Where a fraudulent act has been committed on a tenant's real property, restitution following the revocation of a fraudulent act should be made by means of equivalent compensation.

In the event of a fraudulent act with respect to a real estate held by a small lessee, such fraudulent act shall be deemed only to be established within the extent of the balance remaining after the amount of the above lease deposit is deducted from the value of the real estate. Therefore, the fraudulent act shall be revoked within the extent of the balance remaining after the amount of the above lease deposit is deducted from

Seoul Central District Court 2014Kadan5324013 Revocation of Fraudulent Act

Korea

○○ et al.

October 12, 2016

February 8, 2017

1. The agreement on the division of inherited property concluded on February 6, 201 with respect to 1/5 shares of each real estate listed in the separate sheet between Defendant Do○○ and Do○○○, shall be revoked within the limit of KRW 89,930,386.

2. The Defendants jointly pay to the Plaintiff 89,930,386 won with 5% interest per annum from the day following the day when this judgment became final to the day of full payment.

3. The plaintiff's remaining claims against the defendants are dismissed.

4. Of the costs of lawsuit, 1/5 is assessed against the Plaintiff, and the remainder is assessed against the Defendants.

Cheong-gu Office

The agreement on the division of inherited property concluded on February 6, 201 with respect to 1/5 shares of each of the real estate listed in the separate sheet between Defendant ○○○○ and Annual XX (****************) shall be revoked within the limit of KRW 108,874,79. The Defendants jointly pay jointly to the Plaintiff the amount calculated at the rate of KRW 108,874,79 per annum and 5% per annum from the day following the day this decision became final to the day of full payment.

1. Basic facts

A. The director of the Gangnam-gu Tax Office, the Plaintiff’s head of the tax office, notified the Plaintiff of the following comprehensive income tax on the annual XX, and the annual XX does not pay the total of KRW 125,092,250 to the present.

Items of Taxation

Year

Date of establishment of tax liability

Date of Notice

Deadline for payment

Current arrears

Global Income Tax

208

December 31, 2008

February 3, 2010

April 13, 2010

15,074,010 won

Global Income Tax

2007

December 31, 2007

May 1, 2010

August 2, 2010

10,018,240 won

Total

125,092,250 won

B. Max 00 died on February 6, 2011, and the annual Y, XY, YY, Defendant’s annual YY, and the heir of the net ○○○, annual Z, annual ZZ, annual ZA, and annual YB, etc. were succeeded to or succeeded by inheritance or succession, and the annual Y’s shares are 1/5.

C. There was each real estate listed in the separate sheet with the inherited property of 00 ○○ (which refers only to the land share listed in paragraph (1) of the separate sheet among them; it refers only to the land share in the specific building listed in Paragraph (2) of the separate sheet; hereinafter referred to as the building in this case; hereinafter referred to as the "each real estate of this case"). As to the land building of this case, the copy of the real estate register is indicated as the first floor and the second floor of the sapch roof (hereinafter referred to as the "building listed in the separate sheet for convenience"), but the current status is the first floor and the third floor of the ground, as shown in Paragraph (2) of the separate sheet, and the 00 ○○ owned the building of this case specified in the separate sheet as stated in Paragraph (2) of the separate sheet and exercised its ownership by independently entering into a lease contract with the lessee.

D. Annual, on February 6, 201, the Plaintiff had no particular property other than the inheritance shares of each of the instant real estate. On the part of Defendant Do○○○, Defendant annual ○○ agreed on the division of inherited property (hereinafter “instant agreement on division of inherited property”). Accordingly, Defendant Do○○ had completed the registration of ownership transfer on the ground of the instant agreement on division of inherited property under the Seoul Central District Court No. 10324, April 26, 2013, on the instant land and buildings entered on the registry, by asserting that Defendant Do○○ purchased each of the instant real estate from Defendant Do○○○ on April 19, 201, and that the instant land and buildings entered on the registry were inherited by Defendant Do○○, Seoul Central District Court received on April 29, 2013, and exercised the ownership transfer registration on each of the instant real estate as the owner.

E. On February 6, 201, the market price of each of the instant real estate is KRW 418,050,000 (=725,850,000 x 92.9/161.3 shares) of the instant land; KRW 506,712,430 in total; KRW 506,62,430 in the instant building; and KRW 468,959,200 in the instant land (=814,242,400 x 92.3 shares x 92.9/161.3 shares); KRW 68,692,730 in total; and KRW 537,651,930 in the instant building around April 20, 2016, which is close to the date of the closing of pleadings.

