In spite of the formal repayment of loans and the re-issuance of loan contracts, the pledge has continued to exist to secure loan claims.

It is reasonable to view that the new notification of the establishment of a pledge to the debtor of the instant membership was made within the meaning of confirming that the content of the pledge was modified by the conclusion of the loan contract and the repayment of part of the secured debt, instead of the intention to newly establish a pledge upon the extinction of the existing pledge. Therefore, the scope of the fraudulent act is recognized only within the scope of the fraudulent act.

2012 Gohap32287 Revocation of Fraudulent Act

Korea

AAAA Energy Corporation

May 23, 2013

June 13, 2013

1. (a) The sales contract concluded on May 30, 201 with respect to golf membership entered in the separate sheet between the Defendant and BBB enterprise corporation shall be revoked.

B. The defendant expresses his intention to transfer golf membership in the annexed list to the BB enterprise corporation, and shall notify the CCC of the transfer of the above golf membership.

2. The costs of the lawsuit are assessed against the defendant.

The disposition is as follows (However, the plaintiff's restoration to original state with the full cancellation of the sales contract mentioned in Paragraph (1)(a) of this Article, "the defendant claims compensation for the amount of money calculated by the ratio of 5% per annum from the day following the day when the judgment of this case is finalized to the day when the payment is complete." However, as seen below, restitution following the full cancellation of the above sales contract must be made by the method of return of original properties, such as that of Paragraph (1)(b) of this Article.

1. Facts of recognition;

A. The Plaintiff’s taxation claim against BB business corporation

(1) BB business corporation (hereinafter referred to as “BB business”) was a corporation established by making advertisement preparation and manufacturing business, and closed on August 19, 201.

(2) On July 8, 2011, between June 8, 2011 and July 26, 2011, the head of the Yangcheon Tax Office under the Plaintiff’s control determined and notified the payment deadline to BB enterprises on July 31, 201, as indicated in the following table, KRW 000,000, total value-added tax and corporate tax for the period from January 2001 to January 2003, and the BB enterprises did not pay KRW 000,000 as of October 5, 201, which is the filing date of the instant lawsuit (hereinafter “instant tax claim against the Plaintiff’s BB enterprises”).

(The following table omitted):

(b) disposition and debt excess of the BBB enterprise;

(1) On May 30, 201, BB Company sold golf memberships (hereinafter referred to as “instant memberships”) recorded in the separate sheet to the same Defendant as BBB Company and its representative director, for KRW 000 (hereinafter referred to as “instant sales contract”), and around that time, transfer of the name of the Defendant was made regarding the instant memberships.

(2) At the time of the instant sales contract, BBB had the following status: (a) the value of the small property exceeds the value of the positive property.

[affirmative Property]

① Membership of this case: Market price of 000 won

(2) MW automobiles: Market price of 000 won: 000 won in total.

[negative Property]

Tax liability of this case: Total amount of notified tax amount of KRW 000

[Reasons for Recognition] Facts without dispute, and the purport of Gap evidence 1 through 4 (if there are serial numbers, including branch numbers, and hereinafter the same shall apply) as a whole;

2. The establishment of a fraudulent act;

(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 before the act was conducted as a matter of principle, it is highly probable 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 in the near future, and that the claim should be established in the near future, and where a claim has been established in the near future because its probability has been realized, the claim may also become a preserved claim (see, e.g., Supreme Court Decision 2000Da37821, Mar. 23, 2001). However, the corporate tax and value-added tax claim are legally established without the separate procedure of the tax authority or the taxpayer at the end of the taxable period (Article 21(1)1 and 7 of the Framework Act on National Taxes), and the tax claim in this case was established on the date stated in the “the date the establishment of the tax obligation in the table of the above sales contract was established, and it is probable that the tax claim in this case was determined in the near future.

(b) Fraudulent act;

BBB was in excess of the obligation at the time of the instant sales contract, and the sale and transshipment of the instant membership by the BBB company in excess of the obligation to the Defendant constitutes a fraudulent act that causes the reduction of liability property in relation to other creditors, including the Plaintiff, barring special circumstances. A corrective investigation conducted on June 8, 201, and Article 81-7(1) of the Framework Act on National Taxes requires the taxpayer subject to tax investigation to notify the items of investigation, the period of investigation, and the reason for investigation, etc. 10 days prior to the commencement of the investigation, and in light of the fact that the BB company sells the instant membership, which is the most active property of the first place before the commencement of the investigation, to the Defendant that the BB and the representative director were the same, it is presumed that the BB company was aware that the conclusion of the instant sales contract would prejudice the creditors due to the conclusion of the contract, and furthermore, the Defendant’s bad faith, the beneficiary, and the beneficiary is presumed.

