a donation of real property, which is the sole property of such person, constitutes a fraudulent act.

If a debtor concludes a contract to donate real estate, which is one of his/her sole property, in excess of his/her obligation, to the defendant who is the creditor and the son, the contract shall be revoked as it constitutes a fraudulent act, and the defendant is obligated to implement the procedure

Article 30 of the National Tax Collection Act

Incheon District Court 2017Gadan223063 Revocation of Fraudulent Act

Korea

○ Kim

8.06.19

208.28

1. The contract of donation concluded on November 20, 2015 between the Defendant and the △△△, shall be revoked.

2. The Defendant shall implement the procedure for registration of cancellation of ownership transfer registration, which was completed by the Incheon District Court No. 12795, Nov. 20, 2015, with respect to the real estate stated in the separate sheet to △△.

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

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. A tax claim against the Plaintiff’s △△ branch

The following shall be liable to pay national taxes equivalent to the total amount of 49,907,080 won as follows, as of April 10, 2017:

the Commission.

(b) Act of disposing of the property at the seat of △△;

on November 20, 2015, the following real estate is the only real estate owned by the person himself/herself (hereinafter referred to as the “real estate”).

The term "the apartment of this case" was entered into a donation contract with the defendant, who is the child (hereinafter referred to as "the donation contract of this case"), and on the same day, the registration of ownership transfer was completed as stated in the order in the name of the defendant.

C. Market price of the apartment of this case

The market price of the apartment of this case was 345,000,000 won around the date of concluding the donation contract of this case.

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 4, each entry of evidence 6, purport of whole pleadings]

2. Determination

A. As to the insolvent of △△ Hospital

(i)affirmative property;

Comprehensively taking account of the entries and the purport of the entire arguments as to No. 4 of this case, it can be acknowledged that the active property of △△△ was 345,000,000 as follows at the time of entering into the donation contract of this case.

① The instant apartment KRW 345,000,000

(2) The defendant has a claim amounting to KRW 311,919,000 against △△△△△△△△△△△.

Since there was a claim, the above claim should be reflected in the property of △△.

Even if a debtor's active property, among his/her active property at the time of the debtor's act of disposing of the property, the total amount of the property exceeds the creditor's claim amount, the calculation of the active property shall be excluded from the property that has no real value and cannot play a role as joint security for the claim, barring any special circumstances. In cases where the property is a claim, it shall be reasonably determined whether it is reliable to receive payment easily, and shall be included in the active property only where it is affirmed (see, e.g., Supreme Court Decision 2001Da32533, Oct. 12, 2001).

돌이켜 이 사건에 관하여 보건대, 을 제1호증, 제5 내지 12호증의 각 기재와 증인 차△△의 증언에 변론 전체의 취지를 종합하면, ① 차□□이 2006.경부터 2008.경까지 사이에 대●●●●경 주식회사를 운영하던 소외 박◇◇과 사이에 금전거래가 있었던 사실, ② 차□□이 박◇◇의 배우자이자 자신의 동생인 차△△ 소유의 춘천시 신동 593-6 답 2,374㎡(이하 '이 사건 토지'라고 한다)에 관하여 2008. 5. 7. 채권최고액400,000,000원인 근저당권설정등기를 경료받은 사실은 인정된다. 그러나 다른 한편, 앞서 본 사실 및 거시 증거에 변론 전체의 취지를 더하여 인정하거나 알 수 있는 다음과 같은 사실 및 사정들 즉, ㉠ 이 사건 토지에 관한 근저당권설정등기는 박◇◇이 운영하던 대●●●●경 주식회사가 2008.경 부도를 맞아 어려움을 겪자 자신에게까지 강제집행이 미칠 것을 우려한 차△△과 차□□이 통모하여 경료한 것인 사실, ㉡ 차□□과 박◇◇ 사이에 금전수수가 있었던 것은 맞지만 피고가 일부 제출한 금융거래내역만으로 누가 누구에게 얼마의 채무를 부담하고 있는지 확정할 수 없는 점, ㉢ 차□□이 박◇◇에게 채권을 가지고 있다고 하더라도 이 사건 증여계약 체결 당시 차□□은 위 채권을 약 7년이 넘도록 변제받지 못하고 있었고 달리 박◇◇ 명의의 책임재산도 존재하지 아니한 사실에 비추어 보면, 앞에서 인정한 사실만으로는 차□□이 박◇◇에게 그 주장과 같은 액수의 채권을 가지고 있다거나 위 채권이 용이하게 변제받을 수 있는 것이어서 재산적 가치가 있는 것이라고 보기 어렵다. 따라서 이를 차□□의 적극재산에 포함시킬 수는 없다.

Therefore, this part of the defendant's argument is without merit.

2) Petty property

Comprehensively taking account of the respective descriptions and arguments of Gap evidence Nos. 1, 5, Eul evidence Nos. 3 and 4, the following facts can be acknowledged: 393,953,874 won (=307,377,230 won + 26,671,752 won + 59,904,892 won) at the time of entering into the gift contract of this case.

① 2008. 3. 28. 이 사건 아파트에 관하여 채권최고액을 459,000,000원으로 하여 설정된 주식회사 에■■■■■■■■■■ 명의의 근저당권의 실제 피담보채무 307,377,230원

② As of the date of the gift contract of this case among the Plaintiff’s taxation rights, KRW 26,671,752.

③ The Defendant’s loans and indemnity loans totaling KRW 59,904,892

3) Sub-determination

Therefore, at the time of the conclusion of the instant gift contract, the following obligations of △△△ at least KRW 393,953,874,00,000, which is active property, shall be deemed to have exceeded the obligation at the time of the conclusion of the said gift contract.

B. As to the claim for revocation of fraudulent act

However, barring any special circumstance, the debtor's act of selling real estate, which is the only property of the debtor, and replacing it with money easily for consumption or transferring it to another person without compensation, constitutes a fraudulent act against the creditor. Thus, the debtor's intent of prejudice is presumed to exist, and the burden of proving that the purchaser or the transferor did not maliciously perform his/her obligation is the beneficiary (see, e.g., Supreme Court Decision 2000Da41875, Apr. 24, 2001). In addition, in a case where the debtor's property is insufficient to fully repay his/her obligation, if the debtor provided real estate to a certain creditor as payment in kind, which is the only property of the debtor, and completed the registration of ownership transfer, the creditor obtains satisfaction priority over other creditors, while the joint security is reduced within the scope of the above, the creditor is placed in a more unfavorable position than the previous creditor's interest. Accordingly, the debtor's act of offering the real estate to one of his/her creditors, which is the only property of the debtor, constitutes a fraudulent act in relation to other creditors (see, etc.

As to the instant case, it is reasonable to view that the conclusion of the instant donation contract with the Defendant, who is one of his creditors and children, on the instant apartment, which is his sole property in excess of his obligation, should be revoked as it constitutes a fraudulent act in relation to the Plaintiff.

C. As to the claim for restitution

The donation contract of this case shall be revoked as a fraudulent act detrimental to the plaintiff who is the creditor, and the defendant is obligated to implement the procedure for registration of cancellation of ownership transfer registration of this case's apartment as the restoration following the revocation of fraudulent act to the original state.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.