It seems that it was difficult to ascertain that the act of disposal of one of the real estate was a fraudulent act solely based on the results of inquiring about the details of the real estate in question.

It is reasonable to view that the judgment of the case of revoking other fraudulent acts was perused, and that the facts of the fraudulent act should be known through the inspection of the entire certificate of the relevant registered matters.

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

2018 Ghana 107524 Revocation of Fraudulent Act

Korea

Ma-○

April 18, 2019

May 30, 2019

1. The sales contract concluded by the Defendant and SongA on February 13, 2014 with respect to real estate listed in the separate sheet shall be revoked within the limit of KRW 28,346,902.

2. The defendant shall pay to the plaintiff 28,346,902 interest rate of 5% per annum from the day following the day when the judgment of this case is finalized to the day of full payment.

3. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Facts of recognition;

A. Around November 2010, SongB, which was referred to, donated a parcel of land outside 00-0 and 21 lots of land (hereinafter referred to as “the gift land of this case”) (hereinafter referred to as “the gift of this case”) from ○○○○○○, ○○○, ○○-gun, ○○○, ○○, ○○-gun,” and sold all of the gift land of this case to a third party (hereinafter referred to as “the sale of this case”).

B. On November 18, 2010, Song-A submitted to the head of the competent tax office with regard to the donation of this case, the tax amount to be paid is zero won on the premise that the land of this case constitutes farmland, etc. donated to farming children under the Restriction of Special Taxation Act. On December 31, 2013, upon submitting a report and statement of tax base of transfer income tax, the amount of tax to be paid is KRW 17,442,561. However, Song-A was transferred the farmland, etc. whose gift tax has been reduced or exempted within five years, and thus, the amount equivalent to the tax amount to be reduced or exempted was collected at KRW 17,442,561.

C. Meanwhile, as of January 31, 2013, with respect to the real estate listed in the separate sheet owned by Song-A (hereinafter referred to as the “multi-unit housing of this case”), the establishment registration of a neighboring mortgage (hereinafter referred to as the “establishment registration of a neighboring mortgage”) with the debtor as of 204,00,000 won as of 31,00, with the maximum debt amount as of 204,000 won as of 14,000, with the debtor as of 14, 2013 as Song-A, the establishment registration of a mortgage (hereinafter referred to as the “mortgage 2”) was completed on 150,00,000 won as of 150,000 won as of 0,000 won as of 10,000 won as of February 14, 2014, the establishment registration of a mortgage was cancelled to 30,000,000 won under the name of 16,301,0000.

D. On February 13, 2014, the instant apartment was the only real estate owned by Song-A at the time of the conclusion of the instant sales contract. The market price of the instant apartment as of February 13, 2014 and as of the date of closing the argument in the instant case is KRW 320,000,000.

[Ground of recognition] Facts without dispute, Gap 2, 4, 5, 7, 11, 12 evidence, Eul 5 and 6 evidence (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiff

The Defendant’s obligation to pay the instant gift tax and the instant transfer income tax to the Plaintiff constitutes a fraudulent act when concluding a sales contract on February 13, 2014 with respect to the instant apartment (hereinafter “instant sales contract”) and completing the instant transfer registration accordingly, constitutes a fraudulent act. Therefore, the instant sales contract should be revoked as a fraudulent act. Accordingly, the Defendant is obligated to pay the Plaintiff the amount of KRW 28,346,902 as compensation for damages for the damages incurred therefrom (i.e., the market value of the instant apartment 320,000,000 - (i.e., the total amount of the secured debt of the Defendant’s 1,200,000,000 - KRW 271,653,098 - 271,653,098 of the secured debt of the instant apartment 20,000 won paid by the Defendant to the Plaintiff.

B. Defendant

1) Around April 2014, the transfer income tax imposed by the head of the HH tax office had already been in arrears and the amount of each delinquent amount was withheld on May 27, 2014 and June 19, 2014, and the Plaintiff completed the attachment registration on other real estate owned by the SongA. As such, in the course of taking measures for postponement of reorganization and seizure as above, the Plaintiff first inquired about the entire property of the SongA. As such, the Plaintiff should be deemed to have known about around February 2014, that the SongA already disposed of the apartment of this case, as well as the fact that the value of the property owned after the disposal does not reach the delinquent tax amount. A lawsuit for revocation of the fraudulent act filed on March 13, 2018, which was later than one year thereafter, was unlawful, since it had been filed after the lapse of the exclusion period.

2) The gift tax and transfer income tax claim claim (hereinafter “each of the instant taxation claims”) alleged by the Plaintiff as preserved bonds is not arising before the conclusion of the instant sales contract, but thereafter determined and announced around September 15, 2015, which was thereafter, and thus, cannot be deemed as preserved bonds subject to protection of revocation of fraudulent act.

