real estate donation contract constitutes a fraudulent act

If a delinquent taxpayer concludes a real estate donation contract in excess of his/her liability and completes the registration of ownership transfer, it constitutes a fraudulent act by making joint security more deficient, and the defendant who was aware of the above circumstances is presumed to be malicious.

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

2017 Ghana 52950 Revocation of Fraudulent Act

Korea

AA

With respect to 1/2 shares), KRW 000 of the maximum debt amount set on April 1, 2003, and BB of the debtor;

The registration of creation of a neighboring mortgage under the name of the OO bank Co., Ltd. (hereinafter referred to as the "OO bank");

There was KRW 000,000 as security debt, but the registration of the establishment of a neighboring mortgage in the name of the above national bank was the instant case.

On April 7, 2015, which is after donation contract, the secured debt of KRW 0 million is repaid and terminated on April 8, 2015.

The cancellation was made.

2) The share of the first real estate in this case was from the donation contract of this case to the present date.

There is no registration established by provisional seizure, and the market price of each share of the second real estate in this case is the market price.

As of May 2017, it is equivalent to KRW 000.

【Evidence: Evidence Nos. 1 to 13, No. 1 and 2 (including paper numbers; hereinafter the same shall apply)

Each partial entry, part of witness BB's testimony and the purport of the whole pleadings

2. Determination

A. Formation of preserved claims

1) In principle, a claim protected by the obligee’s right of revocation may be deemed as a fraudulent act.

(b) the claim has already been made at the time of the fraudulent act, even if the claim has already been

There is a legal relationship which forms the basis of establishment and is based on the nearest legal relationship.

There is a high probability of the establishment of a claim and its opening in the nearest future.

in the event that a claim has been realized and has been created, the claim shall also be subject to the creditor's right of revocation.

may be eligible (see Supreme Court Decision 2010Da68084, Jan. 13, 2011).

2) According to the above facts, the legal relations that form the basis of the disposition imposing the transfer income tax of this case

on January 13, 2015, and BB on January 26, 2015, prior to the instant donation contract.

In the near future, bonds will be created based on the above legal relations, such as tax declaration.

In fact, there was a high probability of this issue, and 2 months from the date of the gift contract of this case.

The deadline for payment on May 19, 2015, which was not the date of payment, was June 15, 2015, and actually the small income tax of the instant case.

Tax claims against BB by an excessive disposition of the Plaintiff (hereinafter referred to as “instant taxation claims”).

As such, although the gift contract of this case was made prior to the occurrence of the claim of this case, the contract of this case was made.

C. The Plaintiff’s claim of this case can be the preserved claim of fraudulent act.

B. Establishment of fraudulent act

1) Speculative act means the act causing a decrease in the debtor's responsible property, that is, the debtor's act of disposing of the debtor's property, which causes a decrease in the joint security of the claim or the joint security already insufficient, which led to the debtor's claims of the general creditors.

action means making complete satisfaction.

2) According to the above facts of recognition, BB is owned by it under the status of excess of its liabilities.

The share of the real estate and each share of the 2nd real estate in this case shall be

In the absence of special circumstances, it is not possible to conclude a contract and complete the registration of transfer of ownership.

full amount of the Plaintiff’s claim, which is a general creditor, due to a lack of common security

It constitutes a fraudulent act by making it impossible to satisfy.

(c) Existence of the intention of piracy;

1) In fraudulent act, the intent to commit an act of disposal of the debtor's property, which is a subjective requirement

any deficiency in the joint security of claims due to the decrease of such assets or

the creditor's claims cannot be fully satisfied due to the lack of such security more than one story;

the debtor's act of disposal of property to a third party is objective.

in the case of a fraudulent act, the beneficiary is presumed to have acted in bad faith, so that the beneficiary is

As to the good faith at that time, the beneficiary is liable to prove himself/herself (Supreme Court Decision 2013.

4. 11.see, e.g., Supreme Court Decision 2012Da107198, supra)

2) The Corporation, BB shall transfer to the defendant the shares of the first real estate in this case, which are valuable as a joint security for the general creditors in excess of obligations, and each shares of the second real estate to the defendant.

(2) At the time of the gift contract of this case, the agreement of this case provides for the general creditors including the plaintiff

Inasmuch as it appears to have been sufficiently aware of the fact that the BB had the intent of deception;

The defendant's bad faith is presumed to be beneficiary as long as the BB's intention of damage is recognized.

D. As to the defendant's bona fide defense

1) The Defendant asserts as follows. In other words, at the time of the donation contract of this case, the transfer income tax of this case

Before the notice was given, the Defendant did not know at all that the said gift contract constitutes a fraudulent act.

