When determining whether a debtor is insolvent, he/she shall be excluded from having no real property value.

It is insufficient to readily conclude that the establishment of an executive title is able to repay a claim.

Article 30 of the National Tax Collection Act: Revocation and Restoration of Fraudulent Act

Busan District Court Decision 20136Gahap8433 Revocation of Fraudulent Act

Korea

Park AA

July 17, 2014

August 14, 2017

1. Defendant and Nonparty KimB (***************, 00 a.00 00 EastCC apartments

A cash donation contract of KRW 393,500,000 entered into as shown in attached Table 1 between 1301 and 114

of KRW 325,776,111 shall be revoked within the limit of KRW 325,77,11.

2. The defendant shall pay to the plaintiff KRW 325,776,11 and shall be repaid to the plaintiff from the day following the day this judgment became final and conclusive.

By the day, 5% interest per annum shall be paid.

3. The plaintiff's remaining claims are dismissed.

4. Of the litigation costs, 20% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

The contract for cash donation of KRW 393,50,00,00 entered into as shown in the attached Table 1 sheet between the defendant and the non-party KimB shall be revoked within the limit of KRW 371,512,790. The defendant shall pay to the plaintiff 371,512,790 with 5% interest per annum from the day after the date of confirmation of the judgment of this case to the day of full payment.

1. Basic facts

A. Formation of a taxation claim

1) KimB shall impose global income tax amount of KRW 11,985,720 on November 2, 2009 and December 16, 2009, respectively.

It was notified and notified.

2) In addition, KimB on October 20, 2009, 00 00 :00 :00 :143-8 et al. and 3 lots of land (hereinafter referred to as “the land”).

‘The land of this case' was transferred to KRW 1.53 billion, but the transfer income tax was not reported even though it was transferred to KRW 1.53 billion.5 billion.

In addition, on January 4, 2013, the director of the Ansan Tax Office imposed and notified capital gains tax of KRW 317,864,310 to KimB.

3) At the time of the filing of the instant lawsuit, the amount of arrears by KimB in total 371,512,790 as listed below:

is the source.

B. Relationship between KimB and the Defendant

1) On January 13, 1988, KimB, after completing the marriage report with the defendant on January 13, 1988, continued the marital life and continued the marital life.

10. 15. The 2009No. 2464 of this Court submitted an application for confirmation of the intention of divorce.

2) The defendant, while settling a marital life with KimB, shall have a residence to reside with his/her children while settling the marital life with his/her children.

To do so, on October 30, 2009, 439,000, 00,000, 00 - 00 - 00 - 00 - 00 - 00 - 1112 (hereinafter referred to as "the apartment of this case") were purchased at KRW 801,000,000 and completed the registration of ownership transfer under the name of the defendant on December 15, 2009.

3) The KimB shall, prior to this, pay the purchase price for the apartment of this case to the Defendant from October 22, 2009.

By December 14, 2009, a sum of KRW 390,500,000 was remitted to the Defendant (part of the transfer to Park E with the consent of the Defendant) as shown in Appendix 1 attached hereto.

4) After that, KimB and the Defendant completed the divorce report on January 25, 2010.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 4, Eul evidence 1

Each entry, including number, hereinafter the same shall apply), part of witness KimB's testimony, the purport of the whole pleadings.

2. Whether the debt exceeds the debt of KimB, and whether the cash donation contract of this case is division of property

A. The parties' assertion

1) Summary of the Plaintiff’s assertion

a cash donation contract between them (hereinafter referred to as "the contract") that KimB remitted to the defendant as above;

This is based on the cash donation contract, and thereby exceeds obligations of KimB.

As the cash donation contract has deteriorated, the above cash donation contract is a joint security for the general creditors of KimB including the plaintiff.

As a fraudulent act reduced, it shall be revoked within the scope of the claim amount of the plaintiff.

2) Summary of the defendant's assertion

A) KimB, at the time of the instant cash donation agreement, the H, HaJ, HaJF, Park G, HaB

the claim based on the final and conclusive judgment, etc. shall be included in the affirmative property.

It is not a state of excess.

B) The cash donation contract of this case was agreed upon by KimB to divorce with the Defendant and agreed upon by KimB.

In addition, since it was paid as the property division, it does not constitute a fraudulent act.

B. Determination as to whether the debt exceeds the debt of KimB

1) In a lawsuit seeking revocation of a fraudulent act, the requirements for the fraudulent act such as the debtor's excess of the debt are satisfied.

Whether or not a fraudulent act should be determined as at the time of the fraudulent act, such as the cash donation contract of this case

In the event of continuous disposal of several properties, the standard point of time for excess of liabilities will be the problem.

in principle, according to whether each act causes insolvency. In principle, the company

Although it should be judged whether the series of acts should be considered as one act.

