Daejeon District Court Decision 2014Gahap101357

Revocation of Fraudulent Act

a debtor's act of making a donation to his/her spouse of a real estate in excess of his/her liability constitutes a fraudulent act.

Article 406 of the Civil Act

Daejeon High Court 2015Na1133

1,160,545,140 Won 1,140 for the aggregate of the three collateral obligations of the above three collateral security at the time of the entire donation

The business cooperative shall have 560,545,140 won as collateral obligations against the right to collateral security + 2 credit cooperatives of the Ansan-gu.

It can be recognized that the sum of secured debt of the right to collateral security is KRW 600,000.

Therefore, AA's active property is a collateral security at KRW 1,494,600,000 in total value of the above real property.

(1) The secured debt amount of the above secured mortgage within the limit of the market value of the real estate owned by the

493,600,000 won (the aggregate of market prices of the lands Nos. 1 through 5 of Table 1) deducted from 1,001,000 won*

(E) [In relation to this, the defendant shall be liable for the secured debt of the above secured collateral.

It argues that only a debt of AA is not a debt of AA, and it should not be included in a small-sized property.

If the property owned by the debtor is provided as a physical collateral for another creditor's claim, the property

The portion offered as security is the debtor's liability property for the general creditors.

Therefore, the amount of the secured claim held by other creditors from the value of the property offered as the secured claim.

Since only the deducted balance is assessed as the obligor’s active property (see Supreme Court Decision 201Da1548, Jan. 12, 2012).

2010Da64792, supra, cannot be accepted)

B) Petty property

AAA’s capital gains tax liability of KRW 189,430,080 against the Plaintiff at the time of the entire donation of this case

B was borne as a small property.

C) Net amount

Therefore, AAA’s KRW 304,169,920 (493,60,000,00-189,430,080) at the time of the entire donation of this case

The amount of net assets was secured.

2) The nature of the entire donation of this case

A) Whether a divorce is deemed to be a false divorce

The plaintiff asserts that the divorce between the defendant and the AA is the most complicated divorce.

In full view of the aforementioned evidence and the purport of Gap evidence No. 10 and the whole pleadings, the defendant

A even after a declaration of divorce by agreement with AA on January 12, 2012 was filed, for AA on March 7, 2012:

- Appellants

Korea

Appellant-Appellants

Shoeuk-gu

Daejeon District Court Decision 2014Gahap101357 Decided March 13, 2015

December 10, 2015

January 21, 2016

1. Basic facts

The following facts do not conflict between the parties or between Gap's 1, 2, and 3-1 to 4, and Gap

Evidence 4, Evidence 6-1, 2, Evidence 12, 14, and 15, respectively, and the director of the tax office of the first instance court

the results of replies to the order to submit taxation information and the purport of the whole pleadings as a whole;

the corporation.

A. On May 5, 1969, the Defendant married with AA on January 12, 2012, which led to a divorce between the Defendant and the AA.

(b) The Director of the BB Tax Office shall DE with respect to AA on September 4, 2012, atCC on November 2009.

Transfer income from the transfer of land in this case (hereinafter referred to as the "transfer land in this case") 14-2 Large scale 412 square meters and 13 lots, etc.

The transfer income tax of KRW 189,430,080 (hereinafter referred to as the "transfer income tax of this case") is decided on the grounds that the transfer income tax of this case was

The notice was given.

C. AA on December 5, 201, 201, to the Defendant, the wife of this case, and FF pages at the time of the Real Estate andCC.

33 6,00 m2, 334 m2,010 m2,000 m2,000 m2,000 m2,000 m2

Real estate (hereinafter referred to as "real estate donation of this case") shall be donated (hereinafter referred to as "the entire donation of this case") on December 16, 201.

The registration of ownership transfer was completed.

D. 458,00,000 won in total at the time of the entire donation of this case on the entire real property of this case (this case’s death)

Land of 270,00,000 won in total, 333 140,000,000 won in total, and 334

48,000,000 won

E. AA paid only KRW 14,199,160 among the transfer income tax of this case, and around November 2015.

Warrant 261,405,940 won in total (189,430,080 won in capital gains tax)

It is the amount calculated by subtracting 14,199,160 won from 86,175,020 won.