F. Meanwhile, the instant building is a structure in which one household is able to reside in each of the two households under the ground and the first and third floors, and around February 6, 201, the date of the consultation on the division of the instant inherited property, around February 201, the date of the consultation on the division of the instant inherited property, the Han-A and ParkBB were residing in the underground floor, and the first floor, the one-story. ① Korea-A shall enter into a lease agreement with KRW 20 million on August 19, 2009, and received a fixed date after completing a move-in report on August 19, 2009. ② ParkBB entered into a move-in report with KRW 20,000,000, and resided in around October 29, 201, and died on March 4, 201, and after the ParkD was living together with it, it was concluded with the fixed date of move-in report on March 4, 2008.

G. After the agreement on division of the instant inherited property, the Defendants terminated a lease agreement with Korea-A on April 19, 2012, and returned KRW 20,000,000, the lease deposit.

[Ground of recognition] Facts without dispute, Gap 1 through 10 evidence, Eul 1 through 16 evidence (including paper numbers), the result of the appraiser's survey and appraisal conducted by ○○○, the result of the appraiser's market price appraisal conducted by ○○○, the fact inquiry conducted by the head of Yongsan-gu Seoul Metropolitan City Yongsan-gu Office, the purport of the whole pleadings, and the purport

2. Determination as to the defendants' defense prior to the merits

A. The defendants' assertion

Defendant ○○, on April 26, 2013, completed the registration of ownership transfer with respect to the instant land and the building on the registry, and the relevant registration data was submitted to the competent tax office around July 31, 2013. As such, the Plaintiff was aware of the fact that the only disposal act of the instant property was made at the latest around August 2013. However, the instant lawsuit was filed on November 21, 2014, which was later than one year thereafter, and thus unlawful.

B. Determination

In the exercise of creditor's right of revocation, "the date when the creditor becomes aware of the ground for revocation" means the date when the creditor becomes aware of the requirements for creditor's right of revocation, i.e., the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act with the knowledge that he/she would prejudice the creditor. Thus, it is not sufficient that the debtor merely knew of the fact that the debtor conducted a disposal act of the property, and it is necessary to inform the debtor of the fact that the juristic act was insufficient to fully satisfy the claim due to the lack of joint security of the claim or the lack of joint security already occurred due to the fact that the juristic act was prejudicial to the creditor, and that the debtor had the intent to cause harm. Furthermore, it is presumed that the debtor was aware of the objective fact of the fraudulent act, and the burden of proof as to the lapse of the exclusion period is the party to the creditor's revocation lawsuit (see, e.g., Supreme Court Decision 2013Da5855, Apr. 26, 2013).

In this case, as seen earlier, the fact that Defendant Y○○○ completed the registration of ownership transfer with respect to the instant land and building on the registry on April 26, 2013 is recognized. However, even if considering the grounds alleged by the Defendants, such as the Plaintiff’s knowledge that there was an act of disposal of the property of the deferred scrap metal at the latest around August 2013 as the registration data was submitted to the competent tax office pursuant to the relevant law, it is difficult to deem that the Plaintiff was aware of the objective facts of the fraudulent act around that time, apart from the fact that the Plaintiff could have known that there was a fraudulent act. Accordingly, the Defendants’ defense is without merit.

3. Judgment on the merits

(a)the existence of preserved claims;

According to the above facts, the Plaintiff’s claim of KRW 125,092,250 against the annual XX was established before the agreement on division of the inherited property of this case, and thus, the Plaintiff’s claim of KRW 125,092,250 was established before the agreement on division

(b) The intention to commit fraudulent acts and to injure himself;

Since the agreement on division of inherited property is a juristic act aimed at property rights by its nature, it can be subject to the exercise of the right to revoke a fraudulent act. The case where a debtor in excess of debt already gives up his/her right to inherited property while holding a divided agreement on the inherited property and thereby joint security against general creditors has been reduced, in principle, constitutes a fraudulent act against the creditor (see, e.g., Supreme Court Decision 2007Da29119, Jul. 26, 2007)

As to the instant case, since the annual ratio of excess is reduced due to the waiver of the agreement on the division of the inherited property of this case with respect to each of the instant real estate, the joint collateral against the general creditors including the Plaintiff was reduced, it is reasonable to view that the part on the 1/5 share, which is the inheritance share in the annual ratio, among the agreement on the division of the inherited property of this case, constitutes fraudulent act in relation to the general creditors including the Plaintiff, and that the annual ratio constitutes a fraudulent act in relation to the general creditors including the Plaintiff, and that, barring any special circumstance, it is presumed that the annual ratio is likely to harm the general creditors including the Plaintiff