When there are circumstances, it is necessary to determine whether the whole is harmful as a whole.

in determining whether such special circumstances exist, the other party to the disposition

each disposition is close to time, and whether there is a special relationship between the other party and the debtor; and

Whether the motive or opportunity of the disposition is identical to that of the disposition should be specific criteria (Supreme Court).

See Supreme Court Decision 2005Da7795 delivered on July 22, 2005, etc.

2) As to the instant case, the following circumstances revealed in the foregoing facts, namely, the instant case

The other party to the cash donation contract is both the defendant and the above cash donation contract is the apartment of this case.

the purpose of cash payment of this case, taking account of the fact that the purchase took place at the time of the purchase and the purpose of cash payment

It is reasonable to view the cash donation contract as a series of acts. If so, the debt excess status of KimB.

as of October 22, 2009, the first payment date of the cash donation contract of this case.

It should be viewed.

3) As to whether KimB was in excess of its obligation at the time of October 22, 2009;

KimB, taking into account the overall purport of the arguments in Gap evidence No. 6, the attached Table No. 2 at that time

A deposit claim (including KRW 390,500,000 paid to the defendant) and real estate in its name, etc.

A total amount of KRW 1,159,93,674 was owned with active property of KRW 342,195,320 among the instant tax liability, and it can be recognized that the KimB incurred a total of KRW 1,182,125,109, including KRW 342,195,320 among the instant tax liability. According to the above facts acknowledged, it is clear that the instant negative property of KRW 1,182,125,109 exceeds active property (negative KRW 1,159,93,674 = 22,131,435).

4) In addition, whether the claims of the Defendant asserted can be included in the positive property of KimB.

in determining whether a debtor's insolvency is insolvent, (c) in calculating such positive property;

Unless there are special circumstances, the role of the joint security of the claim as it has no substantial property value.

such property shall be excluded, and if the property is a claim, it shall be excluded.

reasonably determining whether or not it has been able to be satisfied easily;

It should be included in active property only if it is affirmed (see, e.g., Supreme Court Decision 2001Da32533, Oct. 12, 2001). According to the evidence No. 3, 2001, KimB, KimB, as to the conflict of interest, Kim Jong-jin's claim for the price of goods and delay damages amounting to KRW 51,719,250,000, based on the final judgment No. 14798, Oct. 14, 2003, and Park GG's claim for the price of goods and delay damages amounting to KRW 92,030,913, as the final judgment No. 2004Ga4784, Oct. 12, 2001). However, according to the evidence and witnessB, it is difficult to acknowledge that there is no possibility that the above defendant's claim for the price of goods and delay damages amounting to KRW 51,189,500, etc.

C. Determination on the legal nature of the cash donation contract of this case

On October 15, 2009, the agreement on January 25, 2010 was reached by the Defendant and the KimB and the Defendant filed for a divorce on October 15, 2009.

The facts of the completion of the marriage report are as seen earlier, and KimB and the defendant appearing in the above recognition.

In light of the flow, purpose, and timing of payment of the money paid by KimB, KimB

The payment of the above KRW 390 million to the defendant shall be made under the property division name following the divorce by agreement.

It is reasonable to see that it had been done.

3. Whether the cash donation contract of this case constitutes a fraudulent act exceeding the reasonableness of division of property

A. Relevant legal principles

Division of property following divorce is liquidation of common property formed through mutual cooperation between the parties during marriage.

In light of the fact that the support for the other party has a nature to the other party, it has already been in excess of the obligation.

by transferring a certain property to the spouse by division of property while the debtor is divorced;

as a result of the reduction of the joint security of the general creditor, the division of property as a result of the reduction

Article 839-2(2) of the Civil Act is excessive beyond a considerable degree pursuant to the purport of the provision.

Unless there are extenuating circumstances to the extent that such fraudulent act may not be revoked, the extent of

If there are special circumstances to deem that the exceeding part is beyond, the revocation as a fraudulent act

The subject matter may be the subject matter (see, e.g., Supreme Court Decisions 2000Da14101, Jul. 28, 2000; 2000Da25569, Sept. 29, 200). In such a case, whether the division of property of a debtor is reasonable or not shall be determined according to the general principle of the division of property as prescribed by Article 839-2 of the Civil Act; however, in comparison and balancing between the interests of one of the divorced parties and the interests of creditors, whether the division of property is reasonable in relation to the relationship with the creditor of the divided party ought to be considered (see, e.g., Supreme Court Decision 2005Da74900, Sept. 14,

B. Whether the cash donation contract of this case exceeds the reasonableness as a division of property

1) First, as to the positive and negative property subject to division of property, the health expenses incurred prior to such division

In full view of evidence, evidence No. 6 and the purport of the entire argument, at the time of the cash donation contract of this case

Most of the real estate including deposit claims in the name of KimB and the land of this case are married with the defendant.

