the secondary taxpayer for the FF’s tax in arrears.

4) The FF did not pay each tax obligation imposed as above, and the FF’s rectification for FF calculated by taking into account the amount partially revoked or reduced by the decision of the Tax Tribunal’s early January 17, 201, following the revision of FF, which was the total amount of OO of the tax amount, and accordingly, when calculating the amount of the secondary taxpayer of DD’s tax amount, it is an OOO of the tax amount as shown in attached Table 6.

(b) Assignment of claims and the transfer of collateral security to NaD against Defendant KimA;

1) As described below, NaD has each obligation on the debtor stated in "amount of loans" as stated below, and NaD has completed additional registration of the transfer of right to collateral on August 3, 2009 on each date stated in "the date of registration cancellation" as to each real estate stated in "the date of registration cancellation" as stated in "the date of registration cancellation for each real estate in order to secure each obligation of the above loans."

(c) transfer to Defendant AB and CC;

1) On April 22, 2010, Defendant KimA transferred each of the loan claims to the Defendant AB against KimG, 0H, III, and J, and completed the supplementary registration of the transfer of collateral security based on the transfer of credit on each of the date stated in the [Attachment 1] [Attachment 1] Transfer of Collateral Mortgage (GAAB].

2) On April 22, 2010, Defendant KimA transferred ES and loan claims against KR to Defendant ChoD, and completed the supplementary registration of the transfer of collateral security on July 19, 2010 with respect to the real estate listed in the No. 5 of the above [Attachment 1], and with respect to the real estate listed in the No. 5 of the above [Attachment 1], Defendant KimA completed the supplementary registration of the transfer of collateral security based on the transfer of each finalized claim.

[Attachment 1] Omitted

D. Meanwhile, in the process of a voluntary auction commenced by the O district court’s O branch’s O branch’s O branch’s 2010 OOO for the real estate set forth in the above [Attachment 1] Nos. 9, the distribution schedule was formulated that Defendant ChoCC received dividends from OOOOO as a collateral security. However, the Plaintiff filed an application with OO branch’s OO branch’s 201KahapO for a provisional disposition prohibiting the payment of the dividend payment claim with respect to the dividend payment claim of Defendant ChoCC, and received a decision of acceptance on October 11, 2011, and did not pay dividends to Defendant ChoCC.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 8, 10, 11 (including each number), Eul evidence 11;

15 Each entry of evidence (including paper numbers), the purport of the whole pleadings, and the purport of the whole pleadings.

2. Determination on the defense prior to the merits

(a) The exclusion period map and defense;

The Defendants asserted that the instant lawsuit brought on August 30, 2010, which was filed on April 30, 2010 after the lapse of one year from the date of the attachment, was unlawful, because the Plaintiff conducted a tax investigation and sufficiently examined the current status of NaD’s properties, and seized NaD’s properties around August 27, 2009.

According to the statements in Eul evidence Nos. 28 and 29, although the plaintiff seized the secured debt of the right to collateral security, the right to collateral security of the right to collateral security on the land of OO-Gu No. 102, 236-1, 236-1, 00 O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O.

B. Non-existent defense of the lawsuit

The defendants asserted that the plaintiff has no interest in the lawsuit seeking revocation of the fraudulent act and restitution since the registration of the right to collateral security had already been cancelled except for part of the plaintiff's seeking restitution of the original property due to restitution.

On the other hand, as alleged by the Defendants, the registration of establishment of a neighboring real estate on each of the above real estate may be ordered to return the real estate by the method of compensation for value. Thus, such circumstance alone alone cannot be said to have no benefit in the lawsuit seeking revocation

3. Judgment on the merits

(a)the existence of preserved claims;

Although it is required that a claim that can be protected by the obligee’s right of revocation has arisen prior to the commission of an act that could be viewed as a fraudulent act in principle, there is a high probability that at the time of the fraudulent act, there has already been legal relations that would be the basis of the establishment of the claim, and that the claim would be established in the near future, and where a claim has been created in the near future because the probability is realized in the near future, the claim may also become a preserved claim of the obligee’s right of revocation. This legal principle applies to a claim for taxation. Meanwhile, pursuant to Article 21(1)1, 4, and 7 of the former Framework Act on National Taxes (amended by Act No. 12162, Jan. 1, 2014), when the taxable period of income tax, corporate tax, and value-added tax expires, the comprehensive real estate holding tax liability shall be established

In addition, even if the tax payment period for NaD arrives after the transfer contract of this case, global income tax, transfer income tax, value-added tax, corporate tax, etc. imposed on NaD was incurred in 2008 from 2004 to 2008, which is the transfer contract of this case. As such, the basic legal relationship of each tax generation has already occurred at the time of the transfer contract of this case, and as mentioned later, NaD had a high probability as to the establishment of each of the above tax claims based on the above legal relations in the near future in light of the fact that NaD was in insolvent at the time of the transfer contract of this case, as well as the fact that the possibility was realized in the near future, and the tax claim of this case was established. Thus, the plaintiff's tax claim of this case can be the preserved claim of NaD's right of revocation.

