Daejeon District Court 2013Kadan210340 ( November 27, 2014)

transactions of real estate owned by a delinquent taxpayer in excess of debt constitutes a fraudulent act.

The sale and purchase of real estate owned by a delinquent taxpayer in excess of his/her obligation constitutes a fraudulent act that reduces the joint security of general creditors of a delinquent taxpayer.

2014Na108681 Revocation of Fraudulent Act

Korea

Gangwon ○

National Flag

July 17, 2015

August 19, 2015

1. Amendment to the judgment of the first instance, including the extension and the request of the changed plaintiff from the trial as follows:

section 3.

A. The sales contract concluded on December 1, 201 with respect to the real estate listed in the separate sheet between the Defendant and Gangwon ○○ shall be revoked within the limit of KRW 61,00,000.

B. The defendant shall pay to the plaintiff 61,00,000 won with 5% interest per annum from the day following the day when this judgment became final and conclusive to the day of full payment.

C. The plaintiff's remaining claims are dismissed.

2. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

On December 1, 2011, the sales contract concluded on December 1, 201 with respect to the real estate listed in the separate sheet (hereinafter “instant real estate”) between the Defendant and Gangwon-do (hereinafter “the instant real estate”). The Defendant performed the procedure for registration of cancellation of ownership transfer registration, which was completed on December 28, 201 by the ○○ District Court ○○○○ registry ○○, which was completed on December 28, 2011, with respect to the instant real estate, with respect to Gangwon-do (the Plaintiff claimed compensation for the value of cancellation of part of the said sales contract and restitution in the first instance trial), and sought restitution of the original property by the cancellation of the said sales contract and restitution to its original state at the

2. Purport of appeal

The judgment of the first instance is modified as follows. The sales contract concluded on December 1, 201 with respect to the instant real estate between the Defendant and Gangwon-do shall be revoked within the limit of KRW 61,00,000. The Defendant shall revoke to the Plaintiff the sales contract within the limit of KRW 61,00,000. The Defendant shall pay to the Plaintiff 5% per annum from the day after the date this judgment became final and conclusive to the

(1) pay the amount of money calculated at the rate of

1. Basic facts

A. The river ○○, a parent of the Defendant, owned by the Defendant on December 1, 201, and the Dong Dong of this case owned by the Defendant on December 1, 201.

The sales contract to sell the purchase price of KRW 211,00,000 to the Defendant (hereinafter referred to as the “instant sales contract”).

On December 28, 2011, the sales contract was concluded, and on December 28, 201, ○○ District Court ○○○○ District Court ○○○ registry ○○ (hereinafter “instant transfer registration”) completed the ownership transfer registration based on the instant sales contract (hereinafter “instant transfer registration”) by December 28, 201, which was received on December 28, 201.

B. The plaintiff's taxation claim as follows (hereinafter referred to as "each taxation claim of this case") against Gangwon ○○

C) have the same;

C. At the time of the instant sales contract, the instant real estate was demoted to the debtor as of July 14, 201, and collected from the debtor.

180,000,000 won, ○ Fire and Marine Insurance Co., Ltd. (hereinafter referred to as “○○ Fire”).

The registration of the establishment of a neighboring mortgage (hereinafter referred to as the "mortgage of this case") was completed.

D. At the time of the instant sales contract, Gangwon-do’s active property is KRW 211,00,000 for the instant real estate; KRW 352,002,00 for ○○○○○-ri, ○○○○-si, ○○○-si, ○○○-si (hereinafter, the land category was changed to a site on July 16, 2012); KRW 352,000 for the instant real estate; KRW 78,916,00 for the instant 957 square meters for the instant building; KRW 957 for the instant real estate

87,336,400 won, and the answer of 954-4 of the same Ri (the land category was changed to miscellaneous land on August 1, 2012), 01㎡ 14,180,000, totaling 873,434,400 won, and 873,434,400 won, excluding each of the tax obligations of this case, the small property of ○○○○ was KRW 150,000,000 for the secured debt of this case against ○○ Fire, and KRW 200,000,000 for loans to ○○ Bank, and KRW 50,000 for the loans to ○○○○, a total of KRW 850,000,000 for the loans to ○○○.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 6 (if any, numbered)

each entry and the purport of the whole pleadings; hereinafter the same shall apply)

2. The plaintiff's assertion

The sales contract of this case concluded with the defendant with the status of excess of debt is a fraudulent act.

shall be subject to a lawsuit, and the defendant shall restore the original state to his original state, which is completed with respect to the real property of this case

There is an obligation to implement the procedure for cancellation registration of transfer registration.

