A fraudulent act shall not be deemed a fraudulent act if the performance of a contract, such as the payment of the purchase price, is performed normally

In a case where the performance of a contract is performed normally, such as payment of the purchase price, etc., the beneficiary of a fraudulent act or the subsequent purchaser shall be deemed the good faith at the time of the conclusion of the contract, and even if the purchaser purchased a certain price less than the market price, it is not necessary to deem otherwise.

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

2013 Gohap 100278 Revocation of Fraudulent Act

Korea

AAA foreign1

January 8, 2014

February 19, 2014

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

On September 2, 2009, Defendant AAA and BB cancel the sale and purchase of the real estate listed in the separate sheet and Defendant AAA entered into on September 2, 2009, and Defendant AB performed the registration procedure for ownership transfer on the real estate listed in the separate sheet with respect to the real estate listed in the separate sheet with respect to the real estate listed in the separate sheet with respect to Defendant AA, and Defendant CK performed the registration procedure for cancellation of the registration for establishment of a neighboring mortgage completed on January 2, 2012 with respect to the real estate listed in the separate sheet with respect to

1. Basic facts

A. Plaintiff’s credit against BB

BB on August 7, 2009, transferred the land and the building on the ground located in Busan metropolitan transportation Daegu to PP Construction, and reported capital gains tax of KRW 182,69,338, but did not pay the said tax. The head of the tax office at the same time notified BB of the determination of capital gains tax of KRW 184,919,134 on August 31, 2010, however, the said tax notice was returned and served on September 27, 2010.

B. BB’s disposal of the instant apartment and the registration of the establishment of the establishment of the Defendant KK’s neighboring mortgage on the instant apartment to the Defendant AA, his children, completed the registration of the ownership transfer as of September 3, 2009 and the receipt of the registration of the ownership transfer as of September 3, 2009 with respect to the instant apartment to the Defendant AA, as of September 2, 2009.

On January 2, 2012, Defendant AA completed the registration of this Court and the registration of the establishment of the neighboring mortgage by No. 228, which was based on the mortgage contract on the same day to Defendant KK, his mother.

(c) the financial status of BB;

At the time of the instant sales contract, BB had more active property than positive property in excess of debt.

[Judgment of the court below] The ground for recognition is without merit, Gap evidence 1-4-6, Eul evidence 1, 3-1, and 5-2, and the purport of the whole pleadings.

2. this safety defense - The period of exclusion, guidance and assertion

A. The assertion

Even if Defendant AA’s conclusion of the instant sales contract was a fraudulent act, the Defendants could have known the fact that BB sold or sold the instant real estate in arrears and intention to know about it before September 28, 2009, at the time of payment of acquisition tax for the instant real estate by Defendant AAA, and even if not, on October 20, 2010, the Plaintiff was aware that the instant sales contract constituted a fraudulent act on October 20, 2010, when the Plaintiff was conducting provisional seizure or seizure of the said real estate in Gyeong-gun, Chungcheongnam-gun, Seoul. Therefore, the Defendant’s defense against safety that the instant lawsuit for which one year has elapsed since the limitation period was imposed.

B. Determination

In the exercise of creditor's right of revocation, "the date when the creditor becomes aware of the cause of revocation" means the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act while being aware that it would prejudice the creditor. Thus, it is insufficient to simply say that the debtor conducted a disposal of the property, and it is insufficient to say that such a juristic act constitutes an act detrimental to the creditor, which causes a shortage in the joint security of the claim or lack in the joint security already in the state of shortage.

In addition, it is necessary to inform the debtor of the fact that he/she was aware of his/her intention to commit a fraudulent act, and it cannot be presumed that he/she was aware of the objective fact of the fraudulent act, and the burden of proof as to the degree of the exclusion period is limited to the creditor's revocation lawsuit.

The other party to the case (see, e.g., Supreme Court Decisions 2004Da61280, Jul. 4, 2006; 2009Da47852, Oct. 29, 2009).

In the instant case, there is no evidence to prove that the Plaintiff was aware of the fact that the instant sales contract constituted a fraudulent act on the date of the Defendant’s assertion on the health stand and records, and there is insufficient evidence to acknowledge it solely on the basis of the descriptions of evidence No. 4-5, 6, and No. 6

The defendant's main defense is without merit.