(b) Debt excess status;

DD is recognized as having been in excess of the obligation (OOO) in excess of the positive property (OOO) as examined below at the time of the instant transfer contract.

(i)affirmative property;

(A) credit held by NaD;

An insolvent as a requirement for revocation of a fraudulent act means that there is no debtor's financial ability to repay. In particular, in a case where it is impossible to expect voluntary repayment, repayment through compulsory execution should be taken into account. Thus, in calculating the debtor's active property, any property that is not substantially valuable and that cannot serve as a joint security for claims, barring any other special circumstances, should be excluded. In particular, if such property is a claim, it should be included in active property only where it is recognized by reasonably determining whether it is certain to easily receive payment (see, e.g., Supreme Court Decision 2001DaOOO, Oct. 12, 2001).

In light of the above legal principles, claims secured by the repayment of collateral security or provisional registration can be easily repaid and can be included in active property. However, it is reasonable to view that it is difficult to actually receive repayment in cases where the right to collateral security or provisional registration established for the right to collateral security is transferred or cancelled, or where the right to collateral security is restricted due to senior collateral security. Therefore, it is difficult to include in active property.

In full view of the evidence mentioned above and the purport of the entire arguments in Gap evidence Nos. 4, 9, 15, and 17 (including each number) as a whole, NaD held a loan claim as shown in the separate sheet No. 5 at the time of the instant transfer contract. However, NaD assessed the amount excluding the portion secured by senior rights among them as the amount possible to secure the claim, and assessed that there is no property to secure the claim, or where collateral security or provisional registration is transferred or cancelled, it is deemed that it is not easy to secure the claim, and thus, it is deemed that there is property value among the claims listed in the separate sheet No. 7 as stated in the same list, the sum of the amount recorded in the column

Meanwhile, according to the statements in Eul evidence Nos. 3, 4, 7, and 8, the head of the OO office filed a lawsuit against Mad's claim against NaD's KimL, OO of a promissory note gold claim against NaD's Mad's Mad's Mad's Mad's Mad's Mad' Mad' 'OO of a claim against Nad', and 'OO of a promissory note gold claim against Do's Mad' Mad' Mad's Mad's Mad's Mad's Mad', but in full view of the overall purport of each of the above evidence, it can be recognized that Nad's Mad's Mad's Mad's claim against Mad's Mad's Mad's Mad's Mad's Mad's Mad's 's Mad's 's.

(b) Financial property: OOO (each entry contained in evidence 4 through 16 of subparagraphs A).

C) Real estate

갑 제4호증의 2, 3의 각 기재 및 변론 전체의 취지에 의하면, 나DD은 이 사건 양도계약 무렵 OO시 OO구 OO동 1356 PPP 110동 702호에 관하여 소유권이전청구권가등기를 보유하고 있었는데, 위 아파트의 시가가 약 OOOO원인 사실, 위 아파트에 관하여 주식회사 QQ은행 명의의 채권최고액 OOOO원인 근저당권설정등기가 마쳐져 있었고 주식회사 QQ은행의 신청으로 2008. 12. 10.경 임의경매절차가 개시되었는데, 주식회사 QQ은행이 OOOO원을 채권금액으로 신고한 사실을 인정할 수 있는바, 이에 따르면 위 부동산 시가 OOOO원에서 위 채권금 OOOO원을 공제한 OOOO원이 적극재산의 범위에 포함된다 할 것이다.

(D) the shares held by NaD;

B. At the time of the instant transfer contract, DD held 49,000 shares of FF (OO's par value per 1 unit), 5,000 shares of RR (OO's shares per 1 unit), 82,300 shares of SS Urban Improvement Project Group (OO's shares per 1 unit), or 82,300 shares of SS Urban Improvement Project Group (OO's shares per 1 unit) without any dispute between the parties, or it can be recognized by the purport of the entire pleadings. Therefore, it shall be included in the scope of active property.

(e) Total amount of active properties: OOO

(i) Bonds OO + Bonds OOOOO ＋ Financial Property OOO + Real Estate OOO ＋ Stock OOO + Stock OO)

2) Petty property

As seen earlier, NaD bears the tax liability of approximately KRW 000,000 (including additional tax at the time of the transfer of this case) (i.e., KRW 00 + KRW 000 of the individual delinquent tax + KRW 000). According to each of the evidence Nos. 4-19, and Nos. 1 and 2-2 (including each number), NaD may recognize the fact that NaD bears the liabilities of KRW 19, 19, 1, and 2 of the evidence No. 4-2 (including each number) to the Federation of TT Cooperatives; (ii) the liabilities of KRW 00,00,00 for the principal to Defendant AB; and (iii) the total amount of the small property is KRW 0,000,000,000.