2. The occurrence of the right to revoke the fraudulent act;

(a)the existence of preserved claims;

1) In principle, the obligor is entitled to a claim protected by the obligee’s right of revocation.

prior to the occurrence of a legal act for the purpose of property rights, with knowledge that such act would result in, but

There is already established a legal relationship which is the basis of the establishment of claim at the time of the legal act, and the close president.

In the future, there is a high probability of the occurrence of claims based on their legal relations;

in the nearest future, where a claim has been created due to the realization of the probability, the claim shall also be

Right of revocation may become a preserved claim (Supreme Court Decision 2000Da37821 Decided March 23, 2001).

see, e.g., Supreme Court Decision

2) The claim amount for which the obligee may exercise the obligee’s right of revocation is changed to fact-finding after the fraudulent act.

Interest or damages for delay incurred until the conclusion of the loan is included (Supreme Court Decision 2003Da203 delivered on July 11, 2003).

The additional dues prescribed in Article 21 of the National Tax Collection Act (see, e.g., Supreme Court Decision 19572) and the time limit for payment

as a kind of incidental tax imposed in the sense of interest in arrears, if not paid;

Article 21 of the National Tax Collection Act if national taxes are not paid by the due date without due procedure

as a matter of course, the transfer income tax claim is created and the amount thereof is determined, so that such claim is a creditor.

As long as it is recognized as a preserved claim of the right to claim, the court of fact-finding after the fraudulent act

Additional charges incurred until the determination also include preserved claims (Supreme Court Decision 2000Du2000 Decided September 22, 2000)

2013 see Supreme Court Decision 2013

3) We examine the instant case based on such a legal doctrine.

Income tax on which preliminary return and payment are made, such as transfer income tax, shall be the tax base;

Article 21 of the Framework Act on National Taxes is abstractly established on the last day of the month in which the amount of tax has occurred.

2) Paragraph 2 of this case. The obligation to pay the transfer income tax of this case is the month in which AA sells the transferred land of this case.

On November 30, 2009, the legal relationship which forms the basis of the occurrence has already been established abstractly.

from that time, the Plaintiff’s claim following the imposition of the transfer income tax of this case was nearest in the future.

It can be seen that there was a high probability to occur.

In fact, the Plaintiff imposed the instant capital gains tax on AA on September 4, 2012.

B and its probability is realized, and the Plaintiff's transfer income tax claim against AA was established.

(A) The Defendant asserts that the sale date of the instant land was not close to the date of the said disposition; but

The above-mentioned difference also to the extent that the secured claim against fraudulent act can be recognized.

section 38(3).

Therefore, the transfer income tax of this case and the preservation claim for the exercise of the plaintiff's right of revocation of fraudulent act

It shall be 261,405,940 won after deducting the amount paid from the additional dues.

B. Establishment of fraudulent act

1) The status of the property of AA

(A)affirmative property;

The records and arguments in Gap evidence Nos. 5-1, 2, and 8-1 to 4

In full view of the overall purport of the AA’s property details at the time of the entire donation, the following:

[Attachment 1] Facts as described in [Attachment 1], and land Nos. 1 through 5 among them shall be balanced for the debtor as Kim Jong-Un.

The right to collateral security (the maximum amount of claim 715,000,000) established in the future of the Home Farming Cooperative and the Ansan-do Council

Two collateral security established in the future of a credit union (the maximum debt amount shall be 390,000,000)

A company that provided two parcels of land, such as F.C. F. F. 33, 334, as a water collateral in the possession of the company

Resident registration shall be filed in the address where AA had resided with the Defendant even after the report of divorce by agreement was filed.

the transfer from August 30, 2012 to a new address is recognized.

section 1.

