act of donation of only real estate constitutes a fraudulent act.

The defendant's transfer of the only real estate owned by him in excess of his liabilities in the name of his parent constitutes a fraudulent act.

2013 Ghana 210258 Revocation of Fraudulent Act

Korea

KimA

January 16, 2014

January 23, 2014

1. The contract on the gift of June 22, 2009 between the defendant and the non-party B on the real estate stated in the separate sheet between the defendant and the non-party B

the scope of the O,O, or OO shall be revoked.

2. The day after the day when the judgment became final and conclusive with respect to the Plaintiff, OO, OO, and the day after the day when the judgment became final and conclusive.

up to five percent (5%) per annum shall be paid.

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

Cheong-gu Office

The same shall apply to the order.

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

(a) Basic facts;

1) Plaintiff’s establishment of tax claims

A) On December 20, 2008, SB completed each business registration with respect toCC stations located in OO-O-O on December 24, 2008, POO-O-O on December 24, 2008 (hereinafter “CC stations in this case”).

B) The Plaintiff’s Head of EE Tax and FF Tax Office imposed the following taxes from September 8, 2009 to January 15, 201 on the grounds that the Party under-B had under-reported the value-added tax and the global income tax for the year 2008-2009 by processing, purchasing, omitting sales, etc. while operating the instant gas station.

(2) the gift contract between the two parties and the Defendant, and the insolvency of the bookB;

A) On June 22, 2009, WesternB concluded a donation agreement on the real estate listed in the separate sheet (hereinafter referred to as “instant real estate”) with the Defendant, his/her husband on June 22, 2009 (hereinafter referred to as “instant donation agreement”), and completed the registration of ownership transfer in the Defendant’s future on June 23, 2009.

B) At the time of the instant donation contract, SeoB was in excess of its obligation.

[Ground for Recognition: Facts without dispute, entries in Gap evidence 1 through 7 (including paper numbers), the purport of the whole pleadings]

B. Determination

(i)the existence of preserved claims;

A) Although it is necessary to say that a claim can be protected by the obligee’s right of revocation was, in principle, arising before the act was conducted, the legal relationship which is the basis of the establishment of the claim has already occurred at the time of the fraudulent act, and it is highly probable that the claim should be established in the near future. In the near future, where a claim has been established as a result of realizing the possibility in the near future, the claim may also become a preserved claim. Such legal principle also applies to a tax claim (see, e.g., Supreme Court Decisions 2000Da37821, Mar. 23, 201; 2006Da66753, Jun. 29, 2007). According to Article 21(1)1 and 7 of the Framework Act on National Taxes from the 3th day of June 10 to the 10th day of 205th day of June, 207, where income tax or liability for payment of value-added tax is not established under the law without any separate act of the taxpayer or taxpayer.

B) In the instant case, the gift contract was concluded on June 22, 2009. The tax period of the global income tax in 2008 was already terminated, and the first-year value-added tax and the global income tax in 2009 began after the commencement of each taxable period. As such, at least the time when the underlying legal relationship for each of the above taxation claims was established, and the background of the determination and payment notice for each of the above taxation claims was due to B’s unfair tax treatment, and it can be sufficiently anticipated that additional taxes will be notified when it was discovered later, each of the above taxation claims against B as of the Plaintiff at the time of the instant donation contract would have already become the basis for its establishment, and it was highly probable that the additional tax claim and the additional tax claim were paid for 200 years or more (see, e.g., Supreme Court Decision 2009Du16080, supra., the additional tax claim and the additional tax claim are included in 20 years or more after the date of final argument in the lower court’s order (see, 2000 years or more).

C) Therefore, at least the total amount of delinquent tax in each of the above taxation claims is the Plaintiff’s amount of preserved bonds against SB.

