money donated in excess of debt constitutes a fraudulent act.

The sole sale of real property with excess liabilities and donation of such money constitutes a fraudulent act detrimental to the general creditors including the Plaintiff.

Article 35 of the Framework Act on National Taxes

Busan District Court 2017Gadan329531 Revocation of Fraudulent Act

Korea

000 Foreign Affairs

May 17, 2018

January 31, 2019

1. A. A. Revocation of a gift agreement of KRW 80,000,000 entered into on August 22, 2016 between Defendant Aa and BB.

B. Defendant A shall pay to the Plaintiff 80,000,000 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

2. (a) Revocation of the gift agreement of KRW 120,000,000 entered into on August 22, 2016 between Defendant C and BC.

B. Defendant CC pays to the Plaintiff 120,000,000 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

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

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. BB is liable to pay national taxes of KRW 686,743,980 in total as of July 3, 2017, as indicated in attached Table 1 (hereinafter “instant national tax claim”).

B. BB completed the registration of ownership transfer for reasons of sale on July 15, 2016, with respect to the Busan Gangseo-gu Busan Metropolitan City Branch Office, the ownership transfer of which was completed in the future, with respect to the real estate of 00 square meters in Busan Gangseo-gu Branch, Busan Metropolitan City (hereinafter referred to as “Dong branch office”), for which the registration of ownership transfer was completed.

C. BB divided the real estate of a branch office into two lots (san 63, mountain 63-2), and sold the real estate in the amount of KRW 800 million to theff on August 1, 2016, and completed the registration of ownership transfer in theff on the same day. BB at the time received from theff a check (hereinafter referred to as “the check in this case”) the amount of KRW 300 million excluding KRW 500,000,000,000,000 won, excluding KRW 500,000,000 won, out of KRW 80,000,000.

D. Meanwhile, on August 22, 2016, the Defendants purchased from dd and e couple on August 2, 2016 the shares of KRW 2632/6580 in the price of KRW 80,000,000 and KRW 12,00,000 in the price of KRW 3948/6580 in the buildings (hereinafter “the instant real property”) and completed the registration of ownership transfer for each of the said shares on September 2, 2016.

E. Defendant Aa is the bb’s wife, and Defendant CC is the bb’s wife. As seen earlier, as seen earlier, the instant check, which was paid for the purchase price from theff, was paid to DD in the purchase price of the instant real estate. Ddd on August 22, 2016, received the check money by presenting the instant check payment to the Busan National Agricultural Cooperative, Inc., the Republic of Korea.

F. BB does not have any property other than the above sales amount.

[Grounds for recognition] The written evidence No. 1-9 and the purport of the whole pleadings

2. Assertion and determination

A. Establishment of fraudulent act

According to the above facts of recognition, bB paid 80 million won as the instant check in lieu of Defendant Aa’s purchase price of KRW 80 million, Defendant CC’s purchase price of KRW 120 million constitutes a monetary donation to the Defendants, and bB’s donation of the said money in excess of debt constitutes a fraudulent act as it harms general creditors, including the Plaintiff. Moreover, bB’s intent of death, which is the debtor, is recognized, and the Defendants’ bad faith is presumed to be the beneficiary.

B. Determination of the defendants' assertion

1) As to the non-existence of preserved claim

A) The Defendants asserted that there is no preserved claim, since the instant tax disposition against Bb is null and void as a matter of course.

B) However, as Busan District Court Decision 2006Guhap3828, BB filed a lawsuit against the director of the Busan District Tax Office seeking confirmation of invalidity of each of the instant taxation claims. On June 7, 2007, the judgment dismissing the Plaintiff’s claim was rendered on the ground that the said disposition was not void as a matter of course, and on June 29, 2007, the fact that the judgment became final and conclusive is significant in this court.

According to the above facts of recognition, the effect of the value-added tax portion among the taxation claims of this case becomes no longer effective, and there is no reason to deem the remaining taxation claims (global income tax) as invalid as a matter of course. Thus, the above assertion by the Defendants cannot be accepted.

2) As to the claim for the completion of extinctive prescription

A) The Defendants asserted that the instant taxation claim does not exist any longer after the five-year extinctive prescription expires.

