payment of the instant money to the defendant who is the spouse of the debtor is a donation contract, and constitutes a fraudulent act.

The monetary payment of this case against the defendant, who is the spouse of the debtor, shall be deemed to have entered into a donation contract, and since the debtor had been in excess of his/her obligation at the time of paying the monetary payment, and the debtor aggravated his/her obligation due to the above monetary payment, it shall be deemed that such act was prejudicial to other general creditors at the time, and since the defendant's bad faith is presumed to be a beneficiary, the donation contract constitutes a fraudulent act.

2011 Gohap 19252 Revocation of fraudulent act

Korea

Jeonn

August 21, 2012

September 11, 2012

1. The contract of gift of KRW 000 entered into on July 9, 2007 between the defendant and the non-party A shall be revoked.

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

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

The same shall apply to the order.

1. Facts of recognition;

A. Tax claims against the Plaintiff OA

(1) On January 24, 2007, the head of the Seo-gu Daejeon District Tax Office transferred the building and its ground-based building no longer than 00,000 square meters (hereinafter referred to as the "Seosan-Eup site") to Dong-do Seoul Special Metropolitan City 00-0, 1451 square meters (hereinafter referred to as the "Seosan Special Metropolitan City") on January 24, 2007. On July 10, 2007, he confirmed that the return of the amount of income was omitted, and on October 7, 2010, on the aggregate of 00 won for global income tax of 200,000 won for 00,000 won for non-reported global income tax of 00,000 won for 200,000 won for non-reported and non-paid additional tax of 20,000 won for 20,000 won for non-reported land (hereinafter referred to as "the additional tax of this case").

B. Details of deposits, etc. made by the AA to the Defendant

On July 6, 2007, OA paid KRW 000,000, which is a part of the purchase price of the building site of Kusan-Eup and withdrawn KRW 000 on July 9, 2007, and received 1,000 won 1,000 won 1,000 won / 4 / deposited KRW 1,000 in the Namcheon Agricultural Cooperative (hereinafter referred to as the “instant account”) in the name of the Defendant, a legal wife, around July 10, 2007 (in addition to the above money, 00 won was deposited in the said account with KRW 6 million). On July 10, 2007, OA paid KRW 00 for repayment of loans to the Defendant’s O insurance company (hereinafter referred to as “the instant payment and payment by adding up the above deposits and payments”).

C. The financial status, etc. of the AA

(1) On July 9, 2007, around the time of the payment of the instant money, the active and negative property of the Lao (excluding the sum total of the instant global income tax and additional tax KRW 000) are as follows.

(2) As of the date of the closing of argument in the instant case, OrA did not pay a total of KRW 000 and KRW 000 as well as capital gains tax of the instant global income tax and additional tax.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 6, 8, 10 through 13 (including each number), the purport of the whole pleadings

2. The parties' assertion and judgment

(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 prior to the commission of an act that can be viewed as a fraudulent act in principle, it is highly probable that at the time of the fraudulent act, there has already been a legal relationship that serves 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 a claim has been created as a result of its realization in the near future, the claim may also become a preserved claim (see, e.g., Supreme Court Decision 97Da3434, Oct. 28, 1997).

First, the obligation to pay global income tax is established when the taxable period expires (Article 21(1)1 of the former Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007; hereinafter the same shall apply). The obligation to pay global income tax of this case was established on December 31, 2007, which is after the date of the donation contract of this case. However, even though the tax liability of this case was established on December 31, 2007, the legal relationship which forms the basis of the establishment of the claim has already been established in the near future, and it is highly probable that the claim should be established on the basis of such legal relationship in the near future, and the tax claim is established in the near future (see, e.g., Supreme Court Decision 2004).

9. See Supreme Court Decision 2004Da12004, June 29, 2007; Supreme Court Decision 2006Da66753, Jun. 29, 2007.

Then, as seen earlier, the legal relationship, which is the basis for the occurrence of claims for non-declaration and non-performance penalty tax pursuant to Article 47-2 and 5 of the former Framework Act on National Taxes, has already been established by transferring the site owned by the OA to XX prior to the payment of the instant amount to the Defendant. In addition, it can be seen that the OA had not made provisional return under Article 69 of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009) within two months from the end of the month in which the date of sale of the site in the Kusan-Eup City belongs (amended by Act No. 9897, May 1, 2008; - May 31, 2008) and thus, it can be seen that the final return of the instant global income tax was not made in the future and that the instant claim is highly probable, and that the instant additional tax would not be established in light of the probability that the final return of tax return was made in the future.

