Seoul Central District Court-2012-B-59496 ( March 21, 2013)

The date on which the obligee becomes aware of the cause of revocation in the exercise of obligee's right of revocation is insufficient simply by the fact that the obligor simply knows that he/she has disposed of the property.

The date when the obligor becomes aware of the cause of revocation in the exercise of the obligee’s right of revocation is insufficient solely by the fact that the obligor merely conducted a disposal of the property, and thereby, it is not possible to fully satisfy the claim due to the deficiency in the joint security of the claim or the lack of a single level, and further, to know the fact that the obligor had the intent to harm.

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

2013Da206542 Revocation of Fraudulent Act

Korea

KimA

Seoul Central District Court Decision 2012Na59496 Decided May 21, 2013

October 11, 2013

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. Basic facts

According to the reasoning of the judgment below and the record, the plaintiff held 00 won (hereinafter referred to as "the taxation claim of this case"). KimB sold the real estate of this case No. 1 on May 0, 2010 to the defendant, his father, in excess of his debt, and the real estate No. 2 on June 0, 2010, and KimB owned 00/100 shares (hereinafter referred to as "the shares of this case") out of theCC real estate of this case. CC real estate of this case was set prior to 00 won for creditors FF Bank, and maximum debt amount of 00 won (the maximum debt amount of 00.0 won). However, upon the plaintiff's application for deferment of collection of the taxation claim of this case, the Corporation reported that the public auction of this case was 00% of the total debt amount of 00 won (the maximum debt amount of 00.0% of the real estate of this case, which was 00% of the total debt amount of this case.

2. The judgment of the court below

The lower court determined that, in light of the fact that, around September 0, 2010, the Plaintiff was aware of the transfer of real estate ownership No. 1 and No. 2 to a third party at the time of the establishment of the instant collateral security right, the Plaintiff appears to have known that KimB had sold the instant real estate No. 1 and No. 2 around September 201, 201, and that there was a shortage of the joint collateral of the instant tax claim due to the act of KimB’s disposal of the instant collateral security right, and that from March 0, 2010, the amount of the instant lawsuit filed on November 0, 2011, the limitation period for revocation of the instant lawsuit was expired, and thus, the Plaintiff was unlawful.

3. Judgment of the Supreme Court

“The date when the obligee becomes aware of the cause of revocation in the exercise of obligee’s right of revocation” means the date when the obligee became aware of the fact that the obligor committed a fraudulent act with the knowledge that the obligee would prejudice the obligee. Thus, it is insufficient to simply deem that the obligor’s act of disposal of the property was an act detrimental to obligee, that is, the legal act was not sufficient to satisfy the obligee’s claim’s total satisfaction of claim due to the lack of joint collateral, or the lack of joint collateral, and further, it is difficult to view that the obligee had the intent to harm the obligor’s disposal of the property in excess of the value of the remaining property in light of the above legal principles as seen earlier, even if the obligee was aware of the fact that KimB had already disposed of the real property in excess of the value of the claim in question at the time of establishment of 00 million won, it is difficult to view that the Plaintiff’s disposal of the property in excess of the value of the remaining property in excess of the value of the claim in this case, and thus, it is difficult to view that the remaining property in excess of the value of the claim in this case was established.

Nevertheless, on the premise that the Plaintiff was aware of the fraudulent act by KimB at the time of the establishment of the instant mortgage, the lower court determined that the instant lawsuit was brought against the exclusion period. In so doing, the lower court erred by misapprehending the legal doctrine on the initial date of the exclusion period in a lawsuit seeking revocation of a fraudulent act, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.