2) The establishment of fraudulent act

Unless there are special circumstances, the debtor's act of selling real estate, which is one of his own property, and replacing it with or transferring it to another person without compensation, becomes a fraudulent act against the creditor. Therefore, the debtor's intent of deception is presumed to be presumed to be a fraudulent act, and the burden of proof that the purchaser or the transferee did not maliciously exist is the beneficiary (see, e.g., Supreme Court Decision 2000Da41875, Apr. 24, 2001). As seen earlier, SeoB donated the real estate of this case, which is its sole property, to the defendant, who is his/her father, under the anticipated condition that he/she would be liable for the tax liability of this case, and thus, it constitutes a fraudulent act in relation to the plaintiff, barring any special circumstances, and is presumed to be the defendant's bad faith as the beneficiary

C. Judgment on the defendant's assertion

1) The assertion that there is no preserved claim

The defendant asserts that SeoB is merely a person who lends his name to the gas station in this case, and thus does not have any obligation to pay the value-added tax and the comprehensive income tax on the gas station in this case under the substance over form principle.

Even in cases where there is any defect in an cruel administrative act due to the validity of the fair and uncertain power, unless there is any reason to regard the defect as invalid as a matter of course, any person who can simply revoke the administrative act until the administrative act is lawfully revoked by an administrative litigation or other administrative act, cannot deny its validity, and in cases where the objection period under the law has expired, the party concerned shall not dispute the validity of the administrative disposition (see Supreme Court Decision 90Nu8756, Apr. 23, 1991). Thus, the evidence submitted by the defendant alone cannot be deemed as the validity of the disposition of the EE head of the tax office and the FF head of the global income tax office to which the plaintiff belongs, and unless there is any evidence to support that the corrective disposition was revoked, the defendant's above assertion is without merit.

2) The argument that the bookB and the Defendant are bona fide.

The Defendant believed that SGG, a real operator, is responsible for various taxes related to the instant case, and the Defendant, as his fatherB’s father, did not know that SB lent the name of the gas station of this case. Thus, the Defendant asserted that it is bona fide.

However, the evidence submitted by the defendant alone is insufficient to recognize that the bookB and the defendant are bona fide, and there is no other evidence to recognize it.

2. Scope of revocation of fraudulent act and restoration to original state;

(a) Methods for reinstatement;

In a case where a creditor’s revocation of fraudulent act and a claim for restitution are acknowledged, the beneficiary or subsequent purchaser shall be liable to return the object of the fraudulent act to the debtor as restitution, and where it is impossible or considerably difficult to return the original object, the beneficiary or subsequent purchaser shall be liable to compensate for the value equivalent to the value of the object of the fraudulent act as the performance of the duty to restore the original obligation. The case where the original object is impossible or considerably difficult to return means the case where the creditor cannot expect the realization of the performance from the beneficiary or subsequent purchaser in light of the social experience rules or the concept of transaction, rather than the case where the return of the original object is absolute, physical impossibility. If the object of the fraudulent act is transferred from the beneficiary to the subsequent purchaser and its registration is completed, regardless of whether the creditor is entitled to remedy from the subsequent purchaser through a lawsuit, it is reasonable to view that the duty to restore the object to the creditor is in a state of impossible performance by law (see, e.g., Supreme Court Decision 97Da58316, May 15, 1998).

(b) Scope of revocation of fraudulent act and reinstatement;

The market price at the time of the closing of argument in the instant real estate is one of the causes of O00,000, and there is no dispute between the plaintiff and the defendant that the secured obligation against the IIII Agricultural Cooperatives established prior to the fraudulent act on the said real estate. Accordingly, the scope of revocation of the instant fraudulent act and restoration to original state is within the scope of the Plaintiff’s secured obligation, which is within the scope of the Plaintiff’s secured obligation, and the remaining amount of OO0,000 won (=O0,000 won -O,000 won) which deducts only the amount of O0,000 won from the above O0,000 won (O0,000 won).

3.In conclusion

Thus, the gift contract of this case between the defendant and SeoB shall be revoked within the scope of KRW 00,00,000, and the defendant shall be obligated to pay the plaintiff damages for delay calculated by the rate of 5% per annum as stipulated by the Civil Act from the day following the day when the judgment became final and conclusive to the day when the payment is made, to the day when the contract of this case is fully made. Accordingly, the plaintiff's claim shall be accepted.