3. Determination

A. Formation of preserved claims

(1) Relevant legal principles

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 can be viewed as a fraudulent act in principle, it is highly probable that at the time of a fraudulent act, there has already been legal relations that serve as the basis of the establishment of a claim, and that the claim should be established in the near future, and where a claim has been created as a result of its realization in the near future, the claim may also become a preserved claim of the obligee’s right of revocation. Furthermore, the highly probable probability that a claim that may be protected by the obligee’s right of revocation has been established shall be determined objectively by taking into account various circumstances, such as the content of the basic legal relations between the obligee and the obligor, the obligor’s financial status and change in its status, the frequency of claims arising under such circumstances, and the degree of common knowledge thereof, etc. (see, e.g., Supreme Court Decision 2011Da76426, Feb. 2

(2) Determination

(A) In light of the aforementioned legal principles, as seen earlier, the date of notifying each of the instant taxation claims and the time limit for payment on December 1, 201, which was the date of the instant sales contract. However, in full view of the overall purport of the arguments in the evidence Nos. 1, 7, and 8, Gangwon-do engaged in the construction business, etc. (hereinafter “instant business”) with the trade name “○○ Industrial Development,” around 2011, and KRW 20,206,590, among each of the instant taxation claims against the Plaintiff ○○, was related to the instant business transaction, and the taxable period was from July 1, 201 to September 30, 201, and the value-added tax was also finalized for the instant business transaction, and thus, it is also related to the instant business transaction.

A taxable period is from October 1, 201 to December 31, 2011. The amount of tax 7,727,080 won is 77,727,080 won (i.e., the amount of tax 78,135,363 won - the input tax amount of KRW 1,352,709 reported by ○○○, + the amount of tax 94,426 won (hereinafter referred to as “○○○○”) related to the transaction with ○○○○ (hereinafter referred to as “○○○○”) out of the output tax amount of KRW 1,352,70,000, and the amount of tax is 69,511,363 won, which is the basis of taxation, and a new construction contract between ○○ and ○○ factory, which is the basis of taxation, was concluded around October 30, 201, which is the date of completion of the said construction, and the fact that ○○○○ was the transferor.

(B) According to the above facts, at least 20,206,590 won of value-added tax for 2 years 201, and 68,158,654 won of value-added tax for 2 years 2011 (in relation to the transaction with ○○○○○○, input tax amounting to 69,511,363 won - input tax amounting to 1,352,709 won), and 88,564,054 won of capital gains tax for 2011 was already established at the time of the instant sales contract, and there was a high probability that the tax liability was established at the time of the instant sales contract or the legal relationship was established in the near future, and that the claim was established in the near future. Therefore, the above total amount of KRW 88,564,505 won and the creditor’s right of revocation should be preserved.

(C) Furthermore, the Plaintiff asserted that the total amount of value-added tax of KRW 77,727,080, which became final and conclusive in February 201, becomes a preserved claim for obligee’s right of revocation. However, according to the aforementioned evidence, it is found that each of the above transactions was conducted prior to the instant sales contract, and there is insufficient evidence to acknowledge the fact that each of the above transactions was conducted prior to the instant sales contract, and there is no other evidence to prove it. Thus, it cannot be deemed that there was a legal relationship which has already been established or is the basis for its establishment at the time of the instant sales contract, and as a penalty tax of KRW 94,426 is established after the instant sales contract, there is no ground for the Plaintiff’s assertion exceeding the amount recognized as a preserved claim in the above sub-paragraph (b).