3) At the time of the instant sales contract, SongA’s shares of the agricultural company as well as the instant apartment.

The instant sales contract does not constitute a fraudulent act, as it has been held as active property a claim for a loan amounting to KRW 640,000,000 against AA.

4) At the time of entering into the instant sales contract, the Defendant was unaware of the fact that Song was in excess of its obligation, and the Defendant purchased the instant apartment in excess of KRW 320 million, a market price, and repaid approximately KRW 270 million,00,000,000 in total of the secured debt of KRW 1 and 200,000,000,000 in lieu of the total amount of the secured debt.

3. Determination

A. Whether the exclusion period has expired

1) In the exercise of the obligee’s right of revocation, “the date when the obligee becomes aware of the cause for revocation” means the date when the obligor becomes aware of the fact that the obligee had committed a fraudulent act while being aware that it would prejudice the obligee. This is insufficient to simply recognize the fact that the obligor conducted a disposal of the property, and further, to know the existence of a specific fraudulent act and the fact that the obligor had an intent to deceive the obligor (see, e.g., Supreme Court Decision 2007Da63102, Mar. 26, 2009).

2) Comprehensively taking account of the purport of the entire pleadings as to Gap evidence Nos. 6 and 8, Song-A failed to pay capital gains tax of 35,307,850 won (the first due date for payment, March 31, 2014) determined by the head of the HHH to impose the sale of this case on or around March 2014, and on the transfer of a building on or around December 2013 ○○○-ri 73-4 ground (the first due date for payment, March 31, 2014), the head of the HH head of the relevant tax office did not pay capital gains tax of 4,010,370 won (the first due date for payment, April 30, 2014) (the first due date for payment, May 27, 2014, and the fact that the pertinent delinquent amount was deferred on or around June 19, 2014).

According to the regulations on the collection of national taxes, when a person in charge of disposition on default fails to dispose of a delinquent taxpayer at least ten million won without any property or missing, the person in charge of disposition on default shall prepare a written review of the withholding of import disposition (Article 128), and shall state all the details of the delinquent taxpayer's property when preparing the written review (Article 128). Thus, it is reasonable to deem that the Plaintiff, as the Plaintiff, at the time from May to June 2014, 2014, was aware of the circumstances that the Plaintiff had already disposed of the apartment house of this case and the real estate owned by Song-A as well as the real estate owned by Song-dong at the time, were all the land of △dong.

However, according to the foregoing evidence, each delinquent amount, which was withheld as above, can be acknowledged as the fact that the postponement of reorganization was revoked on or around February 2015, and the fact that the gift tax of this case and the transfer income tax of this case was determined on or around September 2015, which was seven months after the date on which the transfer income tax of this case was reduced or exempted as seen earlier. As such, the fact that the Plaintiff had sold the apartment land of this case within five years from the date on or around May 2014 to June 2014, it is difficult to view that the Plaintiff already disposed of the apartment land of this case to the extent that the Plaintiff already disposed of the apartment land of this case, even if it was not known that the Plaintiff already disposed of the apartment land of this case by the date on or around February 2014.

3) According to the evidence evidence evidence No. 3, the gift tax of this case and the transfer income tax of this case, which was determined and imposed by SongA as of October 15, 2015 on or around September 15, 2015, were delinquent, and the amount in arrears was also suspended at that time. Since the Plaintiff was again inquired of the entire property of SongA around the same time, it is reasonable to view that the Plaintiff was aware of the circumstances where Song disposed of the apartment of this case around February 2014 and the land of △-dong that acquired after the disposal of the apartment of this case from March 2014 to December 2014.

However, in full view of the purport of the entire pleadings in Gap evidence No. 5, the instant case around September 2013

From the time of sale to October 2015, the real estate acquired by Song to a third party and transferred its ownership to a third party is no less than the total number of real estate. On February 2, 2014, Song can be recognized that the land of △△△dong was newly acquired and again sold after the disposal of the apartment of this case. From the Plaintiff’s standpoint, it is difficult for the Plaintiff to ascertain that the disposal of the apartment of this case, one of them was a fraudulent act solely based on the results of inquiring about the details of the real estate owned and disposed of in the name of Song-A, and that it was difficult to ascertain that the disposal of the apartment of this case was a fraudulent act. Other reasons for the disposal of the apartment of this case were the donation or the creation of a security right, and there was no special relationship between the Defendant and Song-A, even if the Plaintiff was aware of the entire property owned by Song-dong around October 2015 to November 2015, it is difficult to deem that the Plaintiff disposed of the apartment of this case to the same extent.