(b)whether a fraudulent act constitutes a fraudulent act and whether an intention to commit suicide exists;

(1) The insolvency of the AA; or

According to the above facts, OrA’s passive property including the global income tax and additional tax at the time of the payment of the instant amount exceeds the positive property of KRW 000 (=00 +000). In addition, OrA had already been in excess of its liability, and OrA’s payment of the instant amount led to further deepening of its debt.

(2) Whether the fraudulent act was constituted

(A) The parties' assertion

The plaintiff asserts that Ora paid KRW 000 to the defendant is a donation made by Ora to the defendant by subrogation of the defendant's obligation to the O insurance company, so that the plaintiff paid KRW 000 to the defendant by subrogation of the defendant.

In regard to this, the defendant asserts that, as the defendant used the above loans in the name of the defendant, the actual borrower of the above loans is OrA, which shall not be deemed to have made a donation to the defendant, and ② even if the above loans are not personal obligations of OrA, OrA shall be deemed to have paid the above loans and KRW 000,000,000, paid to the defendant, may be deemed to have paid the above loans. In this case, even if the above loans are not personal obligations of OrA, OrA shall be deemed to have paid the above loans, and it shall not be a donation to the defendant, and ③ even if not, the payment of the above amount was made by division of property according to divorce, and the amount paid does not exceed a considerable degree, so it shall not be deemed to have been fraudulent act.

(B) Determination

1) First of all, according to the health account and evidence evidence evidence Nos. 3 through 5 as to whether the above loans are the actual debtor of the above loans, it is recognized that a certain amount has been transferred from the instant account after obtaining a loan of KRW 000 from the O Insurance Co., Ltd. on January 31, 2005, and on the other hand, according to each of the above evidence, the instant account was opened in the name of the defendant, and even when receiving a loan from the OO insurance Co., Ltd. or repaying interest and principal, it is recognized that each of the above acts was conducted in the name of the defendant. Thus, the above facts alone are insufficient to recognize that the above act was conducted in the name of the defendant, in view of the fact that the above act was conducted in the name of the defendant.

2) Next, with respect to the fact that the AA performed the obligation under the name of the husband and wife as the obligor of the AA’s daily living, the obligation borne by the husband and wife under his/her own name shall be deemed to be his/her own limited liability, unless it is recognized as the obligation due to the daily living or the cost required for the common life of the husband and wife. In the case of the above loan, it is insufficient to recognize the above loan as the obligation due to the daily living expenses only with the statement of the evidence No. 2-2, No. 6, and No. 9 (including the number of branches), and there is no other evidence to acknowledge it. Rather, the fact that the Defendant received the loan under his/her name is recognized as the above, and even if the Defendant used the above loan for the daily living expenses, it is merely a method of using it

3) Lastly, examining whether the instant monetary payment was made as a division of property, according to the statement in the evidence No. 9, it can be recognized that the agreement was reached on March 4, 2008, and that the instant donation contract, which was made on July 9, 2007, was made through the agreement on division of property.

4) Therefore, the instant monetary payment made by Ora against the Defendant constitutes a gift contract, and the said gift contract constitutes a fraudulent act.

(c) Presumption of intention and bad faith;

(1) As seen earlier, OraA was in excess of its obligation at the time of paying the instant monetary amount, and the said monetary amount aggravated the status of excess of its obligation due to its payment, and OraA knew that such an act was prejudicial to other general creditors at the time, and is presumed to have been maliciously committed by the Defendant, a beneficiary.

(2) As to this, the Defendant asserted that, at the time of the payment of the instant amount, it was difficult for Ora to expect that the instant amount would not be paid the global income tax and additional tax, and that most of the said money was used as living expenses for Ora and the Defendant’s communal living, the Defendant did not know that the instant amount was an act detrimental to other general creditors including the Plaintiff.

On the other hand, the following circumstances acknowledged by the above evidence, i.e., that were sold real estate as a real estate sales broker, and where the amount of global income tax or transfer income tax to be imposed on OA and the amount of additional tax is not reported and paid, it was well known that OA had been imposed. The defendant also known that OA had been the wife of OA, and the defendant could have been well aware of such circumstances. ② Even if OA had applied the additional tax rate of the general non-reported penalty tax, 20% of the additional tax rate of the general non-reported penalty tax, and no penalty tax was imposed in bad faith, the small property at the time of the donation contract of this case was 00 won (=00 global income tax of this case + expected general non-reported penalty tax.

3. Conclusion

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