agreement on division of inherited property shall be subject to a fraudulent act.

The agreement on the division of inherited property that renounces the share corresponding to his/her share in excess of the debt constitutes a fraudulent act that causes the reduction of joint security for the general creditors, including the plaintiff.

Article 30 of the National Tax Collection Act (Cancellation of Fraudulent Act and Restoration to Original State)

2018 Ghana 37475 Revocation of Fraudulent Act

Korea

○ ○

2019.07.04

2019.08.29

1. As to shares in 2/9 of the real estate listed in the separate sheet Nos. 1 through 5

A. The agreement on the division of inherited property concluded on September 16, 2014 between the Defendant and ○○○ on September 16, 2014 is revoked within the limit of KRW 57,298,035, and:

B. The defendant shall pay to the plaintiff 57,298,035 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

2. As to the share of 2/9 out of the real estate in the attached list Nos. 6 through 9

A. The agreement on the division of inherited property concluded on September 16, 2014 between the Defendant and ○○○○ on September 16, 2014 is revoked;

B. The Defendant shall implement each procedure for registration of cancellation of ownership transfer registration, which was completed on September 22, 2014 by AAA District Court BB registry office, as the receipt of No. 17161.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 3/4 is assessed against the Defendant, and the remainder is assessed against the Plaintiff.

Cheong-gu Office

The agreement on the division of inherited property concluded on September 16, 2014 between the defendant and the non-party ○○○ on the share of 2/9 of the real property stated in the Disposition Nos. 2 and the Attached List Nos. 1 through 5 shall be revoked, and the defendant shall pay to the plaintiff 73,583,153 won and its equivalent at the rate of 5% per annum from the day after the date this decision is finalized to the day of complete payment.

1. Facts of recognition;

A. On April 7, 2010, ○○○ operated a manufacturing business of equipment, such as semiconductors, under the trade name “CC C.C.C.C.C.” around December 31, 2012, the closure of business around December 31, 2012, the amount of value-added tax, global income tax, etc. was unpaid, and the amount of national tax in arrears around December 2018 reaches KRW 129,02,760.

B. The real estate listed in the attached list (hereinafter referred to as “the real estate in this case”) was owned by the deceased Do○○○○○○, a spouse, the Defendant, ○○○○, a dedicated unit, and a place where the place where the real estate was close close, and the Defendant’s statutory share of inheritance was 3/9, and the statutory share of inheritance by ○○○○○ is 2/9.

C. On August 19, 2014, co-inheritors held an agreement on the division of inherited property with the content that the Defendant independently succeeds to the instant real estate (hereinafter referred to as “instant agreement on the division of inherited property”), and around September 22, 2014, the registration of transfer of ownership due to the inheritance due to the division in consultation with the Defendant was completed (hereinafter referred to as “instant registration of transfer of ownership”).

D. Around August 2015, the total market price of the real estate in the separate sheet Nos. 1 through 5 is KRW 331,124,200 in total, and KRW 28,349,50 in total, the officially announced value of the real estate in the separate sheet Nos. 6 through 9, and KRW 359,473,70 in total, and KRW 73,283,040 in total, as to the secured debt for the real estate in the separate sheet Nos. 1 through 5 in the separate sheet.

E. ○○○ was in excess of the obligation at the time of the instant agreement on the division of inherited property, and there was no particular property among the instant immovable property, except for KRW 63,597,924.

F. As to the real estate listed in the separate sheet Nos. 1 through 5, the debtor △△△△△, and each collateral security by the debtor BB agricultural cooperative of the mortgagee BB had been entirely cancelled after the agreement on the division of the inherited property of this case (as for the real estate listed in the separate sheet Nos. 1, 2, and 5, around June 12, 2015, the attached list Nos. 3 and 4, March 16,

G. around June 12, 2015 with respect to real estate listed in the separate sheet Nos. 1, 2, and 5 around that time, a new collateral security was created with respect to real estate listed in the separate sheet Nos. 3, and 4, on March 15, 2018.

Facts without any dispute arising in recognition, Gap 1 through 3, Eul 1 through 3, and 6 (including where there is a serial number), the result of a request for market price appraisal to the Gyeonggi Appraisal Office of this Court, the purport of the whole pleadings 1)

2. The parties' assertion

As the agreement on the division of inherited property of this case constitutes a fraudulent act, the agreement on the division of inherited property of this case, which was concluded with respect to the shares of ○○○○’s inheritance among each real property of this case, shall be revoked. The plaintiff is obligated to pay 73,583,153 won as compensation for the equivalent value with respect to the real property of the attached list 1 through 5 as to the restoration of the original state, and the defendant’s ownership transfer registration should be revoked with respect to the

In regard to this, the Defendant filed the instant lawsuit with the exclusion period of one year from the date on which the Plaintiff became aware of the cause for cancellation, and concluded an agreement on the division of inherited property with the knowledge of the obligation of ○○○○○○○, thereby not falling under the cause of death, and even if so, it should be revoked within the limit of KRW 16,38,657, which is the actual share of inherited property.

3. Determination as to whether the exclusion period expires

As seen earlier, the instant agreement on the division of inherited property was concluded around August 2014, and on August 17, 2018, after one year from the Plaintiff, the Plaintiff filed the instant lawsuit. However, there is no evidence to acknowledge that the Plaintiff was aware of the agreement on the division of inherited property prior to one year from the filing of the lawsuit. Thus, the Defendant’s assertion is without merit.

