Seoul Northern District Court-2013-Gohap-20124 ( October 25, 2015)

Where a part of several real estate on which a joint mortgage is created is owned by the debtor, the amount of secured debt for the real estate owned by the debtor shall be the total amount of secured debt of the joint mortgage.

Unless there are special circumstances that make it impossible to exercise the right of indemnity on the real estate owned by the debtor, such as the ownership of part of several real estate on which the joint mortgage is created, and the other part is the ownership of the property to secure another's property, the property to secure another's property shall not exercise the right of indemnity on the debtor, etc., shall be deemed the total amount of the secured debt

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

2015Na2017621 Revocation of Fraudulent Act

Korea

1. AA;

2. The manufacturingCC;

Seoul Northern District Court Decision 2013Gahap20124 Decided February 25, 2015

October 16, 2015

December 4, 2015

1. The part of the judgment of the court of first instance against the defendant A shall be revoked.

2. A. A. A. A. A. Defendant AA and BB (******************, ○○○○○○○○-6 ○01), the gift agreement of KRW 946,50,000, which was concluded on August 11, 2011, shall be revoked.

B. Defendant AA pays to the Plaintiff 946,50,000 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

3. The plaintiff's appeal against defendant ChoCC is dismissed.

4. The total cost of litigation between the Plaintiff and Defendant AA shall be borne by Defendant AA, and the costs of appeal between the Plaintiff and Defendant ACC shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The contract for donation of KRW 400,000,000 entered into on October 28, 2011 between the above-mentioned Paragraph 2 and the defendant ChoCC and the BB shall be revoked, and the defendant ChoCC shall pay to the plaintiff 400,000,000 and the amount calculated at the rate of KRW 5% per annum from the day following the day this decision became final and conclusive to the day of full payment.

1. Basic facts

(a) Status of parties;

1) The Plaintiff has a taxation claim, such as value-added tax, as follows, against BB (*********, ○○○○○○○○○-○6 ○01).

2) Defendant AA is the father of BB, and Defendant AA is the wife of BB.

(b) joint purchase of land between BB and Defendant AA;

1) On April 21, 201, BB and Defendant AA purchased (hereinafter “instant land”) from Kim DD (1/2 shares), Lee FF (1/4 shares), 386,000,000, in co-owner’s purchase price of KRW 5,943,00,000, in total, KRW 2/20 of the shares from LeeD, 00, KRW 1/4 shares from Lee F, KRW 588,60,000, KRW 20 of the shares from 00, KRW 200,00, KRW 20 of the shares from 00, KRW 200,00, KRW 20 of the shares from 1/4 shares from 00, KRW 588,60,000, KRW 2162.1 shares from 20,000, KRW 301/200 of the shares in the instant land + KRW 2501/280,000 of the shares in the instant land.

2) At the time of concluding the instant sales contract on April 21, 2011, Defendant AA paid 300,000,000 won to E as down payment, 150,000,000 won to E, and 150,000,000 won to E.

3) On June 22, 2011, BB paid 750,000,000 won to KimD, and Defendant AA paid 375,000,000 won to EE, respectively, as part of the instant sales contract.

4) On August 11, 2011, BB obtained a loan of KRW 3,900,000,000 from GG bank and paid KRW 1,893,000,000 to GGD for the remainder of the instant sales contract, respectively.

5) On August 11, 2011, BB and Defendant AB had completed the registration of ownership transfer pursuant to the instant sales contract (BB 3/5 shares, Defendant AA2/5 shares), and on the same day, set up a collateral security right (hereinafter referred to as the “mortgage”) with respect to the instant land as security for the above loan obligations against GG Bank of BB, with the debtor as BB in the future of the GG Bank, and with the maximum debt amount of KRW 5,070,000,000, the maximum debt amount of which is KRW 5,070.

C. Transfer of 400,000,000 won to Defendant Mediation Account

1) On October 28, 201, Park H transferred 400,000,000 won to the K Bank account (*********-04-********; hereinafter referred to as the “instant account”) of Defendant Cho J on October 28, 201 through his wife Kim J.

2) On January 11, 2012, BB created a collateral security (hereinafter “instant collateral security”) with respect to ○○○○○○-dong, ○○○○-dong, ○○○○, and ○○1, which is one’s own possession, with the debtor himself/herself and with the maximum debt amount of KRW 1,000,000,000, with respect to ○○○○-dong, ○○-dong, and ○○1.