(D) In addition, the Plaintiff asserts that the amount of tax on business income accrued from January 1, 201 to November 30, 201 as global income tax amounting to KRW 95,916,920 is subject to the obligee’s right of revocation. Thus, according to the aforementioned evidence, it is acknowledged that the amount of tax on global income tax of KRW 95,916,920 in 201 was imposed on the business income accrued from the instant business from January 1, 201 to December 31, 201. The Plaintiff’s assertion that the amount of tax on business income accrued from January 1, 2011 to November 30, 201 as of the day immediately before the instant sales contract was concluded is difficult to specify only the above amount of tax in light of the aforementioned circumstances, etc., and thus, the Plaintiff’s assertion in this part cannot be accepted.

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

(1) Relevant legal principles

In determining whether a debtor's insolvency, which is the requirement to exercise the right of revocation, is the subject of a fraudulent act, it is necessary in principle that such a fraudulent act was committed prior to the occurrence of an act that can be seen as a fraudulent act. However, there is a high probability as to the establishment of a legal relationship which is the basis of the establishment of an obligation at the time of such fraudulent act, and that the obligation is established in the near future. In fact, it is probable in the near future, and if the obligation is established because it is realized in the near future, the obligation should also be included in the debtor's small property (see, e.g., Supreme Court Decision 2010Da68084, Jan. 13, 201).And, "C" in this context means that the debtor's intention does not harm the creditor in doing a legal act, but it is sufficient to recognize it as a simple perception. In conclusion, it is difficult for the creditor to receive the obligation due to a lack of common security, and such recognition is not sufficient to be declared in a relationship with the general creditor (see, 2006.36.

(2) Determination

On the other hand, among each taxation claim of this case, tax claims equivalent to KRW 8,564,054 in total indicated in the above 3.A. (2) (b) of the above 3.A. (2) of the taxation claims of this case shall be included in Gangwon-do's small property. The total amount of 873,434,40 won in total at the time of the sales contract of this case is 850,000 won in total, and as seen earlier, the total amount of 850,000 won in addition to each of the tax claims of this case is as mentioned above. Thus, the Gangwon-do's total amount of 938,564,054 won in total as at the time of the sales contract of this case's 88,564,000 won in +850,000 won in total as 873,434,400 won in total as at the time of the sales contract of this case's case's case's small creditor's obligation was difficult to enter into a sales contract of this case's general creditor.

C. Determination on the defendant's good faith defense

(1) At the time of the instant sales contract, the Defendant did not know about the property status, such as the obligation of Gangnam○○○ at the time of the instant sales contract, and purchased the instant real estate from Gangnam○○○ KRW 210 million, and acquired KRW 180 million, totaling the obligation of Gangnam○○ with respect to the instant real estate (i.e., KRW 150 million + the obligation of collateral security against the instant right to ○○ Fire + KRW 30 million to return the lease deposit against the lessee Kim○○, and paid KRW 20 million to Gangnam○ on the date of the instant contract, and the remainder KRW 10 million shall be offset by the Defendant’s loan obligation of KRW 10 million, which was lent to Gangnam○○ on July 14, 201.

The sales amount was paid in full, and thereafter, received monthly taxes directly from the above Kim ○○, and this case

Interest on the secured obligation of the right to collateral security shall also be borne, and a new appointment shall be made on the instant real property

Since she entered into a lease contract with a borrower ○, she himself/herself has entered into the instant sales contract.

It argues that this fraudulent act is a bona fide beneficiary who did not know that it is a fraudulent act.

(2) According to the overall purport of each statement and pleading evidence Nos. 1, 2 and 5, the Defendant paid KRW 638,750,000,000 on July 14, 201, and KRW 20,000 on December 1, 2011, respectively, to ○○○○○’s account. The Defendant received monthly payment of KRW 500,000 from January 28, 2012, to December 27, 2012, KRW 301,00,000,000,000 from January 25, 2012 to July 25, 2012, KRW 301,000,000,000,000,000,000 from July 20, 201, respectively, to ○○ Fire for the remainder of KRW 1,301,013,00,000,00.