4. Determination on the cause of the claim

A. Whether the fraudulent act was established

(i) A preserved claim;

The case where the Plaintiff has a claim against ○○○ for the assignee-transfer-off, as seen earlier, is one of the claims already occurred prior to the agreement on the division of inherited property of this case, and thus the obligee’s right of revocation becomes a preserved claim.

(ii)the intent to commit fraudulent acts and to commit fraud;

A) Relevant legal principles

As a matter of its nature, an agreement on division of inherited property becomes final and conclusive with respect to inherited property which has been provisionally owned by co-inheritors upon commencement of inheritance as a sole ownership of each inheritor or as a new co-inheritors, the ownership of inherited property is for the purpose of property rights (see Supreme Court Decision 2000Da51797, Feb. 9, 2001). Meanwhile, barring any special circumstance, an obligor’s act of selling real estate, which is one of its sole property, and changing it with or without compensation, becomes a fraudulent act against a creditor (see Supreme Court Decisions 200Da41875, Apr. 24, 2001; 200Da17937, Jun. 11, 2002; 2002Da17937, Jun. 11, 2002; 2007Da37844, supra, if an obligor, in excess of debt, waives his/her sole inherited property and did not have any specific intent to consume it with respect to the obligee.

B) Determination

In light of the above legal principles, the Health Unit, ○○○, who renounced 2/9 shares of the instant real estate in excess of his/her share and transferred it to the Defendant. This constitutes a fraudulent act that causes a decrease in common security for general creditors including the Plaintiff, and the Defendant’s bad faith, who is the debtor and the beneficiary, is presumed.

In this regard, the defendant did not know about the excess of the debt of the margin, and thus, the defendant's argument is without merit. However, the evidence submitted by the defendant alone is insufficient to recognize that the defendant is bona fide, and there is no other evidence to recognize it.

(b) Revocation of fraudulent act and reinstatement;

1) Legal principles

In a case where a legal act on real estate constitutes a fraudulent act, in principle, cancellation of the fraudulent act and cancellation of the registration of transfer of ownership, etc., in principle, the fraudulent act shall be deemed to be established only within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate in the event a fraudulent act was committed with respect to the real estate on which the mortgage is established. Therefore, in a case where the registration of creation of a mortgage was cancelled by repayment, etc. after a fraudulent act, order cancellation of the fraudulent act and restoration of the real estate itself would be an order to recover the portion that was not originally constituted a joint security of the general creditors, and would result in a violation of equity. Thus, in the event that order to restore the real estate itself by revocation of the fraudulent act is an order to recover the portion that was not a joint security of the general creditors, the amount of the secured debt shall be deducted from the value of the real estate, and the compensation

In the event that a contract to sell and purchase several real estate jointly mortgaged constitutes a fraudulent act and the entire immovable property, which is the object of a fraudulent act, is transferred to the same person by a single contract, the calculation of the amount of secured claims to be deducted from the value of real estate is not an issue as the sales contract which is the object of a joint mortgaged part. Therefore, barring any special circumstance, the calculation of the amount of secured claims following the cancellation of a contract is a considerable method consistent with the intention of the revocation creditor by deducting the total amount of secured claims of joint mortgages from the total value of the target real estate from the total value thereof (see, e.g., Supreme Court Decision 2012Da7

2) Determination

(A) 1 to 5 real estate listed in the separate sheet

As seen earlier, the real estate listed in the separate sheet Nos. 1 through 5 was either impossible or considerably difficult to return its original property due to the cancellation of the registration of the establishment of a new mortgage and the registration of the establishment of a new mortgage of the non-party BB agricultural cooperative following the agreement on the division of the inherited property in this case. Therefore, the restitution of the original property should be revoked within the extent of the balance remaining after deducting the amount of the secured debt from the value of

If the defendant deducts KRW 73,283,040 as the secured debt amount from the value of the real estate in the above attached list, 257,841,160 won (=331,124,200-73,283,040). Since the share of ○○○○○’s inheritance reaches 57,298,035 won (=257,841,160 x 2/9), the defendant shall be liable for compensation within the limit of the share of ○○○○’s inheritance.

Therefore, the agreement on the division of the inherited property of this case shall be revoked by the sum description (1, 2, 57.2 million won, 1, 2, and 46.8 million won, totaling the maximum debt amount of the joint mortgages No. 57.200,035 won, which is the share of the inherited property of this case ○○○○○○○○), and the joint mortgage amount shall be revoked by the sum description (1, 2, 57.2 million won, 1, 2, and 56.4 million won, which shall be the sum of the maximum debt amount of the joint mortgages No. 46.6.8 million won, and for restitution, the Defendant shall be liable to pay to the Plaintiff delayed damages calculated by the rate of 5% per annum per annum

B. 6 to 9 real estate listed in the separate sheet

According to the above facts, with respect to 2/9 shares inherited by ○○○○’s inheritance, the agreement on the division of the inherited property of this case shall be revoked, and the defendant is obligated to implement the procedure for the cancellation registration of the ownership transfer registration of this case to the original state.

5. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.