3. The establishment of a fraudulent act;

In accordance with the above facts, the Plaintiff’s claim for capital gains tax against BB was established on August 31, 2009, which was the end of the month when BB reported pursuant to Article 21(2)2 of the Framework Act on National Taxes, and was established at the time of the instant sales contract, and the act of BBB BB, which was in excess of its obligation while having been well aware of the fact that the amount of taxes would be notified, would deteriorate the shortage of joint security for general creditors, barring special circumstances. Thus, the Plaintiff’s act of selling the apartment of this case and changing it into money which is easy for BBB BB to consume, which, barring special circumstances, becomes an object of creditor’s right of revocation in relation to other creditors such as the Plaintiff, etc., and Defendant AA is presumed to have been well aware of such circumstances. The beneficiary

3. Determination as to the Defendants’ bona fide assertion

A. The assertion

The Defendants asserted that Defendant AA did not know that the instant sales contract constituted a fraudulent act.

(b) Fact of recognition;

The following facts are recognized in accordance with the above-mentioned evidence and evidence Nos. 1, 6, and 16 and the purport of the whole pleadings.

Defendant AAA’s mother (1) on April 28, 2006, KK filed a divorce lawsuit against BB under the name of the Busan District Court’s home branch office 2006dhap695, and divorced on October 9, 2006. Defendant KK was living separately from BB in 2005, and was not in a marital relationship with BB, and Defendant K’s money of KRW 197,000,000, 718-6, 198-6, 200, 200, 200, from among the Daegu Shipping Daegu in Busan, the Plaintiff purchased the apartment house under the name of Defendant AA, and lived with Defendant AAA at the same place. Defendant AA had from that point to that point, no entry was made with DB from that point.

(2) On July 16, 2009, Defendant AA sold at KRW 245,00,000 an apartment house of Dong-gu to Lee Jae-tae on July 16, 200.

During the process of having been kept in custody with the purchase price and the purchase price, Defendant KK proposed that BB would sell the apartment of this case at a price lower than the market price, and concluded the sales contract of this case after accepting it. Defendant AA and BB agreed to determine the purchase price as KRW 210,000,000, and pay the down payment of KRW 200,000 on the date of the contract, and pay the remainder of KRW 190,000,000 on September 3, 2009. However, Defendant AA and B agreed to cancel the registration of creation of a neighboring mortgage on behalf of the Busan bank, and pay only the remainder of KRW 145,00,000,000, which remains after deducting the purchase price.

(3) Defendant AA paid the down payment of KRW 20,00,000 and the remainder of KRW 45,00,000 as stated in the above contract from its own bank account to the Busan Bank account of BB. Next, Defendant AA received the instant apartment from the instant apartment as collateral and paid KRW 147,02,293 (such loan principal + KRW 145,00,000 + KRW 300,000 + KRW 2,02,293) to the above Busan Bank loan. Defendant AA had completed the registration of ownership transfer on September 3, 2009. Defendant AA paid KRW 2,730,000 as acquisition tax, etc. on September 28, 2009. Defendant AA had resided in the move-in report as of November 1, 2009.

C. Determination

In a case where the performance of a contract, such as payment of the purchase price, is performed normally, etc. between the parties to the contract, the beneficiary or subsequent purchaser of the fraudulent act should be deemed as the good faith at the time of the conclusion of the contract, and even if the purchaser purchased a certain amount of less than the market price, it is not necessary to deem otherwise (see Supreme Court Decision 2009, Feb. 11, 2010)

C.0484 see Supreme Court Decision 80484

In the instant case, the Defendants had not been aware of the financial status of BB at the time of entering into the instant sales contract for more than five years, and it was deemed that the sales contract was implemented in a normal manner, such as the actual receipt of the sales price verified by sources. Therefore, the beneficiaries of the instant real estate and the Defendants, the subsequent purchaser, were unaware of the fact that it would prejudice the creditors at the time of the instant sales contract.

Therefore, the presumption of bad faith of the defendants was reversed, and the defendants' above assertion is justified.

4. Conclusion

Therefore, the Plaintiff’s claim against the Defendants in this case is dismissed on the ground that all of the claims are without merit.