in excess of obligations, the contract of donation must be revoked as a fraudulent act.

The defendant's act of donation to the defendant in excess of his obligation constitutes a fraudulent act detrimental to other creditors and the defendant, the beneficiary, is presumed to have known that the donation was a fraudulent act detrimental to other creditors, and the contract of donation should be revoked as a fraudulent act.

2012Du200376 Revocation of Fraudulent Act

Korea

KimA

January 11, 2013

February 1, 2013

1. The contract of gift of KRW 000 entered into on April 5, 2007 between the defendant and DoD shall be revoked.

2. The defendant shall pay to the plaintiff 00 won with 5% interest per annum from the day following the day when the judgment of this case became final and conclusive to the day of complete payment.

3. The plaintiff's remaining claims are dismissed.

4. Of the litigation costs, 90% is borne by the Plaintiff, and 10% is borne by the Defendant, respectively.

The text 1 and DoD are revoked, respectively, the donation contract concluded on March 15, 2007, and the donation contract concluded on April 2, 2007 between the defendant and DoD. The defendant shall pay to the plaintiff 00 won and 5% interest per annum from the day following the day when the judgment of this case became final to the day of complete payment.

1. Basic facts

A. On March 14, 2007, Doddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

B. Meanwhile, on April 5, 2007, Doddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

C. At the time of the conclusion of the instant gift contract, Dodddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

[Reasons for Recognition] Facts without dispute, Gap 1, 2, 4, and 9, and 10, the purport of the whole pleadings and arguments

2. The occurrence of the right to cancel the beneficiary's act and the right to claim the return of the original family on April 5, 2007.

(a) Claims for preservation;

In principle, claims that can be protected by obligee's right of revocation should have arisen before the obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee, but at the time of the juristic act, there is a high probability that the legal relationship, which is the basis of the establishment of the claim, has already been established at the time of the juristic act, and that the legal relationship is created in the near future, and that the probability has been realized in the near future, and that claims may also become preserved claims of obligee's right of revocation (see, e.g., Supreme Court Decision 2000Da37821, Mar. 23, 2001). According to the facts of recognition, the Plaintiff's transfer income tax claim against DoD was not yet finalized on April 5, 207, when it entered into the gift contract in this case with the Defendant. However, since transfer of DoD's real estate, which is the basis of the establishment of the transfer income tax claim in this case, it was highly probable that the Plaintiff's transfer income tax claim in this case had occurred.

B. Formation of a beneficial act

1) We examine whether DD was in a state of excess of its obligation at the time it entered into the instant gift contract with the Defendant.

In determining the debtor's insolvency, which is the requirement to exercise the creditor's right of revocation, the small property, in principle, was generated before the act that can be viewed as a fraudulent act was conducted. However, there was a high probability that the legal relationship was established at the time of the fraudulent act, and that the obligation is established in the near future. In fact, the probability of realizing the obligation in the near future, and that the obligation is established, the obligation should also be included in the debtor's small property (see Supreme Court Decision 2010Da68084, Jan. 13, 201). According to the facts of recognition, DoD had active property as of April 5, 207, which was at the time of the conclusion of the gift contract in this case, as of April 5, 2007, DoD held a deposit claim of 00 won in total as the property. Meanwhile, as at the time of the conclusion of the gift contract in this case, DoD's obligation to pay for the transfer income tax in this case was not established yet established, and DoD's obligation was established.

2) As such, it is presumed that EDR, a debtor, donated KRW 00 to the defendant while in excess of its obligation, constitutes a fraudulent act detrimental to other creditors, and that the defendant, a beneficiary, was aware that the donation was a fraudulent act detrimental to other creditors of EDR. Therefore, EDR and the defendant, which was concluded on April 2, 2007 between EDR and the defendant, should be revoked as a fraudulent act, and the defendant, a beneficiary, has the obligation to return KRW 000,000 received from DDR to the plaintiff due to the revocation of the fraudulent act.

3. Determination on the cancellation of a contract of gift made on March 15, 2007 and on the claim for restitution

(a) Grounds for claims;

ADD entered into a gift agreement with the defendant on March 15, 2007, and paid KRW 000 to the defendant on the same day. Accordingly, this gift agreement entered into between AD and the defendant should be revoked as a fraudulent act detrimental to other creditors of AD, and the defendant who is the beneficiary has the obligation to return KRW 00 to the plaintiff to its original state.

B. Determination

If the obligor has donated its own properties to another person, this act would constitute a fraudulent act unless there are special circumstances. However, if the obligor would result in a decrease of joint security of other creditors by paying its principal debts to a specific obligee under the above obligation, it would not constitute a fraudulent act as a matter of principle unless the obligor, in collusion with some creditors, would prejudice other creditors (see Supreme Court Decision 2005Da28686, May 31, 2007). It is recognized that the Defendant, on 15, remitted 00 won to the Defendant on March 15, 207, and that the Defendant would have received 00Da400,000 from 00, and that it would have received 00Da285,000,000 from 0,000 won for the total amount of 0Da20,000,000,000,000 won for the sale of real properties under the name of the Defendant, and that it would be insufficient to recognize that DoD was donated to the Defendant.

4. Determination on the cancellation of a contract of gift made on April 2, 2007 and on the claim for restitution

(a) Grounds for claims;

ADD entered into a gift agreement with the defendant on April 2, 2007, and paid KRW 000 to the defendant on the same day. Therefore, this gift agreement entered into between AD and the defendant should be revoked as a fraudulent act detrimental to other creditors of AD, and the defendant who is the beneficiary has the obligation to return KRW 00 to the plaintiff by restitution.

B. Determination

It is insufficient to recognize that Dodddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

5. Supplementary loan:

Therefore, the gift contract concluded on April 5, 2007 between DoD and the defendant should be revoked as a fraudulent act, and the defendant, a beneficiary, is obligated to pay the plaintiff 00 won and compensation for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day following the day when the judgment of this case became final and conclusive to the day of complete payment, so the plaintiff's claim shall be received within the scope recognized above, and the remainder claims shall be dismissed. It is so decided as per Disposition.