(영문) 의정부지방법원 고양지원 2021.2.17. 선고 2020가단78212 판결

1. A. A. Revocation of a sales contract concluded on December 11, 2018 with respect to the real estate indicated in the separate sheet between the Defendant and Nonparty B;

B. The Defendant will implement the procedure for cancelling the registration of cancelling ownership transfer, which was made as No. 147135 on December 14, 2018, with respect to the real estate described in paragraph (a), with respect to the Republic of Korea District Court Goyang Branch of the High Court.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Facts of recognition;

A. The plaintiff's claim against B

1) On December 23, 2010, B opened D (hereinafter referred to as “instant workplace”) in Youngcheon-si C’s third floor building (hereinafter referred to as “instant building”). On September 27, 2011, B established a joint workplace child care center on the first and second floor of the instant building and received subsidies from the Plaintiff for installation costs and operating expenses.

2) Upon the Plaintiff’s delegation, the Korea Workers’ Compensation and Welfare Service (Korea Workers’ Compensation and Welfare Service) and B received subsidies by admitting a child of a person other than the employee of the instant workplace into a workplace child care center on November 28, 2018, on the ground that: (a) revocation of the decision to support the establishment and operation of a workplace child care center on November 28, 2018; and (b) KRW 1,024,019,00 (=subsidies = subsidies KRW 22,660,000 (= subsidies + subsidies KRW 67,100,000 + Labor expenses and operation expenses (from December 2015 to June 2018).

296,313,00 won + Additional Collection Amounting to KRW 637,946,00 (the amount equal to the expenses for replacing teaching materials and teaching equipment, personnel expenses, and operating expenses)). The above disposition was served on B on November 29, 2018.

3) On December 26, 2018, the Korea Workers’ Compensation and Welfare Service rendered a decision to re-determine part of the personnel expenses and operating expenses from December 26, 2018, from December 2015 to August 2016, and from March 2017, with respect to the revocation of the decision to fully support the personnel expenses and operating expenses of March 2017, and returned the personnel expenses, operating expenses, operating expenses, 101,849,260 for the pertinent period, and additionally collects KRW 203,698,520 for the unlawful amount.

4) On January 14, 2019, Korea Workers’ Compensation and Welfare Service requested the Plaintiff to urge and compulsorily collect KRW 1,239,807,140,00, an amount excluding KRW 89,760,000, the sum of KRW 67,100,000, which was repaid from B, and the amount to be returned from B, and KRW 22,660,00,00, which was scheduled to be returned from B. On January 14, 2019. On January 30, 2019, the Plaintiff sent to B a letter informing the Plaintiff that the return of subsidies and the period of payment would be scheduled to be seized.

5) On November 28, 2018, and December 26, 2018, 2018, B filed a lawsuit seeking revocation of the decision to grant subsidies for workplace child care centers and the disposition to return subsidies following the disposition of unjust receipt of subsidies with respect to B, but the court of first instance (Seoul Administrative Court 2018Guhap89824) was sentenced to dismissal by the court of first instance (Seoul Administrative Court 2018Guhap89824). While B filed an appeal and appeal, the appeal on June 18, 2020 (Seoul High Court 2019Nu61245) was dismissed, and on October 29, 2020, the final judgment became final and conclusive as is.

B. Conclusion of a sales contract between the Defendant and B

1) On December 12, 2017, B entered into a contract with Nonparty F on the lease deposit amounting to KRW 420 million with the real estate indicated on the attached property (hereinafter referred to as “the instant apartment”) and the lease term from December 13, 2017 to February 12, 2020 (hereinafter referred to as “the instant lease contract”).

2) On December 11, 2018, the Defendant entered into a contract to purchase the instant apartment with a market price of KRW 500 million from B (hereinafter referred to as “instant sales contract”) and on December 14, 2018, entered into an ownership transfer registration based on the instant sales contract with respect to the instant apartment (hereinafter referred to as “instant ownership transfer registration”).

At the time of the conclusion of the instant sales contract, B had real estate worth KRW 815 million including the instant apartment as active property, and a vehicle worth KRW 4853,000,000,000,000,000 including the instant apartment, whereas on the other hand, B had a negative property such as a refund of subsidies and additional collection amounting to KRW 1,239,807.140,000, the obligation to refund the lease deposit amount of KRW 420,000

[Reasons for Recognition] Unsatisfy, Gap evidence 1 through 14 (including provisional number; hereinafter the same shall apply), Eul evidence 1 to 3, part of the witness B's testimony, the purport of the whole pleadings

2. The assertion and judgment

(a) Claims for preservation;

The plaintiff's claim for the refund of the subsidy of KRW 1,239,807,140 against B and the additional collection shall be the preserved claim of the creditor's right of revocation.

B. According to the fact that the fraudulent act and fraud of the tort were established, B had already been in excess of the obligation at the time of the conclusion of the instant sales contract, and the joint security for general creditors was reduced by disposing of the instant real estate at a price lower than its market price. Thus, barring any special circumstance, the instant sales contract constitutes a fraudulent act.

In regard to this, the Defendant determined that the amount of KRW 45,407,656 (=14,170,765 won +31,236,891 won) and the amount of KRW 59,782,653 (including KRW 450,000,000,000) was the total amount of KRW 17,433,827 of retirement allowance claims against D and KRW 17,433,82,653 of the amount of retirement allowance claims against B. The purpose of the instant sales contract is to obtain repayment or ability, and that the instant sales contract is not a fraudulent act, since the amount was not unfair salt. In addition, the Defendant’s testimony as stated in the evidence No. 11 and witness B alone alone, it is insufficient to view that the Defendant paid the amount after deducting his claim against D and B from the purchase amount. Even if the Defendant and B agreed to the above amount of the purchase amount, the Defendant deducted the above claim.

In light of the above property status, it is reasonable to deem that the obligor was aware that it would prejudice other creditors in light of the above property status, and the defendant's bad faith as a beneficiary is presumed to be a beneficiary.

Therefore, the sales contract of this case, which is a fraudulent act, is revoked, and the defendant, as a beneficiary, is obligated to implement the procedure for the registration of cancellation of ownership transfer registration of this case.

3. Conclusion

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

Judges

Judges Song Jae-ok

Note tin

1) Article 14(1) of the Infant Care Act and Article 6 of the Enforcement Rule of the same Act

2) Article 26 of the Employment Insurance Act, Article 38 of the Enforcement Decree of the same Act, and Article 59 of the Enforcement Rule of the same Act

3) Article 145(2) of the Enforcement Decree of the Employment Insurance Act

4) Article 35(2) of the Employment Insurance Act; Article 78(1)1 of the Enforcement Rule of the Employment Insurance Act