Suwon District Court 201 Gohap23623 ( October 31, 2012)

It is insufficient to readily conclude that the act of paying money is a donation solely on the basis of the fact that the money was paid.

The fact that the payment of money alone is insufficient to readily conclude that it was a donation, and there was a collusion to harm other creditors at the time of payment with the intent to repay debts, or there was no evidence to prove that there was an intent to harm other creditors by paying only to the above defendant among creditors, and that it did not reach the status of excess of debts.

2012Na52696 Revocation of Fraudulent Act

Appellant and Appellant

Korea

ParkA et al.

Suwon District Court Decision 201Gahap23623 Decided May 31, 2012

November 20, 2012

December 6, 2012

1. The part against DefendantCC in the judgment of the first instance is revoked and the Plaintiff’s claim corresponding to that part is dismissed.

2. (a) Of the judgment of the first instance, the part of the judgment against the Plaintiff falling under the part cited below against the Defendant Park Jong-A shall be revoked.

B. The contract for the donation of KRW 000 between the formerB and the Defendant LA on November 28, 2007 shall be revoked. Defendant LA shall pay to the Plaintiff KRW 000 and 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 the defendant Lee CC is dismissed.

4. The total cost of the lawsuit between the Plaintiff and the Defendant InCC is borne by the Plaintiff, and the Plaintiff and the Defendant in this case’s total cost is borne by the Defendant in this case.

1. Purport of claim

A. As to Defendant ParkA

1) It is so ordered as per Disposition 2-b.

2) The contract for donation of KRW 000,00, which was concluded on January 11, 2008 between B and Defendant LA shall be revoked. Defendant LA shall pay to the Plaintiff the amount of KRW 00 and the amount at the rate of KRW 5% per annum from the day following the day on which this judgment became final and conclusive to the day of full payment (this part was cited in the judgment of the first instance, but it was excluded from the scope of the party’s trial due to Defendant LA’s failure to file an appeal against it).

B. As to Defendant ACC

Pursuant to the contract between JeonB and Lee InCC on November 23, 2007, the agreement on the donation of KRW 000,000, and the agreement on the donation of KRW 000,000 entered into on September 8, 2008 shall be revoked. The DefendantCC shall pay to the Plaintiff 5% interest per annum from the day following the date this decision became final and conclusive to the day of full payment.

2. Purport of appeal

A. The plaintiff

1) As to the defendant Park Jong-A, paragraph 2 of this Article is applied.

2) As to Defendant ACC

The decision of the first instance court against Defendant CC is revoked. The agreement between BB and Defendant CC on the donation of KRW 000 out of KRW 000,000 entered into on November 23, 2007 shall be revoked. Defendant CC shall pay to the Plaintiff 5% interest per annum from the day after the date this decision became final and conclusive to the day of full payment.

B. Defendant ACC

Paragraph (1) shall apply.

1. Determination as to Defendant Park Jong-A’s defense of this safety

Defendant Park Jong-A, and the Plaintiff, around November 26, 2007, could sufficiently be aware of the fact that the formerB paid KRW 000 to the Defendant on November 28, 2007, to the said Defendant through a tax investigation into BB, and that the lawsuit against the said Defendant filed on November 25, 201, one year after the date of exclusion, against the said Defendant was unlawful. In exercising the obligee’s right of revocation, “the date when the obligee became aware of the cause of revocation” means the date when the obligee became aware of the fact that the obligor committed a fraudulent act while being aware of the fact that the obligor committed a disposal of the property, and that the obligor had no specific and specific intent to cause harm to the obligor, and that the obligee had no evidence to prove the existence of the fraudulent act before the date of exclusion period constitutes “the date when the obligee became aware of the cause of revocation” as of November 21, 2006. Meanwhile, there was no evidence to prove that the Plaintiff had paid to the other party to the lawsuit seeking revocation.

2. Judgment on the merits

A. Imposition of transfer income tax on BB and payment of money to the Defendants of BB

1) Facts of recognition

B. On November 1, 2007, the former BOB had been 00,000 won for each of 00,000 won and 00,000 won for each of 00,000 won and 00,000 won for each of 00,000 won for payment of the transfer income tax under the name of 00,000 won for each of 00,000 won for 20,000 won for each of 00,000 won for transfer income tax, and 00,000,000 won for each of 0,000,000 won for transfer income tax to 0,000 won for each of 0,000 won for transfer income tax to 0,00 won for each of 0,000,000 won for 20,000 won for transfer income tax to 0,000 won for each of the above 0,000 won for transfer.

[Evidence] The respective descriptions of Gap evidence 1-2, Gap evidence 2, Eul evidence 3, 4, 7, 8, 5, 1, 3, and 6, and 9, and the whole purport of the arguments.

[Evidence Evidence] Part of the witness B before the court of first instance testimony that he received the down payment of 000 won in the above OO-dong land.

(ii)the occurrence of preserved claims;

The obligation to pay capital gains tax is established on the last day of the month in which the amount which becomes the tax base of the principal tax (in this case, November 30, 2007), but it is established only through the procedure of determining the tax base and the amount of the principal tax, and the obligation to pay capital gains tax established on the fulfillment of the above taxation requirement is merely an abstract existence, so in order for the State to claim performance thereof, it must take a procedure to specifically determine the content of the tax obligation established. In addition, in principle, claims that can be protected by the obligee’s right of revocation should, while being aware that the obligor would prejudice the obligee, be incurred before doing a legal act for the purpose of property right. However, there is high probability that the legal relationship which has already been established at the time of the legal act, and that it is highly probable in the near future, and that the obligation has been established in the near future, and that the obligation is also established on the basis of the obligor’s account, and that it is probable that the total amount of the capital gains tax was established at the 0th day before and after the date of pleading.

3) Criteria for determining fraudulent act

If a debtor has donated his own property to another person in excess of his/her obligation, such act would constitute a fraudulent act unless there are special circumstances. However, it does not constitute a fraudulent act in principle unless the debtor, in collusion with some creditors, made repayment with the intent of undermining other creditors, unless the debtor makes payment. However, as the creditor seeking revocation of a fraudulent act claims that the debtor's monetary payment to the beneficiary is a gift to the beneficiary, the creditor's assertion that the monetary payment to the beneficiary was made as a gift, and as seen in the above legal reasoning, it is only a denial of the creditor's assertion that the debtor's monetary payment is made as a gift, and as seen in the above legal reasoning, the contents that the creditor's assertion and proof should be raised and proved depending on whether the debtor's monetary payment is a gift or reimbursement. Accordingly, the creditor's monetary payment to be recognized as a fraudulent act constitutes a gift, and the creditor's intent to pay it should be proved to constitute a fraudulent act.

B. Determination as to the claim against Defendant ACC

1) Whether the formerB paid KRW 000 as the intention of donation to the Defendant CC on November 23, 2007

On November 23, 2007, the Plaintiff asserted that the formerB deposited KRW 000 to the post office account under the name of the DefendantCC was donated and that the said KRW 000 should be revoked as a fraudulent act. The Plaintiff asserted that the said KRW 110.00,000 was repaid for the existing loan claim.

On the other hand, the plaintiff was unable to submit evidence to prove that the above payments by BB were donations, and Eul and Eul and Eul and Eul were 3 Eul, and Eul were 5, and Eul were 100,000 won and 100,000 won were 10,000 won and 20,000 won were 10,000 won and 30,000 won were 10,000 won and 10,000 won were 10,000 won and 10,000 won were 10,000 won and 20,000 won were 10,000 won and 30,000 won were 10,000 won and 10,000 won were 20,000 won and 20,000 won were 7,00 won were 10,000 won and 20,000 won were 30,000 won were 7,00 won.