(c) The intention to commit fraudulent acts and to injure himself;

1) Recognition of fraudulent act and intent to commit suicide

NaD had been in excess of its obligation as above but deepened the excess of obligation by concluding the instant transfer contract with Defendant KimA and transferring the right to collateral security and the right to collateral security. Barring any special circumstance, the instant transfer contract constitutes a fraudulent act by NaD’s obligee, and NaD recognized the risk that the joint security becomes more deficient due to the instant transfer contract, making it difficult for the obligee to receive repayment. Therefore, it is presumed that NaD and the Defendant KimA, the beneficiary, the subsequent purchaser, the Defendant AB, andCC’s bad faith is also presumed.

2) Judgment on the defendant's assertion

The defendants asserted that, as a creditor who lent the money to DoD, they transferred the claims to the loan obligor and the right to collateral security to secure it, and that, as DoD did not know that it was in excess of the debt, it was bona fide.

In light of the following circumstances, Eul evidence Nos. 21 and 22, which were acknowledged by the overall purport of the statements and arguments, ① there was no particular reference as to the developments leading up to the conclusion of the instant transfer agreement with NaD in the case of defendant KimA, ② although the loan claims and the right to collateral security were transferred to the defendant KimA, despite the fact that the decision to prohibit the disposal of the above right to collateral security was made, the above claim and the right to collateral security was transferred by the defendant KimA. However, if the above registration was confirmed, it would have been possible to recognize the existence of the instant transfer contract. ③ The defendant ChoCC lent OOOB to MaU, and it was difficult to find that the above OB had been transferred from the date of the tax investigation to secure the above loan claims, and there was no reason to acknowledge that the above OB had been transferred from O200 to 200,0000,0000 won to O20,000,0000 won.

(d) Method and scope of restitution; and

As the instant transfer contract constitutes a fraudulent act, the transfer contract concluded on August 3, 2009 between DoD and Defendant KimA with respect to each claim listed in attached Table 1 List 1 and each right to collateral security listed in attached Table 2 shall be revoked as the Plaintiff seeks.

In principle, restitution following the revocation of a fraudulent act shall be based on the return of the object itself, and compensation shall be granted in cases where reinstatement is impossible or is considerably difficult. Furthermore, in cases where a beneficiary participated in the distribution in the auction procedure based on the right to collateral security acquired by a fraudulent act and participated in the distribution, if the dividend is not actually paid, it shall be done by returning the beneficiary’s right to claim the payment of the dividend that he/she acquired to the debtor. Ultimately, the form of demanding the debtor to claim the transfer of the right to claim the payment of dividend and the notification of the transfer of the claim (see, e.g., Supreme Court Decision 2003DaOOOO, Jul. 9, 200

1) The part demanding notification of cancellation of each assignment of claims in the separate sheet No. 1 list

The plaintiff sought revocation of the transfer contract of this case by fraudulent act, and also requested defendant KimA to notify each debtor of the cancellation of the transfer contract of this case by restitution.

As examined below, each of the above claims has been extinguished as the registration of creation of a mortgage and the registration of transfer of a mortgage established to secure the remainder of claims except for the cases of claims listed in the attached Table 1.C. As such, it is impossible to return to DoD each of the claims per se except for the claims listed in the attached Table 1. However, unlike ordinary cases where the transfer of claims constitutes fraudulent act and seeks notification of cancellation of the transfer of claims due to its fraudulent act, in this case, it is possible to achieve its objective by seeking cancellation of additional registration of the transfer of a right to collateral with the transfer of a right to collateral with the transfer of a right to collateral with the transfer of claims. Examining the Plaintiff’s written brief, purport of the claim, and intent to claim restitution stated in the application for modification of the cause of the claim, the Plaintiff’s written statement of the transfer of claims in this case is seeking cancellation of additional registration of the transfer of a right to collateral with the cancellation of the transfer contract in this case, or if the above claims were cancelled, it merely sought cancellation of the transfer of claims with the value of claims impossible.

2) Part of the assignment contract indicated in attached Table 1. D, h, and (i) of the attached Table 1

The Plaintiff sought revocation of a transfer agreement concluded between DoD and Defendant KimA on each loan claim against NaDD Co., Ltd. III, KimV, and BaW. The Plaintiff withdrawn all claims for compensation of the value of OOOOOOOOOOOOOOOOOOOOOOOO on the ground that the above [Attachment 1] [Attachment 6] claims for restitution for the performance of the procedure for cancellation of registration of cancellation of registration of transfer of right to collateral security, KimV, and WhiteW were cancelled on the ground that the right to collateral security on the real estate mentioned in 11/12 [Attachment 1] is cancelled, as seen in the above 1], on the ground that the restitution on this part is not determined.