(c) Revocation of fraudulent act and reinstatement;

(1) In a case where a legal act on a certain real estate constitutes a fraudulent act, in principle, revocation of the fraudulent act and an order to recover the real estate itself, such as cancellation of the registration of transfer of ownership, is required. However, in a case where a fraudulent act was committed with respect to the real estate in which a lessee or a small-sum lessee, who has the requirements for counterclaim and the fixed date set forth in the Housing Lease Protection Act, such fraudulent act is established only within the extent of the balance obtained by deducting the aforementioned lease deposit from the value of the real estate, and thus, in a case where the beneficiary performed the obligation to return the lease deposit with the right to preferential reimbursement after the fraudulent act, the revocation of the fraudulent act and the order to recover the real estate itself would result in a violation of the fairness and fairness by recovering the portion that was not initially secured by the general creditors’ joint security. Thus, from the value of the real estate, the fraudulent act may be revoked and ordered to compensate for its value (see, e.g., Supreme Court Decision 2012Da10

(2) In the instant case, as seen earlier in the facts of recognition, tenants with requirements for setting up against the Housing Lease Protection Act, such as HanA, ParkB (LD), and JungCC, exist in each of the instant real estate, and they obtained preferential payment right by obtaining a fixed date prior to the statutory due date of the Plaintiff’s tax claim, or by satisfying the requirements of small lessee who is entitled to preferential payment right under the Housing Lease Protection Act. Since the Defendants, the beneficiaries and the subsequent purchaser after the instant fraudulent act, performed the obligation to return the lease deposit to Han who is entitled to preferential payment right after the instant fraudulent act, restitution following the revocation of the fraudulent act shall be made by means of compensation for value.

(3) Furthermore, regarding the scope of compensation for value, as seen earlier, the market price equivalent to the annual Article 107,530,386 (=537,651,930 won x 1/5 shares) of each real estate of this case among the real estate of this case around April 20, 2016, is presumed to be the same value as at the time of the closing of the argument of this case, and the amount equivalent to the annual Article 15 shares out of the sum of lease deposits such as HanA, ParkB(DD), andCC (20,000 + 20,000,000 + 48,00,000,000 won + 125,29,200,000,000 won) x1/5 shares x386,000 won (i.e., the amount of the Plaintiff’s claim for compensation for value of this case’s real estate of this case’s 125,209,3086306.36

D. Determination as to the defendants' assertion

(1) The Defendants asserted that, at the time of the instant fraudulent act, KimA entered into a lease agreement of KRW 55,00,000 on the second floor of the instant building at the time of the instant fraudulent act and completed the move-in report on April 10, 2007, etc., they should consider the scope of compensation for small amount of KRW 25,00,00 as well as KRW 25,00,00, which is subject to preferential payment right under the Housing Lease Protection Act, in determining the scope of compensation for damages. However, it is not sufficient to acknowledge that the Plaintiff entered into a lease agreement as alleged by the Defendants on the second floor of the instant building and the fact-finding on the Nowon-jin 1,00,000 in the Dongjak-gu Seoul Metropolitan Government Nowon-gu Seoul Metropolitan Government

(2) The Defendants asserted to the effect that, in determining the scope of compensation for value, the amount equivalent to the annual ratio of inheritance shares among the total amount of the lease deposit shall not be deducted and the total amount thereof shall be deducted.

However, even if the obligation of co-inheritors to return the lease deposit is indivisible, the general creditors in XX may secure as joint security the portion which deducts the total amount of the lease deposit equivalent to the percentage of inheritance in XX, by applying mutatis mutandis the latter part of Article 368(2) of the Civil Act, by analogying the latter part of Article 368(2) of the Civil Act. Therefore, it is reasonable to deem that the above part is offered as joint security by general creditors

E. Sub-decision

Ultimately, the agreement on the division of the inherited property of this case relating to the shares of 1/5 shares among each of the instant real property between Defendant Da○○○ and annual XX is revoked within the limit of 89,930,386 won. The Defendants jointly have the obligation to jointly pay to the Plaintiff the amount of 89,930,386 won as value compensation and damages for delay calculated at the rate of 5% per annum as provided by the Civil Act from the day following the day this decision became final to

4. Conclusion

Therefore, the plaintiff's claim of this case against the defendants is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.