[Ground of recognition] Facts without dispute, entry in Gap evidence 2 through 6 (including paper numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination as to Defendant AA’s claim

(a) Claims for preservation;

Tax obligations are naturally established when the requirements for taxation prescribed by the Act are satisfied (see, e.g., Supreme Court Decision 2008Da84458, May 14, 2009). In full view of the written evidence Nos. 1, 12, and 13, the entire purport of the pleadings is as follows: (a) as of August 11, 201, the fact that the gift contract of this case to be considered below the Plaintiff has a total of KRW 4,714,089,760, as shown in the [Attachment 1] list of tax claims against B as of August 11, 2011.

(b) Fraudulent act;

(i) donations made by BB to Defendant AA by

In light of the following (1) through (4), it is reasonable to view that BB entered into a gift agreement with the content that BB donates donates the same amount to AA by paying 946,50,000 won to BE as the balance of the instant sales contract on August 11, 2011.

① The 1/4 shares in the instant land are only those of Defendant AA’s purchase, and is not subject to BB’s purchase, and the payment of KRW 946,50,000 to E on August 11, 201 constitutes a third party’s payment by subrogation of Defendant AA’s obligation.

(2) Of course, at the time of the conclusion of the instant sales contract on April 21, 201, Defendant AA paid 300,000,000 won as down payment to KimD with respect to 1/2 shares of KimD not subject to its purchase (i.e., the amount to be paid by BB out of 5,886,00,000 won (i.e., KRW 5,886,00,000 x 3/5). The amount to be paid by Defendant AA is KRW 2,354,40,000 (= KRW 5,886,000,000, KRW 300, KRW 3000, KRW 600, KRW 7000, KRW 7000, KRW 7005, KRW 4005, KRW 7005, KRW 005, KRW 70005, KRW 40005, KRW

③ Defendant AA did not have to return profits acquired by Defendant BB’s subrogation. Rather, comprehensively taking account of the purport of the entire pleadings in each of the statements in Evidence Nos. 2, 7, and 9, Defendant AA sold 2/5 shares of the instant land at KRW 2,450,000,000, before the completion of the registration of ownership transfer pursuant to the instant sales contract, and received the full amount of the purchase price until September 15, 201. On the other hand, BB sold 3/5 shares of the instant land to AB, for KRW 3,70,000,000,000, and the purchase price can be determined at all by taking over KRW 1,450,000,000 for the instant land, and KRW 3,70,000,000,000 for the instant land, and the purchase price can be determined at all by having been actually paid to 3/20,000,000 for the instant land.

④ Ultimately, on August 11, 2011, BB paid 946,50,000 won to EE as the remainder of the instant sales contract, Defendant AA had obtained free of charge the same amount of profit. In light of the personal relationship between BB and Defendant AA, there was a mutual agreement between B and Defendant AA regarding the donation of the said content.

(ii) the status of excess of BB’s obligations;

A) Comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 3, 5, 10, 12 and Eul evidence Nos. 11, BB as at the time of the donation contract of this case, has positive property of 12,81,626,760 won, such as the list of positive property in the attached Table No. 2 list, and it can be acknowledged that the total amount of claims secured by some active property is offered as real guarantee of KRW 1,30,000,000. If the debtor's property is provided as real guarantee for other creditors' claims when determining whether it constitutes a fraudulent act subject to creditor's revocation, the portion provided as real guarantee cannot be deemed as debtor's liability property, and thus, it shall be evaluated as debtor's active property only after deducting the amount of claims secured by other creditors from the value of property provided as real guarantee (see, e.g., Supreme Court Decisions 2010Da64792, Jan. 12, 2012; 20607Da1607816

B) Comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 3 and 10, the fact that Eul at the time of the donation contract of this case had a total of KRW 11,884,089,760 as shown in the list of small property in attached Table 3 can be acknowledged.