However, entry of Note B 2, 3, Eul evidence 4-1 to 4, Eul evidence 5-1 and 2;

In full view of the testimony of the witness AA of the first instance trial, AA shall take into account the overall purport of the pleading.

and without prior approval, the real estate owned by AA and the purchase price is used at will.

The fact that the extinguishment between AA and the defendant has deepened, and the defendant as a class 2 person with a brain lelethal disability

For this reason, the fact that AA had to attend the defendant for more than one year after divorce.

may be recognized, etc.

under such circumstances and by a genuine agreement between the parties intending to resolve the legal marital relationship

as long as a divorce has been reported by agreement, both parties shall be deemed to have different purposes in divorce by agreement.

shall not be deemed to have no intention to divorce, and therefore the divorce by agreement shall not be null and void.

The Supreme Court Decision 2011Da80708 Decided February 9, 2012 (see Supreme Court Decision 2011Da80708, Feb. 9, 201). Whether a divorce by agreement

The Family Relationship Registration Act shall apply upon the confirmation of the Family Court with respect to such matters as prescribed by the Family Relationship Registration Act.

As the declaration provides that the effect of divorce shall be achieved by agreement, the divorce shall be the best divorce.

To be deemed null and void, there should be special circumstances that anyone is able to receive, and not so;

see that there was an intention to temporarily divorce between the divorce parties under the law of the Republic of Korea;

In light of the legal and de facto importance of divorce declarations (Supreme Court Decision 28 February 28, 2013).

In light of the Supreme Court Decision 2012Da82084 Decided January 2, 201, etc., the recipient who has difficulty in body as seen earlier.

Material and body between AA and AA whose economic situation is difficult due to division of property following high divorce;

Defendant and AAA merely have been maintained at all times even after the divorce.

The only divorce without any intention to resolve the marital relationship between husband and wife under the laws of the Republic of Korea.

It is insufficient to recognize it as one.

B) Division of property following the divorce by agreement and its reasonableness

(i)A party which has not yet been divorced has agreed to divorce by future agreement and before that agreement;

In the case of consultation on the division of property under section 1, unless there are special circumstances

Conditional declaration of intention by agreement between the parties on condition that divorce shall be achieved by agreement between the parties;

[Plaintiff-Appellant] The plaintiff-appellant is the plaintiff-appellant (see, e.g., Supreme Court Decision 95Da23156, Oct. 12, 1995) and the plaintiff-appellant.

According to factual relations, according to the purpose of division of property under the premise of divorce on December 5, 201 by Defendant and AA.

on January 12, 2012, after approximately one month after the donation of this case, consultation between the defendant and AA on January 12, 2012

Since the divorce has been actually established, the entire donation of this case is 'the donation before the date of divorce report'.

Although it takes the form of a property division agreement, it constitutes a property division agreement entailing actual divorce.

may be seen.

In addition, division of property in divorce shall have the real effect that the married couple had in the marriage.

To contribute to the maintenance of the other party's livelihood at the same time as the common property is liquidated and distributed;

However, mental damage suffered due to divorce by the division's act of liability.

property division may be divided, including the nature of such payment for property division.

amount and method of the property created by mutual cooperation of both parties, and any other amount and method thereof.

Property division is clear in light of the provisions of Article 839-2(2) of the Civil Act to take into account the circumstances.

corporation may become insolvent if the corporation has already been in excess of its liabilities or if any property is divided.

In the case of a division, the amount of debt to be borne by the division and to the extent of the formation of the common property.

It is possible to determine the amount and method of division of property, including whether or not there is a division of property.

When the debtor becomes insolvent by division of property, and the joint security against the general creditor is reduced.

Article 839-2(2) of the Civil Act, even if the division of property would result, the purport of such provision is

Property which is excessive to the extent that it is not reasonable, and property division is made by the Gu office.

Unless there is any special circumstance that it is deemed a disposition, the object of creditor's right of revocation is a fraudulent act.

The subject of creditor's right of revocation as a fraudulent act under such special circumstances as above.

(b) The scope of revocation shall be limited to the portion exceeding the reasonable part.

