Suwon District Court Sungnam Branch 2012Gahap201737 ( October 20, 2013)

Whether interest in arrears after the fraudulent act is included in the preserved claim after the fraudulent act in a revocation lawsuit

Since interest in arrears after fraudulent act should be included in the preserved claim after fraudulent act in a lawsuit seeking revocation of fraudulent act, the judgment of the court below that calculated as preserved claim only for the initial amount in arrears is unlawful

Article 5 of the National Tax Collection Act

2014Na201732 Revocation of Fraudulent Act

Korea

OraA

Suwon District Court Decision 2012Gahap201737 Decided March 20, 2013

Seoul High Court Decision 2013Na2007293 Decided November 7, 2013

Supreme Court Decision 2013Da217764 Decided April 10, 2014

June 11, 2014

July 4, 2014

1. The defendant's appeal concerning the cancellation of the contract of donation between thisB and the defendant on June 21, 2010 and the cancellation of the contract of donation between the OOOO and the defendant on the claim for payment of OOO and its delay damages is dismissed.

2. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

1) The contract between B and the Defendant for the gift of the OOO as concluded on June 21, 2010 shall be revoked.

2) The Defendant shall pay to the Plaintiff 5% interest per annum from the day following the day when this judgment became final and conclusive to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Progression of litigation and subject matter of adjudication;

In the first instance trial against the Defendant, the Plaintiff revoked the gift agreement between BB and the Defendant on February 5, 2010 and the gift agreement between OOOOO directors concluded on June 21, 2010, and claimed for payment of the above OOOO directors, OOO directors, and damages for delay. The judgment of the first instance court accepted the Plaintiff’s claim in full.

The judgment of the trial court prior to the remanded the defendant's appeal, and the decision of the trial court prior to the remand accepted the claim for the cancellation of the contract of donation between this BB and the defendant and the claim for the payment of the OO and the damages for delay. The remaining claims of the plaintiff were dismissed.

Accordingly, only the Plaintiff appealed, and the judgment of remanded the part against the Plaintiff in the judgment before remanding the case is reversed, and that part was remanded to the party member.

Therefore, among the judgment of the court prior to remand, the winning part of the plaintiff is finalized as it is, and the subject of the judgment after remand is limited to the claim for the cancellation of the contract of donation between this BB and the defendant on June 21, 2010 and the payment of the OO and the delay damages.

2. Basic facts

The following facts are either not disputed between the parties, or acknowledged in full view of the overall purport of the arguments in Gap evidence of Nos. 1 through 10 (including the number of branch numbers; hereinafter the same shall apply).

On August 12, 2005, 000 OB sold 314-9 m2, 154 m2 (hereinafter “the instant land”) to CCC Co., Ltd., and completed the registration of ownership transfer with respect to the said land on April 6, 2007, but did not file a transfer income tax report with CCC," and the head of Echeon Tax Office, the Plaintiff affiliated with the Plaintiff, around September 2010, determined and notified this BB of transfer income tax as of September 30, 2010.

○B on February 5, 2010, sent OOO to the Defendant, the third Republic of Korea on February 5, 2010, and on June 21, 2010, issued OOOOO to the Defendant.

3. Determination on this safety defense

A. The defendant's main defense

With respect to the grant of OOO to the Defendant on June 21, 2010, the Plaintiff asserted that this constitutes a fraudulent act as a gift and sought the revocation of the contract and restitution of the original status as the instant lawsuit. The Plaintiff was aware of the fact that this BB was in excess of its obligation by disposing of its sole real estate around March 8, 2011, and that the BB was aware of the fact that it confirmed the financial data of this BB around April 201, and that the BB gave it to the Defendant on June 21, 2010, the instant lawsuit filed on August 21, 2012 is unlawful because it imposed the exclusion period of one year.