3) The revocation part of each assignment contract listed in attached Table 1.A, B, and E (attached Table 2 Schedule 1, 3, 6, 7, and 3 Schedule 1, 3, 5, and 6)

In light of the above facts and evidence evidence Nos. 13 and 14 (including paper numbers), since additional registration of transfer of a right to collateral under the name of DoD KimG, 0H and HaB based on the assignment of claims to J may be cancelled as described above [Attachment 1], this part of the original claim may not be returned." Meanwhile, the purport of seeking compensation is also included in the purport of seeking compensation where the subsequent purchaser is unable to return original claim because it is substantially difficult to do so, and thus, it can be ordered to return the value of the claim immediately without any modification to the purport of the claim (see Supreme Court Decision 9Da0900, Jun. 12, 2001; Supreme Court Decision 99Da0030, Jun. 12, 2001); and

Therefore, Defendant KimA, and AB are obligated to pay to each Plaintiff the total amount of the above claims and damages for delay calculated at the rate of 5% per annum from the day following the day when this judgment became final and conclusive to the day of full payment.

4) Part of the assignment of claims in attached Table 1. C (attached Form 2. 4 and attached Table 4), as shown in attached Table 1.C.

As the assignment of claims under this part of this assignment contract concluded between DD and Defendant KimA and the collateral transfer contract mentioned in attached Table 2. D in attached Table 1.3, Defendant KimA has a duty to restore the original state to its original state, to notify the obligor ChoE that the assignment of claims mentioned in attached Table 1-3. Defendant XX, the subsequent purchaser, has a duty to register cancellation of the additional registration of the transfer of collateral security stated in attached Table 4, and Defendant KimAA, the beneficiary, has a duty to implement the cancellation registration procedure of the additional registration of the transfer of collateral security stated in attached Table 2.4.

5) Attached Table 1-f. The part revoking the assignment of claims as indicated in Attached Table 1-1

In order to secure this part of the claim, the fact that the OCO was distributed to Defendant ChoCC in the course of a voluntary auction on the real estate set forth in No. 9 No. 9 is as seen earlier. As such, Defendant ChoCC has a duty to transfer the above claim for dividend payment to NaD and notify the Republic of Korea that it transferred the above claim (the plaintiff sought to transfer the above claim for dividend payment to the plaintiff, but the claim for dividend payment should be restored to its original state by returning the claim for dividend payment to the debtor as seen earlier).

6) Part 1-g of the cancellation of the assignment of claims in the attached Table 1-g.

The plaintiff is seeking the payment of the OOOO to the defendant KimA as compensation for the value of this part.

In order to secure loan claims against NaY of this part of NaD, as described above [Attachment 1] No. 10], the right to collateral security, which is the maximum debt amount, transferred to Defendant KimA on August 27, 2009 with respect to the forest land No. 90, OO-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O, was cancelled as the above real estate was transferred to a third party for public sale on April 15, 201. Thus, even if the transaction value of the above real estate was established, it is reasonable to deem that the transaction value of the above real estate was equivalent to KRW 300 million.

Therefore, Defendant KimA is obligated to pay to the Plaintiff damages for delay calculated at the rate of 5% per annum under the Civil Act from the day immediately following the day this judgment became final and conclusive to the day of full payment (the Plaintiff is entitled to the annual interest rate of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings. However, the proviso of Article 3(1) of the above Act excludes the application of the main text in the case of a lawsuit for future performance, and the claim for compensation for value in a lawsuit for fraudulent act is seeking future performance and is subject to the proviso of the above Article, and thus, the interest rate for delay should be calculated at the statutory interest rate).

E. Sub-decision

Therefore, the transfer contract concluded on August 3, 2009 with respect to each of the claims listed in the annexed Table 1 List 1 and each of the claims listed in the annexed Table 1 List 2 between Defendant KimA and DoD on August 3, 2009 shall be revoked by fraudulent act, and the restoration to the original state; ② Defendant KimA notified that the transfer contract for the claims listed in the annexed Table 1-C. 1-3; ③ Defendant KimA is revoked by the supplementary registration for the transfer of the right to collateral stated in the annexed Table 2 List 4; ③ Defendant ChoA has the obligation to implement the cancellation registration procedure for the transfer of the right to collateral security listed in the annexed Table 4; ④ Plaintiff, Defendant KimA, Defendant KimAA, and ABB paid to each of these claims at the rate of 5% per annum for delay calculated by the date following each judgment became final and conclusive to the date of full payment; ⑤ Defendant ChoD shall transfer the dividend payment claim of the dividends to OO 2010 in the jurisdiction of the Republic of Korea.

4. Conclusion

The plaintiff's claim against the defendants is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.