The gift contract of this case was in excess of KRW 0 million that the defendant did not borrow to BB.

The Defendant paid 100 million won to CCC, a registration officer, to BB’s share, and No. 2 of this case

The defendant shall repay with the secured debt in the name of a national bank with each share of real property.

The defendant was actually engaged in the sale and purchase transaction since he paid one million won as the price.

The gift contract of this case was bona fide at the time of the contract of this case.

2) However, the following circumstances are revealed by the above facts of recognition and the evidence of recognition:

In other words, the defendant is liable to impose capital gains tax between BB and B.

The act of trading and the act of reporting the transfer income tax of this case was carried out together.

At the time of the donation contract of this case, the Defendant is obliged to levy the transfer income tax of this case to BB.

of the real property in the name of BB, whether it is a joint security for the general creditors among the property in the name of BB

The fact that there was only the shares of the first real estate and the second real estate, and therefore, there was only the shares of the second real estate.

BB and the Defendant lack joint security for creditors due to the instant gift agreement.

It appears that the defendant could have sufficiently known that it is, as the defendant's assertion, the redness of the defendant.

In spite of the purchase of shares of each of the above real property, BB and the defendant

The gift contract concerning the shares of the first real estate and each shares of the second real estate shall be prepared.

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The defendant's assertion that only some of the statements and evidence Nos. 1 and 2, and part of witness BB's testimony

It is insufficient to recognize the truth, and there is no other evidence to prove that the defendant is bona fide, and the above defendant is not bona fide.

The above assertion cannot be accepted.

(e) Revocation of and reinstatement from fraudulent acts;

1) As to the share of the first real estate

Since the instant gift contract between the Defendant and BB is a fraudulent act, it must be revoked;

As a result, the defendant shall recover to BB the shares of the first real estate in this case.

There is a duty to implement the procedure for registration of cancellation of right transfer.

2) As to each share of the instant 2 real estate

(A) In principle, where a legal act on a certain real property constitutes a fraudulent act

The revocation of fraudulent act and the cancellation of transfer registration of ownership, and the restoration of real estate itself shall be ordered.

in the case of transfer of real property subject to a mortgage to a fraudulent act, a fraudulent act is committed.

be established only within the extent of the balance remaining after deducting the secured claim amount of the mortgage from the value of the

Since registration of creation of mortgage is cancelled due to repayment after fraudulent act, etc., real estate shall be registered.

Revocation and value of the fraudulent act within the extent of the balance obtained by deducting the secured debt amount of the mortgage;

It is only possible to seek compensation (see, e.g., Supreme Court Decision 2002Da41589, Nov. 8, 2002).

In addition, the registration of establishment of a neighboring mortgage is cancelled later than the registration of ownership transfer due to fraudulent act.

In addition, registration of cancellation of the establishment registration of a neighboring mortgage and registration of transfer of ownership are received on the same date.

The same applies to cases where the cause date is treated and the same (see, e.g., Supreme Court Decision 2013Da72169, Jan. 23, 2014). Meanwhile, barring any special circumstance, the value at this time ought to be calculated as at the time of the closure of the arguments in the relevant lawsuit seeking revocation of fraudulent act as a matter of course (see, e.g., Supreme Court Decisions 2007Da28819, Feb. 25, 2010; 2000Da66416, Sept. 4, 2001).

(B) Examining the facts acknowledged as above in light of the above legal principles, the ground for the instant gift contract

(1) Each share of the 2 real estate in this case was transferred to the Defendant, and thereafter, was established in the 2nd real estate.

in the name of the national bank, the second real estate of this case was cancelled, so that the second real estate of this case was each

Restoration of a portion shall be based on the method of compensation for value.

(C) The Plaintiff’s amount of preserved claim 000 is recognized as above. Meanwhile, as of December 14, 2017, the date of the closing of argument in the instant case, the value of each share of the instant 2 real estate as of December 14, 2017.

A. The value is estimated as KRW 1000 (the value as of May 2017 exceeds KRW 000). Since the gift contract of this case, each share of the instant 2 real estate after the gift contract of this case is concluded to be due and reasonable.

the amount of the secured debt in the name of the national bank that has been repaid is 000

Since the office has been recognized as above, as of the date of closing argument of this case on the real estate of this case.

