Suwon District Court-2018-Ban-506793 ( November 16, 2018)

Act of selling or buying real estate or concluding a pre-contract with debt excess shall be deemed to have been entrusted by Maritime Affairs

It can be said that the country was aware of the reason for cancellation at the time when the tax officials knew not only the fact of the delinquent taxpayer's disposal of property but also the existence of a specific fraudulent act and the fact that the delinquent had the intention of deceiving the delinquent taxpayer.

2018Na89718 Revocation of Fraudulent Act

Korea

KimA

Suwon District Court Decision 2018Gadan506793 Decided November 16, 2018

2019.07.25

2019.08.29

1. The defendant's appeal is dismissed.

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

[Claim]

1. (a) On February 26, 2016, both the Defendant and Nonparty B’s purchase and sale agreements and sales agreements entered into on February 26, 2016 with respect to each real estate share listed in the separate sheet 1 through 3 shall be revoked.

B. The Defendant: (a) to Nonparty B; (b) to Nonparty 1; (c) to the Suwon District Court CC registry office of 2016 for each real estate portion listed in the separate sheet No. 1; (d) to the provisional registration for the right to claim for share transfer completed on February 29, 2016; (c) to the cancellation registration for each right to claim for share transfer completed on January 2, 2018 by the receipt of No. 126 of the same registry office; (d) to the Suwon District Court CC registry office of 2019 completed on February 29, 2016; (e) to the provisional registration for the right to claim for share transfer completed on January 29, 2018; (e) to the cancellation registration procedure for each right to claim for share transfer completed on February 29, 2016; and (e) to the cancellation registration procedure for each right to claim share transfer completed on February 12, 2018.

2. (a) On February 26, 2016, the Defendant and Nonparty B’s subscription to purchase and sale concluded on February 26, 2016 with respect to each real estate share listed in the separate sheet 4 and 5 shall be revoked.

B. On February 29, 2016, the Defendant shall implement the procedure for the cancellation registration of the registration of the cancellation of the provisional registration of the right to claim for share transfer, which was completed as of February 29, 2016, with respect to the share of real estate listed in the separate sheet No. 9120 on February 29, 2016, as to the share of real estate listed in the separate sheet No. 9120 on February 29, 2016.

【Purpose of Appeal】

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this court is as follows. The defendant added the following '2. additional determination' to the exclusion period of the creditor's right of revocation, which the defendant added to this court, is the same as the ground for the judgment of the court of first instance. Thus, it is accepted in accordance with the main sentence of Article 420 of the Civil Procedure Act (a abbreviation used in the court of first instance is also used).

[Supplementary Use]

The fact that the beneficiary was unaware of the fraudulent act is one of the beneficiaries of this case (see, e.g., Supreme Court Decision 95Da51908, May 23, 1997). ① in this case, forestB is the defendant’s wife-type relationship. ② According to the evidence No. 3, the defendant purchased only shares of 2/11 of the real estate in this case where multiple co-owners owned, and the address of 2/11 of the real estate was removed from ○○, ○○, ○○, and ○○, etc., which is difficult to be compared to the defendant’s assertion that the beneficiary had purchased the land for development purposes. ③ According to the evidence No. 1 through 3 (including serial number) of this case’s residential document, it is difficult to accept the defendant’s allegation that the beneficiary had been aware of the remaining deposit amount before and after the date of deposit in the same account No. 200, Feb. 26, 2016; ④ The fact that there was no other evidence of deposit in the same account No.

2. Additional determination

A. Summary of the defendant's assertion

On February 15, 2017, the Plaintiff was aware of the grounds for revocation of fraudulent act on three parcels of the instant real estate shares, which had completed the registration of seizure on three parcels of the instant real estate shares. Since the instant lawsuit for revocation of fraudulent act was filed on February 19, 2018, one year after the said lawsuit was filed, it is unlawful.