B) Comprehensively taking account of the purport of the entire arguments in each statement of evidence Nos. 9 and 10, the Plaintiff notified bB to pay each of the instant tax claims until December 31, 2005, but did not pay the value-added tax. However, the Plaintiff seized 00 automobiles owned bbbbb on January 25, 2006 with the aforementioned value-added tax as preserved bonds (00.000) with the aforementioned value-added tax portion as preserved bonds, and the registration of the seizure remains until the date.

According to the above facts, at least the value-added tax portion among the instant taxation claims has been suspended by seizure. Accordingly, the aforementioned assertion by the Defendants cannot be accepted on different premise (the value-added tax portion alone exceeds the Plaintiff’s claim amount).

3) As to the assertion that the fraudulent act was not a donation but a repayment of the borrowed amount

A) Defendants’ assertion

The check of this case is not a donation made by BB to the Defendants, but a total of KRW 219,50,000,000 from the Defendants was discharged by BB as follows. Thus, it does not constitute a fraudulent act.

In other words, BB borrowed money from Agg (the husband of Defendant CC) and Defendant Aa, the wife, as follows: (a) borrowed money from the actual owner of the Dong-dong Housing; and (b) paid the instant check into the repayment of the borrowed money to the owner of the actual owner of the Dong-dong Housing.

① BB borrowed from Ggg to Defendant A’s Busan Bank account in the sum of KRW 5 million on May 4, 2001, KRW 43 million on April 22, 2004, KRW 5 million on April 20, 2005, KRW 18,000,000 on March 18, 2006, KRW 78 million on October 16, 2007, and KRW 15 million on October 16, 2007.

② B from Defendant Aa to September 9, 200, 200,000 won, on February 25, 2010, KRW 18.5 million on March 25, 2010, KRW 200,000,000 on June 20, 2011, KRW 10,000,000 on February 10, 201, KRW 18,000,000,000 on each day, and then lent from Defendant Aa to hhh on each day, and thereafter, lent KRW 50,00,000 from Defendant Aa to hh on each day, and thereafter, loaned to hhh on February 26, 209.

B) Determination

According to the evidence Nos. 1, 2, 12-1 to 5, 16, and 17 of evidence Nos. 1, 2, 2, and 17, each of the following facts: (a) money has been transferred several times from the account of BB ggg (the husband of Defendant CC) (the husband of Defendant CC) to BB or Defendant Aa; (b) Gg has been in office as the responsible researcher of the GG 00 Center from June 19, 1989 to that of the 19th day, it is recognized that the fact alone is insufficient to recognize that BB borrowed money from Ggggg or that there is a debt at the time of the donation of this case, and there is no other evidence to recognize this otherwise.

In addition, according to the statements in Eul 13-15 (including all of the serial numbers), money was collected from the account of defendant Aa as shown in attached Table 2-1 as shown in attached Table 2-2, and it is not sufficient to recognize that bB borrowed money from defendant Aa, the wife, and there is no other evidence to acknowledge that bB borrowed money from the account of defendant A, the wife, even though it is recognized that bB transferred money to kk, etc. as listed in attached Table 2-2 as listed in attached Table 2-2 of the same day.

In addition, bB sold the real estate ownership of the branch office only and converted into money, and then used the check of this case with the purchase price of the real estate purchased by the Defendants at that time. It becomes a fraudulent act, barring special circumstances, that the debtor sells and consumes the real estate only in excess of his/her obligation, and converted the sale price into money, which is the only property in excess of his/her obligation, and that part of the purchase price is converted into money, for the Defendants, even though the act of bbbb is separate act, each act is very close to time, and the relation between bbb and the Defendants, etc., the above act of bbbb is deemed to be a fraudulent act detrimental to other general creditors. Accordingly, the aforementioned assertion by the Defendants cannot be accepted.

(c) Revocation of fraudulent act and reinstatement;

Each monetary donation contract concluded on August 22, 2016 between the Defendants and BB shall be revoked as a fraudulent act. The Defendants are obligated to pay the amount of each donation and its restitution to its original state at the rate of 5% per annum as stipulated in the Civil Act from the day following the day this judgment becomes final and conclusive to the day of full payment.

3. Conclusion

The plaintiff's claim against the defendants shall be accepted in entirety on the grounds of the reasons.