[Defendant-Appellant-Appellee-Appellant-Appellee-Appellee-Appellant]

B. Based on these legal principles, the instant case is examined.

Amount of net assets at the time of the entire donation of AA is KRW 304,169,920, and the preceding amount of net assets at the time of the entire donation.

according to the evidence and the purport of Gap evidence No. 9-1 to No. 4 and the whole pleadings, the defendant

The active property at the time of the donation as a whole shall be as listed below [Attachment 2], and the fact that there is no passive property

may be recognized.

The details of the sequence of property shall be the market price on the date the owner acquired ownership.

1 F.F. CC 239-1 1,585 square meters in response to 239-1

August 24, 1994

28,530,000

2CC F. F. F. 2 15,354,000 square meters 239-2 Doz. 853 square meters

3 F. F. CC 240-1 2,403 square meters 45,416,700

4F-4 large 240-4 large 661 square meter 36,355,000

Total 125,655,700

As to this, the plaintiff's active property of the defendant or AA is unique property acquired in his/her own name.

as it is alleged that the property is not subject to division of property, and the defendant also has the same relation to the small property.

I asserts whether or not.

However, in full view of the above evidence Gap evidence No. 4 and the whole purport of the pleading

In addition, not only the defendant was in full charge of household affairs as the mother of the second male and female, but also the deaf of the AA.

Do-sharing and recognizing the fact that it is difficult to move as a person with a disability of grade 2 in the current brain disease;

In such circumstances and the marriage period and divorce of the Defendant and AA expressed in the facts of Pinin as above;

In full view of the background leading up to the division of property and the nature of the support and support materials included in the division of property, the defendant and Kim

It is deemed that a chain has contributed actively to the acquisition or preservation of active property under his/her own name.

Since it is reasonable, regardless of the name, all of the married couple's joint property is subject to division of property.

c) must be viewed as high.

Therefore, the defendant shall claim a division of property against 1/2 of the net property value of the couple's joint property.

As such, 429,825,620 won (AA's net assets amount of 304,169,920 won and the defendant's net assets amount of the AA's net assets.

125,655,700 won in total) The net value of the common property of the defendant couple is the net value of the common property of the defendant couple, and the defendant

A/2 of 214,912,810 won (429,825,620 x 1/2) shall have the right to claim division of property, and the defendant shall have the right to claim division of property.

Before the entire donation of this case, property equivalent to KRW 125,655,700 in its own name was already owned.

Therefore, with respect to the entire real estate of this case, the right to claim the division of property cannot be limited to the above right.

89,257,10 won (214,912,810 - 125,65,700) of reasonable division of property that the defendant is entitled to receive

amount is the amount.

However, the Defendant received property division equivalent to KRW 458,000,000 as the entire donation of this case.

Therefore, the above 89,257,110 won exceeding the above 89,742,890 won (458,00,000 - 89,257,110)

Division exceeds a reasonable scope as a division of property in light of the purport of Article 839-2(2) of the Civil Act.

In this respect, the result of reducing the joint security against general creditors as insolvent by AA.

As such, division of property within the above scope can be seen as a fraudulent act.

3) The intention of the AA to commit suicide and the defendant's bad faith.

In revocation of a fraudulent act, the intent to commit an act of disposal of the debtor's property, which is a subjective requirement

(2) In the event that there is a shortage or shortage in the joint security of claims due to the decrease in its assets;

the creditor's claims can not be fully satisfied due to the lack of the joint security;

Recognizing the fact that the beneficiary is a bona fide beneficiary, and with respect to the fact that the beneficiary is a bona fide beneficiary, the beneficiary

He/she is responsible for proving himself/herself (see, e.g., Supreme Court Decision 2012Da107198, Apr. 11, 2013).

In light of the circumstances surrounding the aforementioned fraudulent act, AA is a person with the entire donation of this case.

Recognizing the circumstances that the Plaintiff et al. would prejudice the general creditors due to the decline in their assets.

As long as AA's intention of harm is recognized, the defendant who is the beneficiary is presumed to be malicious.