(3) However, considering the overall purport of Gap evidence Nos. 3, Eul evidence Nos. 1 and 2 and all of the arguments

The following circumstances are: ① The Defendant’s purchase price 2 of the instant sales contract to Gangwon ○○.

Of the costs of KRW 10 million, the amount actually paid is only KRW 20 million paid on the date of the contract; 2.

On July 14, 2011, the defendant set off a loan claim amounting to KRW 10 million deposited into the account of Gangnam ○○ on July 14, 201.

The law asserts that the payment of KRW 11 million was made, but the above amount of KRW 10 million was paid.

In addition, there is no evidence to acknowledge that the Defendant was the money lent to ○○○, and the contract of this case between the Defendant and the Kang○○○ is succeeded or taken over by the Defendant among the amounts of KRW 191 million.

The remainder of the debt 180 million won, other than the debt 110 million won, is to be paid on February 17, 2012, and it is not consistent with the aforementioned argument because it is stated to the effect that "the registration of ownership transfer is completed on the date of the remainder payment." Unlike the above sales contract, Gangnam ○ completed the registration of ownership transfer to the Defendant on December 28, 201, and (3) the above evidence alone at the time of the sales contract of this case.

○○○ held the claim to return the lease deposit amounting to KRW 30 million on the instant real property.

C. It is insufficient to recognize that the Defendant had opposing power and preferential right to payment under the Housing Lease Protection Act, and there is no other evidence to acknowledge it, and ④ In light of the fact that the Defendant and Gangwon ○○ is female, the fact and the evidence stated in the above paragraph (2) alone are insufficient to recognize that the Defendant was unaware of the fact that he would harm the general creditors of Gangwon ○○ at the time of concluding the instant sales contract, and there is no other evidence to support it, the Defendant’s above assertion cannot be accepted.

(d) Scope of revocation of fraudulent act and restoration to original state;

Therefore, the sales contract of this case should be revoked as it constitutes a fraudulent act, and the defendant bears the duty of restitution following the revocation of fraudulent act.

(1) Relevant legal principles

In a case where a legal act regarding a certain real estate constitutes a fraudulent act, in principle, the cancellation of the fraudulent act and the cancellation of ownership transfer registration must be ordered. However, in a case where the restoration of the real estate itself is ordered by revocation of a fraudulent act and order of restoration of the part which was not originally secured by general creditors, it would go against the fairness, it is reasonable to cancel the fraudulent act within the extent of the balance remaining after deducting the value of the part which was not jointly secured from the value of such real estate from the value of the real estate. It is reasonable to issue an order for compensation for damages within the said limit (see, e.g., Supreme Court Decision 2007Da2819, Feb. 25, 2010). If a real estate mortgaged as collateral is transferred to a fraudulent act, it shall be established only within the extent of the balance remaining after deducting the amount of debt guaranteed by the mortgage at the time of conclusion of pleadings at the fact-finding court, even if the mortgage registration was cancelled by payment after a fraudulent act, etc., the remaining value of the real estate should be deducted from the value of the secured property at the time of conclusion.

(2) Determination

In light of the above legal principles, since the market price of the instant real estate at the time of the instant sales contract was 200 million won or more, and the amount of the secured debt of the instant real estate established on the instant real estate was 150 million won or more as seen earlier. Considering the purport of the evidence No. 2, the amount of the secured debt of the instant real estate after the instant sales contract was changed to KRW 140 million on August 17, 2012, and the amount of the secured debt of KRW 500 million was changed to KRW 40 billion and the amount of the secured debt of KRW 500,000,000 as at the time of the instant sales contract was changed to KRW 500,000,000,000,000,000 won or more, the amount of the secured debt of KRW 500,000,000,000,000,000 won or more at the time of the instant sales contract, the amount of the secured debt of KRW 61,01,01,00,00,0,00,0.

4. Conclusion

Then, the plaintiff's claim of this case is justified within the scope of the above recognition and partly cite it.

In addition, the remaining claims are dismissed due to the lack of reason, and the judgment of the court of first instance, including the extended and modified plaintiff's claims in the trial, shall be modified as above, and it is so decided as per Disposition.