It constitutes a fraudulent act if the sales contract was entered into in excess of obligations.

The fact that the transfer value of real estate is reduced or the acquisition value is doublely calculated, and the bad faith is presumed to have been reported, and the shortage of joint security is deepened by entering into a pre-sale and sales contract under excess of obligations, so the pre-sale and sales contract constitutes fraudulent act.

201Aband 21252 Revocation of Fraudulent Act

Korea

The AA

April 26, 2012

June 14, 2012

1. The purchase and sale reservation and sales contract entered into on November 23, 2010 with respect to the real estate listed in the separate sheet between the Defendant and the PartyB shall be revoked within the limit of 000 won each.

2. The defendant shall pay to the plaintiff 00 won with 5% interest per annum from the day following the day when this judgment became final and conclusive to the day when all of them are paid.

3. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Facts of recognition;

A. Formation of a taxation claim

1) AB run real estate sales business under the so-called “CC” from April 2, 2007 to March 28, 2008 with the trade name between Ulsan-gu O2000 to Ulsan-dong, and DD development from September 1, 2009 to December 31, 2010 with the trade name between DD development.

2) On December 1, 2010, from December 1, 2010 to October 10 of the same month, the Busan JG had conducted a tax investigation with respect to B, and due B had to report the larger amount of the income by comparing the transfer income tax rate and the global income tax rate under Article 64 of the Income Tax Act to a person who runs a real estate sales business, and had reported the amount of income according to a small comprehensive income tax rate without reporting the amount of income according to the transfer income tax rate, and reported or combined the acquisition value of the sold real estate in a false or overlapping manner, the Busan JG and Ulsan District Office notified the total amount of 00 won for global income tax in 207 and 2008 and 4 business income tax in 209 (hereinafter “instant taxation claim”).

3) The amount of the existing arrears and the amount of the additional arrears identified by the due B’s tax investigation are as follows:

(b) Disposal;

1) JeongB completed the registration of ownership transfer on December 30, 2010 with respect to each of the real estate listed in the separate sheet (hereinafter referred to as "each of the real estate in this case"), and on November 23, 2010 with respect to the purchase and sale reservation (hereinafter referred to as "the reservation of this case") as its original source, and on November 26, 2010 as the receipt of No. 95444 on November 23, 2010, and on November 23, 2010 as the purchase and sale order (hereinafter referred to as "the sales contract in this case"), the registration of ownership transfer was completed on December 30, 207 as the receipt of No. 107972, Dec. 30, 201; the Defendant received the ownership transfer registration on December 27, 2017 with respect to each of the real estate 20/30 of 50/2333 of the real estate listed in the separate sheet (1) as 20.37.37.

(c) Property status;

At the time of the promise to sell and purchase each of the instant real estate (total amount of 000 won) and 1174/6340 square meters in South-gu, Seoul-gu, Seoul-do, an OO 000 forest, while 1174/6340 square meters in South-gu (market price of 000 won), however, as a small property, there were 00 won in arrears (based on the notified amount) and 200 won in excess of debt.

[Ground of Recognition] The non-sured facts, Gap 3, 4, 5, and 6, and 8 (including the family heading), and the purport of the whole pleadings

2. Determination on the revocation of fraudulent act and the claim for restitution

(a) Claims for preservation;

Inasmuch as global income tax and business income tax additionally notified after a tax investigation were established on December 31, 2007, which is the end of each of the years to which it belongs, and on December 31, 2009, the tax liability was established on December 31, 2008, and on December 31, 2009, the instant tax claims are deemed to have already occurred before November 23, 2010, which is the date of the instant trade reservation and sales contract, and thus, they are preserved claims to cancel the instant sales promise and sales contract.

B. Establishment of fraudulent act

The lack of common security has deepened by entering into the instant purchase and sale reservation and sales contract with the Defendant with respect to each of the instant real estate in excess of liabilities. Thus, the instant purchase and sale reservation and sales contract are fraudulent for the Plaintiff, while the instant tax claim was established in the business year, and the 200s 'B Preferred Real Estate and 30s 'Preferred to in this case' was operated for the Plaintiff.