B. Legal principles

The "date when the obligee becomes aware of the cause for revocation" in the exercise of the obligee's right of revocation means the date when the obligee becomes aware of the fact that the obligor committed a fraudulent act while knowing that the obligee would prejudice the obligee. Thus, it is insufficient to simply say that the obligor was aware of the fact that the obligor performed a disposal act of the property, and that the juristic act is an act detrimental to the obligee, it is necessary to make it impossible to fully satisfy the claim due to the lack of joint security of the claim or the lack of joint security in the situation where the obligor would be insufficient, and that there was an intent to harm the obligor. Furthermore, it is difficult to presume that the obligee was aware of the objective fact of fraudulent act, and the burden of proof as to the lapse of the exclusion period is 207, the obligee was the other party to the suit for revocation (see, e.g., Supreme Court Decision 2013Da5855, Apr. 26, 2013).

C. Determination

According to Gap evidence No. 3-1, the plaintiff completed the registration of seizure in the name of the plaintiff on February 15, 2017 with respect to three parcels among the shares in the real estate of this case acquired by inheritance on or around February 4, 2016 by HB on or around February 4, 2016 (in case ofCC, ○○○○○ 362, 363-2, 335-15, ○○ 335-15). However, the above facts alone are insufficient to recognize that the plaintiff disposed of the remaining real estate in three parcels of the real estate shares in this case other than the real estate shares (the sale list of the register includes only the real estate shares in attached Tables 1 and 3), and that the disposal act constitutes fraudulent act, and that HB knew knew that there was no other property except the shares in this case, there is no other evidence to support this otherwise.

오히려 갑 제4, 8, 10호증의 각 기재와 변론 전체의 취지에 따르면, 원고의 임BB에 대한 체납세금 징수 담당 공무원이 2017. 7.경 임BB의 재산현황표를 출력하여 열람하였고, 2017. 7. 26.부터 같은 해 8. 1.까지 걸쳐 이 사건 부동산지분 중 19필지 및 임BB 소유의 기업은행과 농협은행 예금채권에 대해 압류를 한 사실이 인정되고 이에 더하여 담당 공무원이 2017. 2.경 이 사건 부동산 지분 중 3필지에 대해서만 압류등기를 경료한 후 더 이상 체납처분을 진행하지 않았고 위 압류된 3필지는 임BB가 소유한 이 사건 부동산 22필지 중 일부에 불과한 점, 위 징수 담당 공무원이 2017. 7.경 이전에 임BB의 재산관계를 조사하여 채무초과 여부를 알거나 알 수 있었다고 볼 수 있는 정황은 드러나지 않는 점, 원고의 징수 담당 공무원은 조◇완(2016. 7. 7.부터 2017. 1. 16.까지), 나◇빈(2017. 1. 17.부터 2017. 7. 2.까지), 심◇민(2017. 7. 3.부터 2017. 8. 3.까지)으로 순차 담당자가 변경되었는데 변경된 담당자인 심◇민이 임BB의 재산관계 현황을 조사한 후 이 사건 부동산 지분 중 압류되지 않은 부분에 대해 압류처분과 함께 보유예금 등에 대해서도 압류한 것으로 보이는 점 등에 비추어 볼 때 이는 담당세무 공무원이 2017. 7.경에 이르러서야 이 사건 부동산지분 등 임BB의 자산을 파악함과 함께 이 사건 부동산지분 전부에 대해 피고 명의로 매매예약 및 소유권이전청구권가등기가 설정된 사실을 확인하고 본격적으로 체납처분을 시작한 것으로 볼 수 있다(원고는 소장에서 2017. 7.경 국세체납 정리를 위해 재산현황표를 출력하여 등기부 등본을 열람 검토 후 사해행위임을 알게되었다는 취지로 주장한다). 그렇다면 원고가 임BB의 사해행위 및 사해 의사를 안 것은 이 사건 부동산 중 19필지에 대한 지분에 대해 압류등기를 비로소 경료하기 시작한 시점인 2017. 7. 26.경이라고 할 것이고, 이 사건 소가 그로부터 1년이 경과되기 전인 2018. 2. 19. 제기되었음은 기록상 명백하므로 피고의 제척기간 도과를 이유로 한 본안전 항변은 받아들이지 아니한다.

3. Conclusion

Therefore, the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.