The scope of revocation of a fraudulent act is KRW 000,000, when calculating the value of the same collateral. Meanwhile, since the scope of revocation of a fraudulent act is limited to the amount of the claim of the revocation creditor, the amount of compensation is limited to the amount of the claim of the revocation creditor if restitution is made by the method of compensation for value, and the amount of revocation of a fraudulent act and compensation for value should be limited to the smaller amount between the amount of the creditor's preserved claim and the amount of the joint collateral value of the real estate subject to the fraudulent act

It is 000 won which is the value.

(D) Sub-determination

Therefore, the gift contract of this case for each share of 2 real estate in this case is a fraudulent act.

shall be revoked within the limit of 000 won, and the defendant who is a beneficiary shall be revoked.

The plaintiff shall recover to its original state of 000 won from the day after the date when the judgment of this case is finalized.

(c) Liability to pay damages for delay calculated at the rate of 5% per annum under the Civil Act until the date of full payment.

section 1.

3. Conclusion

If so, the plaintiff's claim can be accepted within the above scope of recognition, it is partially accepted, but the proviso of Article 101 of the Civil Procedure Act shall apply to the bearing of litigation costs.

It is so decided as per sentence.

December 14, 2017

January 11, 2018

1. A. A. A. The contract of donation concluded on March 27, 2015 with respect to 1/2 shares of the real estate listed in the separate sheet No. 1 between the Defendant and BB shall be revoked. BB, the Defendant will implement the procedures for the cancellation of ownership transfer registration completed on March 30, 2015 by the OO district court’s OO registry office as to 1/2 shares of the real estate listed in the separate sheet No. 1. 14764.

2. A. As to each of the real estates listed in the separate sheet 2 attached hereto between the Defendant and BB

The gift agreement concluded on March 27, 2015 shall be revoked within the limit of the relevant member.

B. The Defendant shall pay to the Plaintiff 5% interest per annum to the Plaintiff at the rate of 5% from the day following the day when the judgment of this case became final to the day of complete payment.

3. The plaintiff's remaining claims are dismissed.

4. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The judgment as referred to in Paragraph (1) and Paragraph (2) of this Article and the agreement on donation between the defendant and BB on March 27, 2015 regarding each of the 1/2 shares of each of the above real estate listed in the separate sheet 2 shall be revoked within the limit of the party at issue, and the defendant shall pay to the plaintiff the amount calculated at the rate of 5% per annum from the day following the day when the judgment of this case became final to the day when the decision of this case is complete (the plaintiff shall be limited to the real estate listed in the separate sheet 1 and the real estate listed in the separate sheet 2 as to the real estate for which the revocation of fraudulent act is sought. However, according to the records, since it is obvious that the above real estate is a clerical error in

1. Facts of recognition;

(a) Formation of a taxation claim against BB;

1) On January 13, 2015, the Defendant and the Defendant’s type BBB and CCC, who is the Defendant, sold several parcels of land outside of OO-Eup O-type OOOO on January 13, 2015. The Defendant and BB and CCC reported the transfer income tax base, etc. on January 26, 2015.

2) On May 19, 2015, the Plaintiff issued a disposition imposing capital gains tax of KRW 000 (hereinafter “instant disposition imposing capital gains tax”) that was established as a trading act conducted on June 15, 2015 to BB on May 19, 2015 (hereinafter “instant disposition imposing capital gains tax”). However, BB did not pay the said capital gains tax by the filing date of the instant lawsuit, and the amount in arrears, including the additional dues, became 00 won.

(b) the BB’s disposal of real property;

1) On March 27, 2015, BB entered into a donation contract on 1/2 shares among the real estate listed in the separate sheet No. 1 (hereinafter referred to as "shares No. 1 of this case") and 1/2 shares among each real estate listed in the separate sheet No. 2 of the real estate listed in the separate sheet No. 2 of this case (hereinafter referred to as "each shares of the 2 real estate of this case"), and on March 30, 2015, BB entered into an agreement on the gift of each of the two shares (hereinafter referred to as "each shares of the 2 real estate of this case"), and on March 30, 2015, PO District Court receipt of OOO registry (hereinafter referred to as "the registration of ownership transfer as to shares No. 1 of this case") with the Defendant, who is the same resident, and completed the registration of ownership transfer as to each share of the 2 real estate of this case.

1) At the time of the donation contract of this case, there were co-ownership shares of 1/3 of each of the 2nd real estate shares and 000 won in aggregate with the 1st real estate shares of this case, and of 000 won in aggregate with the 2nd real estate shares of this case, OOO OO OO OOOOOOOOOOM and other four parcels of land, but there were transfer income tax of this case as small property, while there was transfer income tax of this case as small property, and there was 00 won in aggregate as the secured debt of the 2nd real estate (BB1/2 shares and 2nd shares) of this case.