2) Whether the formerB paid KRW 000 as the intent to donate to DefendantCC on September 8, 2008

The plaintiff, as of September 8, 2008, transferred 00 won to the above 00 OB account under the name of 00.00 won to the above 00 OB account, and the former 200 won was deposited to the 00 OB account under the name of 0.0 on September 8, 2008, and there is no other evidence to believe that the former 00 won was deposited to the 00 OB account under the name of 00, 2000 won, and that the former 00 OB account was deposited to the 000 OB account under the name of 00, 110, 2000, 300,000,000 won, and 10,000,000 won, and 10,000,000,000 won, respectively, were deposited to the 0.0,000 won, 16,000,000 won, and 13,0000

C. Determination as to the claim against Defendant ParkA

1) Whether the formerB paid KRW 000 on November 28, 2007 with the intention of donation

Defendant Park Jong-B decided to purchase the above OB land jointly with the above 0B, and paid 00 won equivalent to 1/2 of the total purchase price and all expenses to BB on June 3, 2003, and on November 1, 2007, the former 00 won was over 00, and the former 00 won was over 00,000 won paid for the above 200,000 won to the Defendant’s 00,000 won for the above 00,000 won for the above 00,000 won for the above 00,000 won for the above 20,000,000 won for the above 0,000 won for the 0,000 won for the above 20,000 won for the above 0,000 won for the 0,000 won for the above 20,000 won for the 0,000 won for the above 20,000.

(ii) the financial status of the BB;

The financial status of BB at the time of November 28, 2007 is as follows.

Any balance of the OO-dong land of November 23, 2007 000 won

FOO 1/2 of the housing unit 1/2 (7. 25 July 25, 2008, purchase price of KRW 000 x 1/2)

From 00 won to November 23, 2007, after deducting 000 won paid to Defendant LCC.

(B) In full view of the purport of the argument in Gap evidence 4, although Eul was found to have completed the registration of ownership transfer with respect to 00 OO-dong 00 m2m2 on February 11, 2004, Eul sold the above macro-dong land at 000 won on January 12, 2004 in consideration of the overall purport of the argument in each entry in Gap evidence 7-1 through 3, and Kim NN sold the above pro-dong land to Suwon Kim NN on March 10, 2004, and Kim NN was decided to prohibit the provisional disposition of real estate on March 10, 2004 by Suwon District Court, NN was decided to prohibit the provisional disposition of real estate on March 10, 204, and formerB had sold the above O-dong land to Gangnam through Kim NN on November 2, 2009, and had sold the ownership transfer registration with respect to the above O-dong land at 00 m28,2007.

[negative Property]

양도소득세 채무 000원(2008. 1. 11.경 납부한 000원 + 2009. 3. 20. 수정신고 당시 산정된 000원) 위 OOO동 주택 임차보증금반환채무 000원(000원 x 1/2) 이QQ， 조RR， 성SSS에 대한 채무 000원(갑 3호증의 5， 6， 10) 합계 000원

(iii) revocation of fraudulent act and restitution to its original state;

According to the above facts, the formerB had net property of 000 won (00 won - 393,019,726 won) as of November 28, 2007, and on the same day, it seems that each of the above donations made by the former B to Defendant LA was in excess of its obligation by donating KRW 000 to Defendant LA. Therefore, each of the above donations made by the former B B to Defendant LA constitutes a fraudulent act, and the former BB's intent to injure himself is recognized, and the beneficiary is presumed to have been maliciously committed by Defendant LA.

4) Defendant Park Jong-A’s bona fide defense

Defendant Park Jong-A had not known from BB that it would prejudice the obligee by the above gift act at the time of donation on November 28, 2007, and therefore, Defendant Park Jong-A was a bona fide beneficiary, but there is no evidence to acknowledge it, and the above Defendant’s defense is without merit.

5) Sub-decisions

Considering that the subject matter of the aforementioned fraudulent act is impossible or considerably difficult to return originals in money, the restitution shall be made by means of compensation for value. Therefore, the aforementioned contract for each gift concluded between BB and Defendant LA, and Defendant LA is obliged to cancel the contract, and Defendant LA is obliged to pay the Plaintiff 00 won with compensation for value at the rate of 5% per annum from the day following the day when the judgment became final and conclusive to the day when the payment is made.

3. Conclusion

Therefore, the plaintiff's claim against the defendant Lee In-CC is dismissed as it is without merit, and the claim against the defendant Park In-bok is justified as well, and the judgment of the court of first instance is inappropriate as it is partially different from this conclusion. Therefore, the plaintiff's appeal against the defendant Lee In-CC is dismissed as it is without merit, and the appeal against the defendant Lee In-A and appeal against the plaintiff Lee In-A are with merit.