The fact that it is a group of property through the business of KimB during active KimB, including the tax liability of this case

most debts that were assumed by KimB shall also be the fund of the KimB project or the name of apartment purchase.

Since the fact that the above KimB is a debt, the active property of the above KimB is formed through mutual cooperation with the defendant.

In common property, KimB's small property is accompanied by the process of forming common property of the couple.

It is reasonable to view the witness KimB's testimony as a whole. However, if the witness KimB's testimony contains the overall purport of the pleading,

Of the loan obligations of KimB, the attached Tables 1 through 3, and 8 obligations of the married couple shall be joint life or work.

Since it is recognized that it is a unique debt used for personal purposes, such as entertainment, regardless of the commercial buildings, it is recognized;

This cannot be included in the negative property subject to division of property. Meanwhile, in full view of the facts and the purport of the entire arguments as seen earlier, it appears that there is no positive or negative property of the couple’s joint property under the name of the defendant at the time of the division of property.

101,585,834원[= 적극재산 1,159,993,674원 -1소극재산 1,182,125,109원 - (김BB 개인채무 9,608,327원 + 30,000,000원 + 49,999,218원 + 34,109,724원) €]이 된다.

2) Next, regarding the scope of division of property, the health class, facts as seen earlier, and pleadings

The following circumstances, which are acknowledged by the purport of the entire contract, i.e. at the time of the cash donation contract

KimB had already been in excess of the obligation, and even if there was no such cash donation contract, KimB's affairs

In contrast, the creditors' joint security has already been weak, and ② The active property of KimB is most important.

Husband and wife of the defendant, formed or acquired in the course of a sustained marital life for about 20 years with the defendant

The degree of contribution to the formation of joint property seems to be significant (the testimony of witness KimB)

According to the reasoning of the judgment, the defendant was also able to see the situation in which KimB's place of business directly conducted work, and the defendant was able to do so.

In light of the fact that KRW 393,50,000,000,000 as a donation from BB, was used as the purchase fund of the apartment of this case purchased for the purpose of residing with two children after divorce with KimB (the fact that the purchase price of the apartment of this case was 439,000,000,000,000,000,000,000 won was paid by the Defendant) and ④ in light of the witness KimB’s witness KimB’s testimony, the reason why the KimB and the Defendant was divorced is deemed to exist in KimB. However, the Plaintiff’s tax claim is a transfer income tax claim to be paid by disposing of the land of this case acquired during marriage and the obligation to pay capital gains tax should be considered at the time of liquidation of marital relations, and is compared and compared with the Plaintiff’s tax claim amount, it is reasonable to view that the substantial scope of property division against the Defendant following the divorce between BB and the Defendant to the extent of 2/37,783,89 won,85.

3) Ultimately, among the instant cash donation contract, KRW 67,723,889, a reasonable amount of property division, is the first place.

The amount of KRW 325,776,11 (= KRW 395,00,000 - KRW 67,723,889) to be imposed is a fraudulent act.

C. Determination on the Defendant’s bona fide assertion

Even if the part exceeds the substantial portion of the division of property, the defendant's objection thereto

Since it is alleged that the Defendant was a bona fide beneficiary, the Defendant was acting in good faith at the time of the instant cash donation contract.

there is no evidence to prove that there is no evidence to prove that there is such fact (or, in so doing, the disposal of the property by KimB as seen earlier);

In light of the process and the defendant's relationship between KimB and the defendant, the defendant transferred the land of this case by KimB.

KimB at the time of the cash donation contract of this case

The portion exceeding the considerable portion of the cash donation contract of this case because the cash donation contract of this case was in excess of debt

of KimB’s general creditors who become aware that the lack of common security becomes worse.

the defendant's above assertion is acceptable. Accordingly, the defendant's above assertion cannot be accepted.

4. Scope of cancellation and reinstatement.

As seen earlier, the Plaintiff’s claim amounted to KRW 371,512,790 is as follows. Therefore, the cash donation contract of this case shall be cancelled as a fraudulent act within the limit of KRW 325,776,11, which is the lesser of the above preservation claim amount and KRW 325,776,111, which is the lesser of the above preservation claim amount. Accordingly, the Defendant shall be liable to pay the Plaintiff damages for delay calculated at the rate of KRW 325,776,11 as the value compensation for restitution.

5. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and b

(s) Requests for money shall be dismissed for lack of good cause.