Revocation of Fraudulent Act

National tax claims held by the Republic of Korea against a delinquent taxpayer shall be subject to creditor's right of revocation, and it constitutes a fraudulent act to cause the delinquent taxpayer to be in excess of his/her obligation by losing the ownership of the real estate in this case, unless there are special circumstances.

Article 30 of the National Tax Collection Act Revocation

Youngju District Court Cheongju District Court 2019Kadan3997

○ ○ Civil Country

AA

July 5, 2019

August 13, 2019

1. The sales contract concluded on December 18, 2018 between the Defendant and BB regarding the real estate listed in the separate sheet shall be revoked.

2. The Defendant shall comply with BB with the procedure for cancellation registration of ownership transfer registration completed on January 29, 2019 by receipt No. 1552 with respect to the real estate listed in the separate sheet.

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. BB, from July 15, 2008, operated a business entity of the trade name, “CC industry engaged in wholesale and retail business of raw materials, etc.” from Chungcheongnam-do ○○○○○-gun, Chungcheongnam-do, and closed on September 2, 2016. BB is liable to pay national taxes equivalent to the total amount of KRW 84,036,130 as indicated below as of the date of filing the instant lawsuit ( April 5, 2019).

B. BB completed on January 29, 2019, No. 1552, which was received on January 29, 2019, with respect to the real estate listed in the separate sheet (hereinafter referred to as “instant real estate”), the registration of ownership transfer (hereinafter referred to as “instant registration”) for the Defendant on December 18, 2018 (hereinafter referred to as “instant act of causing the instant registration”).

C. At the time of the instant act, BB’s active property was not the ownership of the instant real property equivalent to KRW 145 million, and there was no particular reason other than the Plaintiff for the 2016.98,720 won (based on the notified tax amount) with respect to the Plaintiff’s passive property of KRW 80,98,720 (based on the notified tax amount) and the amount of loans equivalent to KRW 33,320,00 against D Bank Co., Ltd.

D. Meanwhile, BB is a person married with BE, who is the defendant's child, and BB is the defendant's deceptive act, and the defendant is the head of BB.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4 and Eul evidence Nos. 1, 2, and 17 and the purport of the whole pleadings

2. Determination

A. “Fraud act” under Article 406 of the Civil Act refers to an act that causes damage to creditors by causing the debtor to go beyond his/her obligation by actively reducing his/her property or increasing his/her negative property, or by deepening that he/she has already been in excess of his/her obligation. As such, even in a lawsuit for revocation of a fraudulent act under Article 30 of the National Tax Collection Act, it is clear that it is a kind of lawsuit for revocation of a fraudulent act under Article 406 of the Civil Act, and the provisions of the Civil Act regarding the requirements and exercise thereof are applicable mutatis mutandis. Thus, in order for a taxpayer to constitute a fraudulent act, the taxpayer’s act of disposal of his/her property should either be in excess of his/her obligation or deepened that the taxpayer has already been in excess of his/her obligation (see Supreme Court Decision 2015Da

According to the above facts, the plaintiff's national tax claim prior to BB becomes the preserved claim for the obligee's right of revocation, and the act of this case constitutes a fraudulent act in which BB loses the ownership of the real estate and the taxpayer's property right subject to disposition for arrears and joint security against general creditors are reduced, thereby causing excess of BB's obligations by reducing joint security against the general creditors, and it is reasonable to view that BB had the intent to avoid the collection of national taxes with knowledge that the act of this case was detrimental to the obligee. In addition, the defendant's bad faith is presumed to have been committed by the beneficiary.

B. As to this, the Defendant, from November 20, 2014 to December 2018, 2018, concluded a mutual agreement with the Defendant on December 18, 2018, on the part of the FF industry (hereinafter “FF industry”) to lend the name of the EE, which is the spouse and the Defendant’s child, to operate the business of wholesale and retail business of raw materials, and charged the Defendant with credit amounting to KRW 170,000,000 with the FF industry (hereinafter “FF industry”). BB, in order to continue the business of the FF industry due to its failure to repay its obligations to the FF industry, made a loan of KRW 9 million and KRW 67 million,000,000,000,000,000,000,000,000,000,000,000,000 won, and claimed to the effect that it did not constitute a fraudulent transfer contract between the Defendant and the FF.13.

Unless special circumstances exist, a debtor’s act of creation of security interest does not constitute a fraudulent act, in a case where a debtor financing in a situation in which it is difficult to continue the business due to financial difficulties and considers it the best way to have the ability to repay debts, and where the debtor extended funds or provided real estate as security to a specific creditor to continue the business, barring any special circumstance (see, e.g., Supreme Court Decision 2000Da5015, May 8, 2001).

However, as the Defendant’s assertion, it is difficult to conclude that the instant act was not a fraudulent act, even if BB had previously performed the obligation under the name of EB while operating the CEB, or if BB had performed the instant act in the course of financing the FF industry by financing funds from the Defendant when the material supply is faced with the situation where BB’s major purchase source is discontinued, it is difficult to view that the instant act was not a fraudulent act. The Defendant’s submission of evidence and evidence are not sufficient to acknowledge that the instant act was not a fraudulent act. It is difficult to view that the Plaintiff’s act of financing the FF industry under the name of EB as a result of the 3,5,11,15, and 16 evidence (including serial numbers) to recognize that the Plaintiff’s act of financing from the Defendant is an active act of collecting the EB’s property under the name of EB, i.e., the obligation to the FF industry, which appears to be an active act of collecting the EB’s property under the name of EB.

C. Ultimately, the instant causes arising between the Defendant and BB regarding the instant real estate are fraudulent acts, and thus the revocation thereof is revoked. Furthermore, the Defendant is obliged to implement the procedure for cancellation registration of the instant real estate to BB due to restitution to its original state.

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.