4) According to the evidence Nos. 1 and 4, around February 13, 2018, it is reasonable to view that the Plaintiff was aware of the fact that the instant sales contract was a fraudulent act with the knowledge that it would prejudice the Plaintiff only when it was around February 13, 2018, when the Plaintiff had known that the instant sales contract was a fraudulent act with the knowledge that it would prejudice the Plaintiff. The instant lawsuit filed on March 13, 2018, which was lawful.

5) The Defendant’s defense of this case was raised after the lapse of the exclusion period is without merit.

(c)

B. Whether the Plaintiff recognized the preserved claim

1) In principle, it is required that a claim protected by the obligee’s right of revocation has arisen prior to the commission of an act that can be viewed as a fraudulent act. However, at the time of a fraudulent act, there is a high probability that there has already been a legal relationship that serves as the basis of the establishment of a claim, and that the claim has been established in the near future in the near future, and where a claim has been created by realizing the probability in the near future, such claim may also become a preserved claim (see, e.g., Supreme Court Decision 2000Da37821, Mar. 23, 2001).

2) On or around September 2015, the Plaintiff would have acquired each of the instant taxation claims against Song-A. However, on or around September 2013, the portion on KRW 82,496,456 with the exception of at least the amount of gift tax collected at least 91,321,465 won and the additional tax, among each of the instant taxation claims, the amount of which was reduced or exempted, was within five years after Song was reduced or exempted from the gift tax, and there was a legal relationship on the basis of establishment by disposing of the instant donated property. Since the Plaintiff was aware of the disposition, and thereafter, it was highly probable for the Plaintiff to establish the instant taxation claim based on the said legal relationship in the near future in light of the fact that the instant gift tax and the instant transfer income tax were established through a series of procedures to determine the imposition of the gift tax and the instant transfer income tax, each of the instant taxation claims against Song-A was established, and thus, each of the instant taxation claims against the Plaintiff may be the obligee’s right of revocation.

C. Whether fraudulent act and intent to commit suicide are recognized

1) In order to constitute a fraudulent act, the debtor due to such act

In other words, the debtor's passive property should be more than active property, and even if the debtor's active property among his/her active property at the time of his/her disposal of the property exceeds the creditor's amount of claims, the calculation of his/her active property should be excluded from the assets that cannot act as joint security for claims because there is no substantial property value in calculating his/her active property, unless there are other special circumstances. In cases of his/her assets are claims, it shall be reasonably determined whether it is reliable to receive repayment, and shall be included in active property only where it is affirmed (see Supreme Court Decision 2001Da32533, Oct. 12, 2001).

2) Comprehensively taking account of the overall purport of the arguments in the evidence Nos. 3, 5, 8, and 10, the apartment complex of this case was all the market price of 320,000,000 won, which can serve as a joint collateral at the time of the instant sales contract. Although Song has acquired the instant apartment complex of this case after disposing of it, the fact that Song has no positive property of Song-A, which can serve as a joint collateral as at the date of the closing of argument in this case, once again sold the apartment complex of this case. Each of the statements in the evidence Nos. 3 and 4 are stated in the evidence Nos. 3 and 4, and it is not clear that the loan certificate was made on May 15, 2014 that the claim against the agricultural company A, Inc. of Song-A, a joint collateral, could not be easily repaid in light of the legal principles as seen earlier.

However, at the time of the instant purchase and sale contract, the legal relationship, which forms the basis for establishment with respect to the aggregate of KRW 173,817,921 among the respective tax claims of this case, has already arisen, as seen earlier. According to the evidence evidence Nos. 10 and No. 6, in addition, SongA, as the secured obligation for the establishment of the first neighboring mortgage established on the apartment of this case, was liable for loans of KRW 170,00,000 to ○○ Nonghyup as the secured obligation for the establishment of the first neighboring mortgage established on the apartment of this case within the scope of the maximum debt amount, as the secured obligation of KRW 10,00,000 against KimA as the secured obligation for the second neighboring mortgage establishment registration, and was liable for approximately KRW 19,721,233,00 within the scope of the maximum debt amount. Accordingly, it can be acknowledged that the amount exceeding the leased property of Song A at the time exceeds the total amount of KRW 41,535,000.

3) Unless there are special circumstances, the act that the debtor sells real estate, which is the only property of his own, and alters in money easily for consumption, becomes a fraudulent act against the creditor, and is presumed to have the debtor's intent to commit fraud, and the burden of proving that the purchaser or the transferee did not maliciously act is the beneficiary (see, e.g., Supreme Court Decision 2000Da41875, Apr. 24, 2001). The fact that the defendant and the defendant entered into the sales contract of this case with the content of selling the apartment of this case at KRW 320,00,000 in the debt excess status as recognized in the above paragraph (2) is not a dispute between the parties, and thus, the sales contract of this case is presumed to be a fraudulent act against the plaintiff who is the debtor, and the defendant's intention is presumed to be the debtor and the beneficiary, the beneficiary.

