Seongbuk-2018-Shap-409274 ( October 11, 2019)

Revocation of Fraudulent Act

Since the transfer of this case is a single fraudulent act as a whole, it is reasonable to determine whether the said transfer is insolvent of 00 related to each of the above transfers, as of September 25, 2017, which was completed a series of fraudulent acts.

2019Na11209 Revocation of Fraudulent Act

Korea

○ Kim

Suwon District Court Decision 2018Gahap409274 Decided April 11, 2019

September 5, 2019

September 26, 2019

1.The judgment of the first instance shall be modified as follows:

(a) An act of reimbursement of KRW 20,000,000,000, which was performed by Park○○ on August 25, 2017 to the Defendant by the Defendant; an act of reimbursement of KRW 26,00,000,000 on August 26, 2017; and an act of reimbursement of KRW 000,000,000 on September 25, 2017;

Each disposition shall be revoked to the extent of the Board.

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

C. The plaintiff's remaining claims are dismissed.

2. 1/10 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

A. On August 25, 2017, the Defendant and Gab○○ filed a claim with the effect that each of the gift agreements of KRW 00,000,000,000, which was concluded on August 26, 2017, which was concluded on August 26, 2017, which was concluded on September 25, 2017, should be revoked [the Plaintiff sought revocation of each of the above gift contracts in its purport from the first instance to the first instance trial, but the Plaintiff sought revocation of each of the above gift contracts, as well as seeking revocation of each of the above gift contracts against the Defendant of Gab○○○. The obligee’s claim that the monetary payment of KRW 00,00,000 constitutes a fraudulent act, and the obligee’s claim that was otherwise asserted on the gift or reimbursement of KRW 00,000,00,000,000, which was concluded on September 25, 2017, 2005].

B. The defendant shall pay to the plaintiff 215,00,000 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

2. Purport of appeal

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

1. Basic facts

A. On August 24, 2017, Park○○ concluded a sales contract with ○○○○○○○○○○-dong 000 and its ground (hereinafter referred to as the “instant building”) to sell the said building to 0,000,000 won, which is the sole property of ○○○○○○-dong 00,000 and the said building’s land (hereinafter referred to as the “instant real estate,” and the combination of the said building and the said land). Park○-○ was paid KRW 20,000 on August 24, 2017 from ○○○-si to ○○○-dong ○○○-dong 00,000, and KRW 00,000 on August 25, 2017, after deducting lease deposit, etc. as to the instant building from September 25, 2017 to ○○-○○-○, each of the instant real estate.

B. Meanwhile, from the account in the name of Park○○○ to the account in the name of the Defendant, which is one of the children of Park○○○, KRW 00,000 on August 25, 2017, ② KRW 00,000,000 on August 26, 2017, ③ KRW 000,000 on September 25, 2017, respectively, was remitted (hereinafter “the instant remittance”).

C. As ○○○ does not pay capital gains tax from the transfer of the instant real estate, the head of ○○ Tax Office under the Plaintiff’s control determined and notified the payment period to ○○○○ on January 10, 2018 as the capital gains tax on January 31, 2018. The said amount of capital gains tax to be paid by ○○○ around November 201, 2018, which was around the time of filing the instant lawsuit, is KRW 00,000,000 including additional tax (hereinafter “instant tax claim for capital gains tax, etc. against ○○○○”).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 7, Eul evidence 1 (including branch numbers, if any; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination

(a) The occurrence of obligee's right of revocation;

(i) A preserved claim;

A) 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 could be viewed as a fraudulent act in principle, it is highly probable that at the time of the fraudulent act, there has already been legal relations that would serve as the basis of the establishment of the claim, and that the claim should be established in the near future. In the near future, where the probability of the claim has been realized and the claim has been created in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2010Da68084, Jan.

B) Determination

According to the above facts, by entering into a sales contract for the sale of the instant real estate on August 24, 2017, which was prior to the transfer of the instant transfer, there is a high probability that there exists any legal relationship that serves as the basis for establishing the instant tax claim, and that the instant tax claim is likely to accrue in the near future. In addition, the Plaintiff determined and notified the transfer income tax amount of KRW 00 million,000,000, and the additional tax was incurred due to his/her failure to pay it by Park ○○○. Accordingly, the instant tax claim is subject to the obligee’s right of revocation for the instant transfer.

