sale of real property, the sole property of which is in excess of liabilities, constitutes a fraudulent act

The sale of real estate, which is the only property substantially valuable in excess of debt, to the defendant, is detrimental to the interests of other creditors by reducing joint collateral against the general creditors, and is presumed to be fraudulent against the tax claimant, and the defendant's bad faith is presumed to be the beneficiary.

2012 Gohap 101808 Revocation of Fraudulent Act

Korea

Park AA

October 9, 2012

October 23, 2012

1. The trade contract concluded on September 25, 201 with respect to the real estate listed in the separate sheet between the defendant and the lowestB shall be revoked.

2. The Defendant will implement the procedure for registration of cancellation of ownership transfer registration, which was completed on October 10, 201 by the head of Suwon District Court on the real estate listed in the separate sheet, and completed on October 10, 201 by the head of Suwon District Court for the registration of cancellation of ownership transfer registration.

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

The same shall apply to the order.

1. Basic facts

A. Plaintiff’s transfer income tax claim against the largestB

1) On February 22, 2010, LB entered into an exchange contract with thisCC to exchange the real estate in the attached list owned by thisCC (hereinafter referred to as “instant real estate”) and the difference of 00 won with the land and its ground (hereinafter referred to as “OO-dong real estate”) owned by thisCC, the LB entered into the Suwon District Court Anyang Branch of Suwon Branch of the Suwon District Court on May 19, 2010, with the MBB No. 32416.

2) On July 201, 201, the highestB reported 000 won as capital gains tax for the O-owned real estate, and the head of the Yongsan Tax Office under the Plaintiff’s control confirmed that the lowestB undergoes a tax investigation, and notified it to the lowestB on August 24, 2011, and notified it on October 1, 201 in relation to O-owned real estate transaction, and notified it to the lowestB on October 1, 201, and the year to which the said capital gains tax belongs, and the period to which the capital gains tax is paid, are 00 won as of the following table, and the amount in arrears is 00 won.

(b) sale and purchase of real estate by the largestB to the Defendant;

On September 25, 2011, the largestB entered into a sales contract with the Defendant, who is the wife, with the purchase price of the instant real estate as KRW 000, while KRW 000, out of the purchase price, the Defendant entered into a sales contract with the Defendant to the effect that the amount actually paid is KRW 00,00 (hereinafter referred to as “the sales contract in this case”) in lieu of the Defendant’s acquisition of the lease deposit established on the instant real estate and the financial obligations of the largestB, and completed the registration of ownership transfer on October 10, 201 with respect to the instant real estate as the Suwon District Court Anyang Branch Branch of the Suwon District Court, as the receipt of No. 698

C. The mostB’s asset status 1) active property at the time of the instant sales contract

At the time of the instant sales contract, most B had active property in the amount of KRW 000 financial property, KRW 000 in the market value of KRW 000, and KRW 000 in the market value of KRW 2000, and KRW 000 in the market value of KRW 00, and positive property in the instant real property.

2) Petty property

At the time of the instant purchase and sale contract, the largest BB had a small property of KRW 000 in total,00,000,000, and KRW 000,000,000, which was established on the instant real estate, for the mortgage debt against NFC, which was established on the instant real estate (at the time of the instant transfer income tax, the instant transfer income tax liability was not specifically established, but thereafter, the relevant basic legal relationship has already occurred and the claim is highly probable to have been established, and it is reasonable to include a small property as well as a small property).

[Ground of Recognition] The non-contentious facts, Gap evidence 1 through 5 (including the number number, if any), and the testimony of the witness mostB, and the whole purport of the pleading

2. Determination

(a) the existence and scope of the preserved claim;

In principle, a claim that can be protected by the obligee’s right of revocation should have arisen before the obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, it is highly probable that at the time of the juristic act, the legal relationship which has already been based on which the claim was established, and that the claim was created in the near future, and its probability has been realized in the near future, and its claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decisions 2000Da37821, Mar. 23, 2001; 2006Da6753, Jun. 29, 2007; 201Da6753, Sept. 25, 2011). Accordingly, according to the above recognition facts, the time when the best B had concluded the contract with the Defendant, and the time when the Plaintiff had been lawfully notified of the ownership of the transfer income tax of this case between the Plaintiff and the B, 201B.

B. Establishment of fraudulent act

1) Presumption of fraudulent act and bad faith

Unless there are special circumstances where the sale of real estate owned by a debtor in excess of debt is conducted at a reasonable price to cover a legitimate repayment to some creditors, the act of selling such real estate and changing it into money which is easy for the debtor to consume is a fraudulent act against the creditor, and the intent of the debtor's deception is presumed (see Supreme Court Decisions 2009Da67252, Dec. 10, 209; 66Da1535, Oct. 4, 1966). According to the above recognition, the sale of the real estate in this case, which is the only property value in excess of debt, to the defendant, is detrimental to the interests of other creditors by reducing joint collateral against the general creditors, and thus, it is presumed that the plaintiff's bad faith, the beneficiary, and the defendant's bad faith, the beneficiary, is presumed to be detrimental to the interest of other creditors.

2) Judgment on the defendant's defense

The defendant sold the real estate in this case at a reasonable price, and the sales price was appropriated for repayment to the creditor in due course, so it is not sufficient to recognize that the sales contract in this case does not constitute a fraudulent act, but it is not sufficient to recognize that each of the real estate in this case was made at a reasonable price in order to meet the legitimate repayment to the creditor, and there is no other evidence to support this otherwise. Therefore, the defendant's assertion is without merit.

Next, the defendant alleged that the sales contract of this case was not known that it was a fraudulent act detrimental to the plaintiff who is the creditor, but it is not sufficient to recognize the defendant's bona fide assertion, and there is no other evidence to prove otherwise.

(c) Revocation of fraudulent act and reinstatement;

Therefore, the instant sales contract concerning the instant real estate between BB, the debtor, and the defendant who is the beneficiary, should be revoked as a fraudulent act, and the defendant, as a subsequent restitution, has the obligation to implement the registration procedure for cancellation of ownership transfer registration as stated in Paragraph 2 of the Disposition.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.