B. Determination

"1) The date when the obligee becomes aware of the ground for revocation" in the exercise of the obligee's right of revocation means the date when the obligee became aware of the requirements for the obligee's right of revocation, that is, the date when the obligee becomes aware of the fact that the obligee had committed a fraudulent act with the knowledge that it would prejudice the obligee. In order to say that the obligee became aware of the ground for revocation, it is insufficient to say that the obligee merely knew of the fact that the obligor conducted a disposal of the property, and further, it is required to know that the obligor was aware of the existence of a specific fraudulent act and that the obligor was aware of the intent of deceptioning on the part of the obligor (see, e.g., Supreme Court Decision 2004Da61280, Jul. 4, 2006). According to the evidence No. 10, according to the evidence No. 10, it is acknowledged that the current status of data, such as

However, comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 6, 10, and 18, it is recognized that △△△ was provided by the post office with financial transaction information in order to track and investigate the delinquent taxpayer's property and other data held by △△△△ on November 17, 201. The plaintiff was requested by the head of Leecheon Tax Office to track and investigate the delinquent taxpayer's property and other data held by △△△△△ on December 19, 201, and received financial transaction information from △△ in order to track and investigate the delinquent taxpayer's property and other data held by △△△.

In light of these facts, it is insufficient to find that the facts acknowledged earlier are insufficient to acknowledge that the Plaintiff was aware of the Plaintiff’s donation of OOB to the Plaintiff on or around March 8, 2011 or around April 2011, and there is no other evidence to acknowledge otherwise. Even if the Plaintiff knew of such donation at that time, it cannot be readily concluded that the Plaintiff knew that the donation was a fraudulent act detrimental to the general creditor. Therefore, the Defendant’s defense on safety is without merit.

3. Judgment on the merits

(a) Claims for preservation;

1) Although it is necessary to say that a claim protected by the obligee’s right of revocation was, in principle, incurred prior to the commission of an act that can be deemed a fraudulent act, the claim may also become a preserved claim of the obligee’s right of revocation in the near future, where it is highly probable that at the time of the fraudulent act, there has already been a legal relationship that serves as the basis for the establishment of the claim, and that the claim is established in the near future, based on such legal relationship. In the near future, the probability is realized and the claim has been established (see, e.g., Supreme Court Decision 2000Da37821, Mar.

Income tax on the gains from transfer of assets shall be established abstractly on the last day of the month in which the tax base for the transfer of assets occurs, and the head of tax office having jurisdiction over the domicile of the person who has made the preliminary return of gains from transfer or the preliminary return of gains from transfer shall determine the gains from transfer and the amount of tax immediately for a person who has not made the preliminary return of gains from transfer, and notify the relevant resident of the tax base, tax rate, amount of tax and other necessary matters entered in the tax notice (see Supreme Court Decision 88Nu2519, Oct. 13, 1989).

2) According to the facts acknowledged earlier, the Plaintiff’s transfer income tax claim against BB following the transfer of land in this case was established abstractly upon the lapse of April 30, 2007, which was the end of the month when the registration of ownership transfer was completed with respect to the land in this case to CCC, and there was a high probability about the establishment of a tax claim based on the above legal relations in the near future. In fact, this probability was determined and notified to BB by the head of this tax office around September 2010 and February 201, and the taxation claim against B becomes final and conclusive. Thus, the Plaintiff’s transfer income tax claim against B may be the preserved claim against the fraudulent act revocation lawsuit.

"3) As to this, the Defendant served a payment notice of capital gains tax on 855-4, 200 O, 855-6, 855-2, 000 O on the resident registration of thisB. At that time, this BB did not reside in the above domicile, and it was impossible to understand the above contents of the payment notice due to dementia. Thus, the above payment notice is unlawful and thus the above disposition of capital gains tax is invalid, so the above disposition of capital gains tax is invalid, so the above disposition of capital gains tax does not exist." And according to each of the statements of evidence No. 2. 3. 13, 2010 O, 855-64, 2, 2, 2, 2010 O as of June 10, 2010, this BB transferred the above payment notice to 855-4, 2, 2010 O, but the head of this tax office did not understand the above contents of the tax payment notice."

In full view of the respective statements in Gap evidence Nos. 4 through 6 and 10, this BB is recognized as having already been in excess of its obligation as indicated below at the time this B transferred the OOO to the defendant on June 21, 2010.