D. As to the defendant's bona fide defense

After the registration of the instant apartment was completed under the instant sales contract in the name of the Defendant with respect to the instant apartment, the Defendant repaid KRW 171,653,098 to the ○○ Nonghyup on June 13, 2014 as the secured debt for the registration of the establishment of the first neighboring mortgage on June 13, 2014, in lieu of KRW 171,653,098, the Defendant paid KRW 271,653,098, in lieu of the secured debt for the registration of the establishment of the second neighboring mortgage on June 13, 2014, to KimA,

However, the Defendant’s previous lawsuit (Tgu local area) for the first time on the sales price of the instant sales contract.

The court asserted that the amount of the purchase price was KRW 320,000,000 in the case of this case, but the previous argument was changed to the assertion that the amount of the purchase price was KRW 270,000,000 in the case of this case. The defendant's argument about the amount of the purchase price and the payment method was in itself difficult to believe, and the sale price of the apartment of this case is KRW 320,00,000 in the transfer registration of this case. The defendant paid KRW 320,000 in the purchase price of this case, KRW 320,000 in the purchase price of this case, KRW 270,000 in the purchase price of this case and KRW 320,000 in the purchase price of this case, and the defendant did not pay KRW 50,000 in the collateral obligation of the establishment registration of the second and the remainder was not aware of the purchase price of KRW 50,000 in the purchase price of this case.

The defendant's bona fide defense is without merit.

(e) The method of revocation of fraudulent act and reinstatement;

1) Ultimately, the instant sales contract constitutes a fraudulent act and ought to be revoked.

2) Revocation of a fraudulent act when the establishment registration of mortgage was cancelled by repayment after a fraudulent act.

On the other hand, an order to recover the real estate itself is an order to recover the portion which was not originally owned by the general creditors as well as the portion which was not jointly secured by the general creditors. Thus, from the value of the real estate, a fraudulent act may be revoked within the extent of the balance remaining after deducting the secured debt amount of the mortgage from the value of the real estate, and the calculation of such value shall be based on the date of conclusion of pleadings at fact-finding proceedings (see, e.g., Supreme Court Decision 98Da41490, Sept. 7, 199). Meanwhile, each obligee meeting the requirements for obligee’s right of revocation may seek restitution after cancelling the obligor’s disposal of the property as its own right and seek restitution (see, e.g., Supreme Court Decision 98Da41490, Sept. 7, 1999). In a case where each obligee files a revocation and restitution lawsuit at the same time or at this time, these lawsuits do not constitute a double lawsuit, and even if one obligee’s right protection interest becomes final and conclusive, a subsequent obligee’s claim for restitution cannot be deemed to overlap within the extent of rights (see.

After the registration of the transfer of this case was completed in accordance with the sales contract of this case with respect to the real estate of KRW 320,00,000 as of the date of the closing of argument of this case, the fact that the registration of the establishment of the first and second collateral collateral collateral collateral collateral loan was cancelled by the Defendant by repaying the total of KRW 271,653,098 to the secured debt within the scope of the maximum debt amount of each maximum debt amount of the first and second collateral collateral loan, as of the date of the closing of argument of this case, and the fact that the registration of the establishment of the establishment of the first and second collateral collateral collateral collateral collateral loan was cancelled as seen above. According to the evidence Nos. 1 and 10 evidence No. 10, the court below revoked the sales contract of this case against the Defendant and ordered the Defendant to pay the above amount of KRW 21,105,93, which is the credit amount of the loan of this case, and the court below ordered the Defendant to pay the above amount of KRW 26,016,00,00.

In light of the legal principles as seen earlier, the sales contract of this case was examined by the Plaintiff.

Within the scope of each taxation claim amount of this case, after deducting KRW 271,653,098, which is the aggregate amount of secured debt of Nos. 1,200,000, the market price of the real estate in this case as of the date of closing the argument of this case, and KRW 271,653,098, which is the aggregate amount of secured debt of No. 320,000,000 as of the date of closing the argument of this case, shall be revoked within the scope of KRW 28,346,90, which is the amount calculated by deducting the amount of 20,000,000, which has no benefit in protecting the rights by restoring the loan to its original state, from the day following the day of closing the argument of this case. The defendant shall be obliged to pay the plaintiff the amount of compensation for damages at the rate of 28,346,902, and the amount of compensation for delay calculated by 5% per annum under the Civil Act from the day of complete payment

4. Conclusion

The plaintiff's claim is justified and accepted.