C. Determination on the defendant's good faith defense

Although the defendant did not know the fact that the above contract was a fraudulent act at the time of the conclusion of the contract of this case, the defendant's defense is without merit.

3. Revocation of fraudulent act and reinstatement;

A. The parties' assertion

At the time of the instant sales contract, the Plaintiff did not have any security right to the instant membership. The Defendant, while purchasing the instant membership from the BB company, took over 000 won from the BB company’s shares to the debt owed to the DD Savings Bank (hereinafter “DD Savings Bank”) for the DD Savings Bank (hereinafter “DD Savings Bank”), and established a pledge to the DD Savings Bank as to the instant membership on June 9, 201 after the instant sales contract was concluded, which was on June 9, 201, to establish a fraudulent act against the entire amount of KRW 000,000, which is equivalent to the market price of the instant membership, and the Defendant sought revocation of the entire sales contract and compensation for damages equivalent to the market price of the instant membership. As the right to eradicate the instant membership had already been established since before the instant sales contract was concluded, the Defendant asserts that only fraudulent act is established within the scope of the market price of the instant membership, excluding the amount of the debt guaranteed by the said DD Savings Bank.

B. Scope of the establishment of fraudulent act

(1) If a property on which a security right such as a pledge is established is transferred by a fraudulent act, the fraudulent act is established only within the extent of the balance obtained by deducting the secured debt such as the pledge from the value at the time of the fraudulent act, and if the secured debt exceeds the value of the property, the transfer of the property concerned cannot be deemed a fraudulent act. The amount of the secured debt here refers to the amount of credit actually occurred, not from the maximum debt amount in the case of a pledge right (see, e.g., Supreme Court Decision 2000Da42618, Oct. 9, 201).

(2) Since it is difficult to find that 0.0. 0. 0. 0. 0, 200, 200, 200, 200, 200,000,000,000,000 won were 0. 0. 0,000,000,000,000 won were 0. 0,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000,000,00,000,000,000,00,000,00,000,00,000,00,000,00,00,000,00.

(c) Scope of revocation of fraudulent act and methods of reinstatement;

(1) In accordance with Article 406(1) of the Civil Act, when a creditor’s revocation of a fraudulent act and a claim for restitution is acknowledged, and the beneficiary has the obligation to return the object of the fraudulent act to the debtor as restitution, and when it is impossible or considerably difficult to return it to the debtor, the beneficiary shall compensate for the equivalent amount of the value of the object of the fraudulent act by performing the duty to restore. Here, when the original return is impossible or considerably difficult, it refers to cases where the original return is not simply absolute and physical impossible, but can not expect the realization of the performance in light of the social experience rules or the concept of transaction (see, e.g., Supreme Court Decision 2007Da18218, Jul. 12, 2007). Meanwhile, in cases where a legal act on a property constitutes a fraudulent act, in principle, it is necessary to cancel the fraudulent act and order the restoration of the property itself to the extent that it does not constitute a joint security (see, e.g., Supreme Court Decision 200 already 206Da1626060.).

(2) As seen earlier, there is no evidence to acknowledge that the said pledge was cancelled as of the date of closing argument in the instant case with respect to the instant membership rights, and even if a fraudulent act cancels the entire sales contract, it cannot be said that the part recovered from the joint security of general creditors even if the entire sales contract was cancelled, it is limited to the remaining part except the amount of the collateral obligation of the pledge in the market price of the instant membership rights, and it cannot be said that the cancellation of the entire sales contract in the instant case and the order to return the original part of the instant membership rights was significantly difficult to return the original part of the instant membership rights. Accordingly, the instant sales contract should be cancelled in its entirety as a fraudulent act, and the Defendant is also obligated to return the membership rights to BBB enterprises following that, as the instant contract was cancelled and the order to return the original part of the instant membership rights was issued in the manner of returning the membership rights to BB enterprises without the purport of returning the original part of the Plaintiff’s claim to the original part of the instant sales contract and the purport of the instant order to return the original part of the instant purchase rights.

4. Conclusion

Thus, the plaintiff's claim of this case is justified and accepted.