Active Property

Details

Amount (won)

The purchase price of 435.19 square meters in multi-family houses of OO-Gu O-dong O-dong 725-11, 824.1 square meters and above-ground steel bars, and of multi-family houses of 435.19 square meters;

OOO(OO - OO won donated to ED - OO won donated to the Defendant on February 5, 2010)

OO-si O-dong 339-38 square meters 11 square meters

OOO

OO-si O-dong 381-96 Size 17 square meters

OOO

Total

OOO

Petty Property

Transfer Income Tax

OOO

(c) Fraudulent act;

1) A creditor who claims the debtor's legal act, etc. and seeks its revocation shall specifically assert and prove the existence of preserved claims and debtor's legal act, etc. and that the debtor's insolvency was caused by the debtor's legal act, etc., and that if the debtor donated his/her own property to another person in excess of his/her obligation, such act constitutes a fraudulent act, barring special circumstances. However, in cases where the debtor's joint security of other creditors is reduced due to the debtor's repayment of debts to the specific creditor in excess of obligation, such repayment does not constitute a fraudulent act in principle unless the debtor, in collusion with some creditors and with some creditors, made a repayment with intent to prejudice other creditors, and thus, it does not constitute a fraudulent act. However, in cases where the creditor seeking the revocation of a fraudulent act claims the debtor's monetary payment to the beneficiary, it constitutes grounds for denying the creditor's assertion, and as seen in the above legal principle, it constitutes 80 or 200 of the creditor's assertion that the debtor's payment of money constitutes a fraudulent act (see Supreme Court Decision 20080Da60, supra.).

2) The Defendant asserts that, as the third child of this BB, EE, the Defendant’s husband, sold the house located in OO-dong 359-33 around August 2006, this BB borrowed OOO out of the above sales price from E, but this BB borrowed OOO out of the above sales price, and this B made OOO out on February 5, 2010 and repaid the above loan to the Defendant by giving OOOO on June 21, 2010.

Considering the overall purport of the arguments in Gap evidence 1, Eul, and Eul evidence 3 and 4, it is recognized that EE, the third ASEAN of △△△△, sold the house located in the above OE 359-33 on August 20, 2006 to EXF for the payment of the purchase deposit amount, and the EXF would substitute the payment of the lease deposit amount for the remainder of the remainder of the remainder of the remainder of the remainder of the remainder of the remainder of the remainder of the remainder of the payment for the acquisition of the obligation to return the lease deposit amount, and the △△F deposited EX with the post office account (OO-O-O-O-OOOOOO-OOO-OOO-OOO-OO-OO-OOO-OO-OO-OO-O-O-O-O-O-O-O-O-O-O on August 21, 2006.

On the other hand, however, there is no evidence to prove that the remainder of the money deposited in the account of this BB out of the sales price of the house located in the said sub-dong, except for the remainder deposited in the account of this BB, was paid to this B, and according to the statements in the evidence No. 22. 23, it is recognized that the B transferred each of the OOO to EE and the Defendant on July 7, 2008.

In light of these facts, even if this B borrowed OO of the sales price of the above OE, it is reasonable to view that this BB repaid all the above loan around July 7, 2008. Therefore, this is recognized as a donation by this B to the Defendant on June 21, 2010.

3) On June 21, 2010, as seen earlier, that BB had already been in excess of its obligation at the time this B was the Defendant on June 21, 2010, and that the said OOOE is recognized as a gift, and such OOE’s donation constitutes a fraudulent act that deepens the excess of its obligation under this BB.

4) As to this, the Defendant asserts that, although this BB’s selling price of its own real estate was the Defendant, it is unreasonable to revoke that BB’s selling price of its own real estate constitutes a fraudulent act and thus constitutes a fraudulent act, and that it was unreasonable to revoke part of its selling price of its real estate as the Defendant’s fraudulent act.

