Whether a real estate with no de facto value does not constitute a fraudulent act

As long as surplus has been distributed in the course of voluntary auction, the assertion that real estate has no real value is without merit.

Article 30 of the National Tax Collection Act (Cancellation of Fraudulent Act)

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

A. The contract of donation concluded on October 18, 2006 between the defendant and Lee Jong-sik shall be revoked.

B. The defendant shall notify Lee ○-sik that he transferred the bonds listed in the separate sheet to the Republic of Korea (competent Busan District Court) and transferred the bonds listed in the separate sheet to Lee ○-sik.

2. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

In the case of paragraph (1) of this Article, the plaintiff sought to cancel the ownership transfer registration under the name of the defendant with respect to the real estate listed in the separate sheet by the original method of restitution, but the court modified the purport of the claim as stated in paragraph (1) of this Article.

2. Purport of appeal

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

1. Basic facts

A. This type of ○○ Gameland operated a speculative game site under the trade name of ○○○ Gameland, and the sales was omitted at the time of the return of value-added tax for the first term of 2006. On July 21, 2006, there was a press report that the National Tax Service started a large tax investigation on the speculative game site. The head of the North Busan District Tax Office imposed value-added tax amounting to KRW 365,638,960 (hereinafter “the instant tax claim”) on this ○○ Gameland for the tax investigation conducted on the ○○ Gameland, but this type of ○○ did not pay it up to the day.

B. On October 18, 2006, Lee Jong-sik donated the real estate listed in the separate sheet (hereinafter referred to as "the real estate of this case"), which is the only property to the defendant (hereinafter referred to as "the donation of this case"), and on October 18, 2006, the registration of transfer of ownership under the name of the defendant was completed as Busan District Court No. 68469.

C. Meanwhile, on June 5, 2008, the real estate of this case was sold in the auction procedure for real estate rent in Busan District Court Decision 2007Ma4766, and the distribution schedule was prepared to distribute the surplus of KRW 40,271,48 to the Defendant on June 5, 2008. As to this, the Plaintiff raised an objection to the distribution and deposited the dividend of KRW 40,271,488 with Busan District Court. Meanwhile, on June 19, 2008, the Plaintiff was subject to a provisional disposition prohibiting the payment of dividends on the dividend payment claim, and then withdrawn the lawsuit of demurrer to the distribution on September 29, 2008.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 5, Gap evidence Nos. 8, 9, and 10, the purport of the whole pleadings

2. Determination

(a)the existence of preserved claims;

In principle, a claim that can be protected by the right of revocation of the right of revocation should have arisen before an obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, there is a high probability that at the time of the juristic act, there has already been a legal relationship which serves as the basis of establishment of the claim, and that at the time of the juristic act, there is a high probability about the creation of the claim in the near future, and in the near future, the claim can also be a preserved claim in the near future. In full view of the facts acknowledged above and the purport of the statement and the whole argument of evidence No. 6, this case's claim can be a preserved claim in this case's taxation claim in this case's taxation claim by omitting the sales revenue of value-added tax in January 2006, and around July 2006, it was highly probable that the tax claim in this case's taxation claim in this case was established based on the near future legal relationship due to the newspaper's report, etc., and it was impossible to do so.

B. Establishment of fraudulent act

The act of an obligor’s donation of real estate, which is its sole property, to another person without compensation, constitutes a fraudulent act against a creditor, barring any special circumstances. Therefore, the donation in this case constitutes a fraudulent act detrimental to the Plaintiff’s tax claim, and the Defendant’s bad faith, which is the beneficiary

C. Judgment on the defendant's assertion

The defendant asserts that since the real estate of this case is a real estate with no real value taking into account the secured obligation secured by the right to collateral security, the gift of this case cannot be a fraudulent act, and that the real estate of this case was acquired by the defendant and Lee Jong-sik with joint efforts, the real estate of this case is owned jointly with the defendant of this case and Lee Lee-sik, and in practice, the registration of transfer was made in the name of Lee-sik, the husband of this case. Thus, the gift of the defendant's co-ownership among the real estate of this case is not a fraudulent act, and the defendant was not returned at all from October 2005, and therefore, it was not returned to Lee Jong-sik, and therefore, it is only the donation of the

However, as seen earlier, insofar as there is a surplus of 40,271,488 won distributed to the defendant in the voluntary auction procedure for the instant real estate, the above assertion by the defendant that the instant real estate has no real value is without merit, and it is insufficient to recognize the remainder of the defendant's remaining arguments on the evidence No. 1 to No. 9 alone.

(d) Revocation of fraudulent act and reinstatement;

According to the above facts, the gift of this case should be revoked by fraudulent act.

On the other hand, since it is impossible to return the original property if another person acquired the ownership of the real estate in the auction procedure, it is impossible to return the original property. If the beneficiary received the dividend due to the termination of the distribution, the beneficiary shall be ordered to return the dividend. However, if the distribution schedule became final and conclusive but the beneficiary was not actually paid the dividend due to the provisional disposition prohibiting the creditor from paying the dividend, the beneficiary shall be ordered to transfer the dividend and notify the transfer of the claim

According to the facts acknowledged earlier, the distribution schedule against the defendant, who is a beneficiary, became final and conclusive due to the withdrawal of a lawsuit of demurrer against the plaintiff's distribution, but the defendant was not actually paid the dividend due to the prohibition of provisional payment of the plaintiff's dividends. Therefore, the defendant has a duty to notify this ○, that he transferred the dividend payment claim to the Republic of Korea and transferred the

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted for all reasons, and the judgment of the court of first instance, including the claim partially changed in the trial, shall be modified as above. It is so decided as per Disposition.