Whether division of property due to the divorce between parties is excessive or not must be proved by the plaintiff.

Unless special circumstances such as divorce is revealed, it is reasonable to see that the agreement is a division of property following the divorce, and in order to recognize the donation contract of this case as a fraudulent act, the plaintiff must prove that the donation of the real estate of this case is a division of property exceeding the considerable extent in accordance with the above legal principles.

2013 Ghana 103473 Revocation of fraudulent act

Korea

Park AA

June 28, 2013

July 19, 2013

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

Cheong-gu Office

1. The gift agreement concluded on September 23, 2008 between the non-party SongB and the defendant is revoked with respect to the share of 54/327 square meters out of 327 square meters O-dong O-dong O-dong O-si O-si O.

2. The defendant shall implement the procedure for the registration of ownership transfer on the ground of the restoration of the true name with respect to the portion of 54/327 square meters out of 327 square meters in OO-dong O-dong O-dong O-dong OB to the non-party SongB

1. Basic facts

A. On February 26, 2008, SongB also sold OOB a 136 square meters of 114 O-Eup O-gun OO-gun on June 30, 2008, OO also sold OOO-gun 496 square meters of 40-3 forest land in O-gun O-gun, OO-gun on July 30, 208, and OO also sold OO-gun 95-1 forest land in 95-1 forest land in O-gun, 39 square meters for each of the above real estate to OO-gun, and it did not pay capital gains tax imposed on each of the above gains.

B. On September 26, 2008, SongB completed the registration of transfer of ownership based on the gift made on September 23, 2008 (hereinafter “the gift contract of this case”), which was September 23, 2008, with respect to 54/327 shares out of 16-28 Mao-dong OO-dong OO-dong 16-28 Mao-dong (hereinafter “the real property of this case”).

C. On December 2, 1982, the Defendant reported marriage with BB on December 2, 1982, and reported marriage by agreement on October 31, 2008.

[Grounds for Recognition: Evidence Nos. 1, 2, 4, Evidence No. 1, Evidence No. 2-1, and No. 2-3, the purport of the whole pleadings]

2. The parties' assertion and judgment

A. The parties' assertion

The Plaintiff asserts that SongB’s gift agreement of this case, which donated the instant real estate to the Defendant in excess of its obligation, constitutes a fraudulent act. Accordingly, the Defendant asserts that the instant gift agreement was made under the pretext of division of property following divorce, and that it does not exceed considerable extent in light of the period of marriage and the circumstances of acquisition, etc., and thus does not constitute a fraudulent act.

B. Determination

1) Although there is a result of reducing the joint security against the general creditor by transferring a certain property to one’s spouse as a result of the division of property in the divorce, the above division of property is not subject to revocation by a creditor as a fraudulent act, unless there are special circumstances that may deem that the above division of property is excessive beyond a considerable degree according to the purport of Article 839-2(2) of the Civil Act, but it cannot be subject to revocation because it cannot be deemed a legitimate division of property with respect to the portion exceeding a considerable degree as above. The burden of proving that there are special circumstances that it is excessive division of property beyond a considerable degree is the creditor (see, e.g., Supreme Court Decisions 200Da14101, Jul. 28, 200; 206Da3258, Sept. 14, 2006).

2) As seen earlier, in light of the fact that SongB donated the instant real estate to the Defendant and declared a divorce after the lapse of one month from the donation, it is reasonable to deem that the instant real estate was the division of property following the divorce between the SongB and the Defendant, unless special circumstances, such as the divorce is revealed, such as the divorce between the parties. Therefore, in order to recognize the instant donation contract as a fraudulent act, the Plaintiff should prove that the donation of the instant real estate was excessive division of property beyond a considerable degree in accordance with the above legal doctrine.

In light of the fact that: (a) the Defendant reported the marriage with SongB on December 2, 1982; and (b) on October 31, 2008, SongB reported the divorce; (c) on February 26, 2008, OB also sold 114,000 OO-type 136,000 OB on June 30, 208, OB; (d) on June 30, 2008, OE 40-3,000-3,000 496 square meters of 46,000 O-type 96,000,000,0000 for 15,000,0000,000,000 won for 15,000,000,0000,000 won for 19,000,0000 won for 9,000,000 won for 19,000

As revealed in the above facts, in light of the following facts: (a) the marriage period between the SongCC and the defendant was about 26 years; (b) the SongB disposed of each of the above real estate acquired during the marriage period from eight months prior to the divorce; and (c) the value was up to 132,80,000 won; and (d) there is no evidence to deem that the Defendant acquired each of the above real estate proceeds or property other than the instant real estate through the division of property, while a divorce between the parties, there is no evidence to deem that the gift of the instant real estate was excessive division of property beyond a considerable degree; and (c) there is no evidence to acknowledge otherwise, the Plaintiff’s above assertion is without merit without any need to examine the other parts.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.