However, the act of disposal of real estate in BB and the act of donation of the proceeds of sale of such real estate may be asserted as an object of revocation of a fraudulent act, respectively, as separate legal acts. As alleged by the defendant, in the event that real estate is disposed of and the proceeds of sale are donated, only the act of disposal of real estate shall be subject to revocation of a fraudulent act and the act of donation of the proceeds of sale shall not be subject to revocation

(d) the intention of thisB to commit suicide and the defendant's bad faith;

1) The obligor’s intent of deception, a subjective element of a fraudulent act, refers to recognizing that the joint security of claims is insufficient, and does not require any intent or intent to prejudice the obligee.

Although it is anticipated that the transfer income tax should be notified in the future because it did not make a voluntary report of the transfer income tax on the land of this case, the transfer income tax was donated to the Defendant on June 21, 2010, and the active property of this BB at the time of such donation is an OO, while the transfer income tax, which is a small property, is in excess of the debt, is recognized as an OOO, and therefore, it is presumed that the Defendant, a beneficiary, is also presumed to have been aware of the intent of the harm of this BB.

2) The Defendant did not expect that the Plaintiff would impose capital gains tax on BB, and it was unaware of the fact that BB did not pay capital gains tax when it transferred the instant land. Thus, the Defendant did not know that the gift was made by the Plaintiff on June 21, 2010 but did not know that the gift was harmful to the Plaintiff, the obligee.

However, the evidence presented by the defendant alone is insufficient to recognize the fact that the defendant, a beneficiary, was unaware of the act of donation at the time of donation of the above OOOO won, and there is no other evidence to prove it. Therefore, the above provision of the defendant is without merit.

(e) Scope of cancellation and reinstatement;

1) When a creditor exercises his/her right of revocation, in principle, he/she is unable to exercise his/her right of revocation in excess of his/her claim amount, or at this time, the creditor’s claim amount includes interest or delay damages accrued after the fraudulent act and the time the conclusion of arguments in fact-finding proceedings is closed. Meanwhile, the additional dues and increased additional dues provided for in Articles 21 and 22 of the former National Tax Collection Act (amended by Act No. 10527, Apr. 4, 2011) are a kind of incidental tax imposed as interest on the unpaid portion if national taxes are not paid by the due date, and if national taxes are not paid by the due date without the due date for payment by the due date without the due date for confirmation of the right of taxation, the additional dues and increased additional dues incurred by the time after the fraudulent act as well as the amount thereof are naturally determined pursuant to Articles 21 and 22 of the same Act (see Supreme Court Decision 2006Da6753, Jun. 29, 2007).

2) Comprehensively taking account of the overall purport of the arguments in the evidence framework as seen earlier, even based on October 13, 2013, which is the date of the closing of argument in the trial prior to remand, the amount in arrears following the transfer of the instant land to CCC by this B to the Co., Ltd. is the KRW OO (=OOOOwon of capital gains tax + additional KRW 3% (OOOx3%) + the increased additional KRW OOOOE from November 1, 2010 (= KRW 1.2%x 35 months).

This judgment of the first instance court and the first instance court judgment on January 13, 2010, which held that this BB granted OOOOO to the co-defendant of the first instance court on the same date as the Defendant on February 25, 2010, and that this constitutes a fraudulent act that causes damage to the Plaintiff’s claim for capital gains tax, and thus, the decision of the first instance court and the first instance court prior to the remand became final and conclusive to order the cancellation of each contract of donation and the payment of OOOOO. As such, since the transfer income tax claim, which is the preserved claim, is recognized as OOO, is recognized as the transfer income tax claim, as it is, this BB would revoke the donation contract as a fraudulent act, and the Defendant is obligated to pay to the Plaintiff the damages for delay calculated at the rate of 5% per annum as prescribed by the Civil Act from the following day to the date the judgment becomes final and conclusive to the date of full payment.

4. Conclusion

Thus, the plaintiff's claim for the cancellation of the gift contract between BB and the defendant on June 21, 2010 and the plaintiff's claim for the payment of OOOO and damages for delay shall be accepted on the ground of the reasons. Since the judgment of the court of first instance is consistent with this conclusion, the defendant's appeal is dismissed and it is so decided as per Disposition.