(ii)the intent to commit fraudulent acts and to commit fraud;

A) Party’s assertion

(1) The plaintiff's assertion

The remittance of this case is a donation of money to the Defendant in excess of his obligation by Park○-○.

Therefore, it constitutes a fraudulent act, and is presumed that Park○-○’s intent to commit suicide is presumed. Of note, even if Park○-○ performed his/her obligation against the Defendant, this constitutes a fraudulent act, since Park○-○’s repayment in collusion with the Defendant.

(2) The defendant's assertion

The remittance of this case does not constitute a fraudulent act, since the defendant's loan claims against Park ○○ have been repaid properly.

B) Legal principles

If a debtor donated his/her own property to another person in excess of his/her obligation, such act constitutes a fraudulent act, barring any special circumstances. On the other hand, in cases where the debtor’s joint security of other creditors is reduced by repaying his/her obligation to a specific creditor under excess of obligation, performance does not constitute, in principle, a fraudulent act unless the debtor, in collusion with some creditors, made performance with the intent of undermining other creditors. Whether the debtor performed performance with the intent of undermining other creditors in collusion with some of his/her creditors should be attested by the person who asserts the fraudulent act. Such determination should be made by comprehensively taking into account all the circumstances such as whether the debtor’s claim against the debtor exists, the amount of the debtor’s claim against the beneficiary, the relationship between the debtor and the beneficiary, the awareness of the debtor’s ability to repay, the act of the beneficiary before and after the performance, the debtor and the beneficiary at the time of performance, and the circumstances and circumstances of the repayment (see, e.g., Supreme Court Decision 2004Da10985, Mar. 25, 25).

With respect to a creditor who seeks revocation of a fraudulent act asserts that an act of payment of money to a beneficiary of the debtor is a gift to the debtor, where the beneficiary contests that the act of payment of money was received as a repayment of the existing obligation, it should be proved that the said act of payment constitutes a gift, or that there are special circumstances, such as the intent to prejudice the creditor, only if the said act constitutes a donation, in order to recognize the said act of payment of money as a fraudulent act, and the burden of proof therefor lies on the part of claiming a fraudulent act (see, e.g., Supreme Court Decisions 2005Da28686, May 31, 2007; 2014Da41575, Oct. 27, 2014).

On the other hand, in cases where a debtor continues to dispose of several properties, it shall be determined on the basis of whether each act causes insolvency. However, in cases where there are special circumstances to regard a series of acts as a single act, it shall be determined on the overall basis of whether the other party to the disposition is identical, whether each disposition is close to time, whether the other party and the debtor are specially related, and whether the motive or opportunity for each disposition is identical (see, e.g., Supreme Court Decision 2012Da34740, Mar. 27, 2014).

C) Determination

(1) Criteria for determining the existence of the remittance of this case

On the other hand, the above facts are as follows: ① ○○ and the Defendant are mother-and-child parties; ② The transfer of this case was performed over one month in total by taking into account the following facts: (a) the value of the items of the sales price of the real estate at Park○○○ at the time it receives the down payment, intermediate payment, and balance as the sales price of the real estate at the time it receives respectively; and (b) the value of the items of the items of the sales price at the time it receives the down payment, intermediate payment, or balance; (c) the amount of the instant tax liability at KRW 1,000,000,000 for the instant tax liability at KRW 2,000,000 for the instant local tax liability at KRW 3,000,000 for the repayment of lease deposit at KRW 400,000,000 for the lease deposit at the end of the following day; and (d) the Defendant’s claim that the instant real estate was entirely transferred within the same purpose as the instant real estate sales price at the end of the instant real estate.

(2) Whether the debt exceeds ○○’s debt

First of all, there is no dispute between the parties on the fact that the active and passive property of 00 million won at the time of the transfer of this case is indicated below.Furthermore, even according to the Defendant’s assertion, the Defendant has at least KRW 00 million loan claims against 00,000,000 at the time of the transfer of this case. Accordingly, the instant case is eventually subject to the following grounds.