C) As to the above, Defendant AB’s obligation of KRW 3,90,00,00 to GB Bank No. 4 of [Attachment 3] is limited to BB as obligor. However, as long as the above obligation is the secured obligation of KRW 3/5 of BB and KRW 2,340,000,00, which is the equity interest of KRW 30,000,00, which is the equity interest of KRW 30,000,00, which is 30,000 (3/5,000 + 3,000) and the total amount of the debt of KRW 30,00,00,000, which is not owned by the obligor’s 40,000,000, which is not owned by the obligor’s 40,000,000,000,0000, which is not owned by the obligor’s 25,000,000,00

D) Ultimately, at the time of the instant donation contract, BB was in excess of the debt amounting to KRW 302,463,00 (i.e., positive property KRW 11,884,089,760 - positive property KRW 11,581,626,760).

3) Sub-determination

Therefore, the gift contract of this case is a fraudulent act that causes damage to the creditor by deepening the existing debt excess situation by reducing the active property of BB.

(c) A deceased noble doctor;

In light of the fact that the instant donation contract constitutes a gratuitous act, the property status of BB at the time of the instant donation contract, and personal relations between BB and Defendant AA, it is reasonable to deem BB to have known that the instant donation contract constitutes a fraudulent act, and Defendant AA’s bad faith, a beneficiary, is presumed (see, e.g., Supreme Court Decision 95Da51908, May 23, 1997).

(d) Revocation of fraudulent act and reinstatement;

Ultimately, the gift contract of this case must be revoked as a fraudulent act, and as a result, Defendant AA is obligated to pay to the Plaintiff 946,500,000 won and damages for delay calculated by the rate of 5% per annum under the Civil Act from the day following the day this judgment became final and conclusive to the day of full payment.

3. Determination as to the claim against Defendant Mediation

A. The plaintiff's assertion

LH’s remittance of KRW 400,00,00 to the instant account of Defendant Mediation on October 28, 201 through the Kim J, his wife, Kim J. As a result, BB borrowed KRW 400,000 from around October 28, 201 to the instant account of Defendant CC, which is one’s own wife, and transferred the borrowed amount to the instant account of Defendant CC. This constitutes the act of donation of KRW 400,000,000 to Defendant CC. At that time, BB had already been in excess of its obligation, the said donation should be revoked as a fraudulent act, and Defendant CC is obligated to pay the Plaintiff KRW 400,000,00 and delay damages therefrom.

B. Determination

(2) It is insufficient to acknowledge that the transfer of KRW 400,00,00 to the account of KRW 10 by Defendant 20 on October 28, 201 by Defendant 10, ○○○○○○○○○○○○○○○○○○○○○○○○ 0, 100, by Defendant 1’s ○○○○○○○○○○○○○ 0, 100, to Defendant 20, through ○○○○○○○○○○ 0, 100, 200, 300, 1) was an act of borrowing the same amount from Defendant ○○○○ 20, 100, 200, 1). Rather, there is no other evidence to acknowledge that the transfer of KRW 400,00 to Defendant 20, 10, 200, 201, 20, 200, 201, 3).

Along with the Majority’s view that: (a) on October 28, 201, 201, HH transferred KRW 400,000,000 to the instant account of Defendant Mediation on October 28, 201 through Kim J, Defendant 1, BB, as the obligor, transferred KRW 40,000 to the instant account; (b) on January 11, 2012, ○○○○-dong ○○-dong ○○ ○○ ○ ○ ○ ○ ○ ○ ○ 00,000,00 won to Defendant 20; (c) on account of the fact that the said KRW 400,00,00,000 was transferred to Defendant 20; (d) in view of the fact that the said KRW 400 and KRW 00 were transferred to Defendant 20,000, the account holder could not be deemed to have been transferred to or received from Defendant 1’s account (see Supreme Court Decision 201600, supra).

Ultimately, on October 28, 201, Park H’s transfer of KRW 400,00,000 to the instant account of Defendant Cho Jae-CC through his wife Kim J, Kim J, which was based on the premise that BB borrowed the same amount from Park HH and constitutes an act of donation to Defendant Cho Jae-CC, the Plaintiff’s claim against Defendant Cho Jae-CC cannot be accepted without further review.

4. Conclusion

If so, the plaintiff's claim against the defendant AA is justified, and the claim against the defendant AA is dismissed due to the lack of reason. Since the part against the defendant A in the judgment of the court of first instance as to the defendant AA is unfair differently from this conclusion, the contract of this case is revoked, and the defendant AA is ordered to pay the above amount of recognition, and the plaintiff's appeal against the defendant ACC is dismissed due to the lack of reason.