In regard to this, the defendant, the defendant, a purchaser of the transferred land of this case, shall develop the macro-industry.

The term "large Industrial Development" (hereinafter referred to as "large Industrial Development") caused AA to be responsible for capital gains tax by the same company.

Therefore, AA was not aware of how the capital gains tax is imposed, and therefore AA was therefore subject to it.

B. The defendant asserts that he did not have any intention of death at the time of the entire donation of this case

(c)

In full view of the aforementioned evidence’s aforementioned testimony and the purport of the whole pleadings by the witness of the trial court;

The contract deposit for the transferred land of this case is to be made by AA on January 20, 2009 to the Mimchi Industrial Development.

100,000,000 won (date of payment contract), intermediate payment of KRW 70,000,000 (by February 28, 2009), Balance

The gold 1,470,000,000 won (not later than April 30, 2009) was paid respectively, but the Scie industry was the same.

As the development did not pay the purchase price on the date of the above payment, the purchaser on March 10, 2009 as the purchaser was changed to the macro-industry.

Of intermediate payment of KRW 200,000,000 (not later than April 30, 2009), the remainder of KRW 1,440,00,000 (not later than April 30, 209)

In changing to the payment date until June 23, 2009, half of the transfer income tax in filing a return on the transfer income tax shall be every time.

There are several persons responsible for the addition of the special agreement."

However, even if based on the above facts of recognition, AA made the entire donation of this case and made the donation of this case.

It did not recognize that the disposition of capital gains tax is to be imposed on the seller of the transferred land.

In addition, AA and Scam Industrial Development shall not be deemed to have been the time limit for payment of price for the above sale.

The transfer income tax of this case is modified and half of the transfer income tax is assessed against the company.

As can be seen, Kim, the debtor at the time of the entire donation of this case, can be deemed to have predicted the approximate amount.

It is difficult to accept the defendant's argument on the deceased's will to commit suicide or the reversal of the defendant's bad faith.

D. Sub-determination

The scope of revocation and return of a fraudulent act shall be limited to the amount of preserved bonds, except in extenuating circumstances.

Since it is limited (see, e.g., Supreme Court Decision 2006Da1442, Nov. 13, 2008), the amount of preserved claims by the Plaintiff.

261,405,940 won and the total donation of this case exceeding the reasonable division of property prior to the death of the entire donation of this case

and 48,515,460 won, the market price of the instant real estate for which the Plaintiff seeks revocation, 270,000,000

261,405,940 won, whichever is less, the creditor's revocation of the gift contract of this case within the limit of KRW 261,40.

rights may be exercised and sought to reinstate them.

3. Methods and scope of reinstatement;

If a creditor’s revocation of a fraudulent act and a claim for restitution are recognized, the beneficiary or subsequent purchaser shall be deemed to be the original creditor.

As a result, the object of the fraudulent act is liable to return it to the debtor, and the return of the original object is not possible.

If such duty is significantly impracticable, the value of the object of the fraudulent act as performance of such duty

considerable amount of compensation (see, e.g., Supreme Court Decision 2007Da29119, Jul. 26, 2007).

Division of property within a reasonable extent that the Defendant may receive even during the value of the instant real estate

Since the above real estate is included, it is impossible or substantially difficult to return the original property.

It can be seen that it can be seen that it is.

Therefore, the method of restitution following the cancellation of fraudulent act against the gift contract of this case by the plaintiff

Compensation shall be equivalent, and its scope shall be 261,405,940 won, the limit of revocation of a fraudulent act, so that they shall be subject to compensation.

Gohap 261,405,940 Won 261,40,000 and its payment shall be made to the Plaintiff on the day after the day this judgment became final and conclusive

There is an obligation to pay damages for delay calculated at the rate of 5% per annum under the Civil Act by the date.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition and the remainder of the agency

Since the Gu has no reason to dismiss it, the judgment of the court of first instance has partially different conclusions; and

It is decided as per Disposition by the court of first instance on the ground that there was a change in the claim at the trial.

shall be ruled.