○○○’s small property at the time of transfer is a total of KRW 0,000,000 (=0,000,000 +00,000 + KRW 000,000,000). This exceeds the value of the aforementioned active property. As such, Park○○ is deemed to have exceeded the obligation at the time of the instant transfer.

(3) Whether the remittance of this case constitutes a gift

However, in light of the overall purport of the pleadings, it is difficult to conclude that the remittance of this case was a gift, and there is no other evidence to prove that the transfer of this case was a multiple remittance transactions between the Defendant and YO from March 2009 to August 2017, 2017, based on the following: (a) evidence Nos. 10, Nos. 2, 3, 6, 8 through 11, and 15; and (b) evidence Nos. 10, Nos. 2, 3, 6, 8 through 11, and 15.

(4) Whether the remittance of this case constitutes a joint repayment upon the collusion

In full view of the following circumstances, it is reasonable to view that the instant remittance was performed in collusion with the Defendant and with the intent of undermining other creditors, by comprehensively taking account of the following circumstances, which can be acknowledged by comprehensively taking account of the aforementioned evidence and the statements in subparagraphs 17 through 19 of this Article, and the overall purport of the pleadings.

① The instant building is a multi-family house consisting of a large number of studio households and has been managing the instant building by leasing the studio in around 2001. However, around February 201, Park○-○ was involved in an accident involving the head part of the building, and caused brain damage. Since the said brain damage, Park○-○ had difficulty in normal communication until now.

② Park○-○ is unable to manage the building of this case due to brain damage as above.

It appears that the instant real estate was disposed of. The instant real estate was the only property of Park○○, and Park○, after the disposal of the instant real estate, did not engage in any special economic activity.

③ Even according to the Defendant’s assertion, the Defendant came to know from around 2009 that he had come to know about the financial status of Park Jong-○, and it was also aware of the detailed obligation of Park Il-○ at the time of disposal of the instant real estate.

④ In fact, the Defendant appears to have sold the instant real estate by acting on behalf of or on behalf of, and at the same time led to the disposal of the sales price. Considering the Defendant’s age, career, etc., the Defendant could have sufficiently anticipated that the obligation to pay capital gains tax arises due to the disposal of the instant real estate.

⑤ The Defendant, upon downloading a transaction file regarding an account under the name of Park○○○, entered the name and content of the relevant transaction in the file, and printed out the file and submitted it as evidence (Evidence No. 10). In light of such circumstances, the Defendant appears to have practically controlled and managed the account under the name of Park○○○.

(5) Sub-committee

Therefore, it is reasonable to deem that the instant remittance constitutes a fraudulent act, inasmuch as Park○-○’s act of performing obligations in collusion with the Defendant while exceeding his/her obligation, as it constitutes a fraudulent act.

B. Scope of revocation of fraudulent act

However, according to the above evidence, on August 28, 2017, when the remittance of this case was made, the amount of KRW 00 million was remitted from the account under the name of the defendant to the account under the name of ○○ on August 28, 2017, and the above amount of KRW 00 million was used for the repayment of the obligation to return the lease deposit of ○○ on the same day. As seen above, the remittance of this case must be determined as a whole as a single act continuously conducted for the same purpose, and the whole amount of the remittance of this case must be determined. The amount of the remittance of this case is KRW 15 billion, but it was used again for the repayment of the obligation of ○○○. It is reasonable to view that the amount actually received by the defendant by the remittance of this case was KRW 00 million,0000,0000,000,0000,000,0000,000,000 won was actually cancelled by the defendant, considering the remainder of the remittance and the above amount of this case.

C. Sub-committee

Therefore, an act of repayment by Park○ shall be revoked within the limit of KRW 00 million as a fraudulent act, and the defendant shall be liable to the plaintiff to pay to the plaintiff the amount of KRW 00 million as its restitution and damages for delay calculated by the rate of KRW 5% per annum from the day after the day when this judgment becomes final and conclusive to the day when the repayment is complete.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the extent of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, it is so decided as per Disposition by accepting part of the defendant's appeal and changing the judgment of the court of first instance as above.