In full view of the following circumstances, i.e., ① the tax amount omitted due to the lack of comparative tax rates during the above period, and ② the tax amount was less than KRW 000 by lowering the transfer value of real estate or by double appropriation of the acquisition value, and ③ the Busan District Tax Office, around September 2010 prior to the tax investigation, asked for the submission of contract documents and necessary documents, but the dueB was aware of the existence of the tax amount omitted at the time of the tax return, taking into account the following circumstances, i.e., the tax amount omitted during the above period, and ii) the Defendant’s bad faith, which is the beneficiary, was presumed to have been aware of the fact that the tax amount omitted at the time of the tax return, caused the reduction of liability due to such act.

C. Judgment on the defendant's argument

The defendant tried to acquire each of the above real estate from 1B, but decided to purchase the real estate from 1B, and had 1B acquire each of the above real estate from 1B. Thus, 1B had already purchased and sold each of the above real estate on November 17, 2009, and 200 won were subrogated for 30 million won on October 7, 2009, and 200 won were directly paid to 300 won on 28th of the same month, and 300 won was paid to 50 won on 200 won, and 300 won was paid to 50 won on 20th of the same month, and 100 won was paid by 1B on 18th of the same year, and 200 won was paid by subrogation between 1B and 300 won on 1st of the above fraudulent act, and 3rd of this case’s sales and purchase, and thus, the defendant did not have any special reason to recognize that each of the above fraudulent act constitutes a legal act.

(d) The method of cancelling a fraudulent act and restoring it to original state;

1) As a matter of principle, restitution following the cancellation of a fraudulent act shall be based on the return of the object itself, and compensation shall be granted for cases where it is impossible or considerably difficult to restore the object, and compensation for the amount of compensation shall be limited to the creditor's claims for preservation, the amount of joint collateral value of the object of fraudulent act, and the profits acquired by the beneficiary, and the creditor may request the subsequent purchaser to pay the amount directly. If the object of the fraudulent act is transferred from the beneficiary to the subsequent purchaser and the registration has been completed, then the creditor may recover the ownership of the object against the subsequent purchaser and then transfer it to the creditor, unless there are special circumstances where the subsequent creditor can recover the ownership of the object from the subsequent purchaser and then transfer it to the subsequent purchaser (see, e.g., Supreme Court Decision 97Da58316, May 15, 1998). Accordingly, the defendant, the beneficiary, and the defendant, as the plaintiff, shall compensate the plaintiff for the transfer registration of ownership in accordance with the separate list list 2, 2, and H ownership from the subsequent list 2.

2) According to the facts that the sum of the Plaintiff’s tax claims against Jeong-B is 000 won as seen earlier, and the Plaintiff’s tax claims against Gap 4-1, 2-2, and 3-1 and 2 are as follows, and the original E, etc., totaling 00 won in the transaction value of the real estate listed in the separate sheet No. 1 as stated in the separate sheet No. 1, and the original E, etc. completed each registration of ownership with 000 won in the transaction value of the real estate listed in the separate sheet No. 2 as stated in the separate sheet No. 2. At the time of the promise to purchase and sell each of the instant real estate, the secured amount was 00 won in each of the instant real estate, but the secured amount was 00 won in total. According to the above facts, according to the above recognition, each real estate price of this case is 3000 won in total, and the joint security value is 000 won in total and 000 won in each of the Plaintiff’s claim amount.

E. Sub-committee

Therefore, the reservation and sales contract of this case constitute a fraudulent act, and thus, the contract should be revoked within the limit of 000 won as requested by the plaintiff, and the defendant is obligated to pay to the plaintiff the above 00 won as compensation for value and the damages for delay calculated at the rate of 5% per annum as provided by the former Civil Code, since the above 00 won as compensation for value is paid to the plaintiff

3. Conclusion

If so, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition.