It is difficult to constitute a fraudulent act that constitutes a preserved claim, but whose active property exceeds the negative property, and that constitutes a fraudulent act that harms the general creditor's property.

It is difficult to constitute a fraudulent act that constitutes a preserved claim, but whose active property exceeds the negative property, and that constitutes a fraudulent act that harms the general creditor's property.

2014 Ghana 207478 Revocation of Fraudulent Act

Korea

United StatesA

September 18, 2014

October 16, 2014

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

A part of the Cash Donation Contract dated June 2, 201 between this B and the Defendant (OOOO) and the Cash Donation Contract (OOOO) dated June 13, 201 shall be revoked. The Defendant shall pay to the Plaintiff the amount calculated at the rate of 5% per annum from the day following the date the judgment of this case became final to the day of complete payment.

1. Grounds for the instant claim

ThisCC obtained the difference in transfer by disposing of the real estate owned by it as the sole property, and thus, received the difference in transfer income tax from the Plaintiff, but it did not pay the same to the Plaintiff, among the proceeds from the disposal of the real estate in question, the amount of the said real estate, which was donated to the Defendant (OOOOOO on June 2, 201, and OOOOO on June 13, 201), thereby falling short of liability. Ultimately, thisCC’s donation of the said money OOOOOO to the Defendant constitutes a fraudulent act that reduces liability property against the general creditors, including the Plaintiff, and is presumed to constitute a malicious act by the Defendant. Accordingly, some of the above donation contracts should be revoked, and the Defendant, the beneficiary, in lieu of restitution, should pay the Plaintiff the compensation for delay.

2. Determination

(a) Facts of recognition;

1) On April 14, 201, thisCC entered into a contract with Park Jong-dong, Gangdong-gu, Seoul, to transfer No. 121 AAAB apartment 00,000,000 OCO (formers established on the above real estate are acquired by Park Jong-dong, and the contract is concluded on April 14, 201, the contract date, and the intermediate OOOOs of the intermediate payment shall be paid on May 20, 201, and the remainder of OOs shall be paid on May 31, 201) and received the sales amount from Park Jong-dong on each of the above dates.

2) As of May 31, 201, thisCC transferred the said real estate to GD, it was liable to pay the Plaintiff capital gains tax to the Plaintiff, as of May 31, 201. On August 2, 2012, the Plaintiff notified thisCC of the payment of capital gains tax OOO(including local income tax).

3) On June 2, 201, 201, thisCC remitted each of the instant primary remittances to the Defendant’s own mother’s account (hereinafter referred to as “OOOOO”) and OOOOO(hereinafter referred to as “the instant secondary remittance”) on June 13, 2011. The Defendant repaid the said money transferred from thisCC to the national bank that it had paid to the national bank (hereinafter referred to as “OOO”).

4) After the instant first remittance, the OOO was left in the bank account in the name of thisCC, and 38,057,50 won was left after the second remittance. Meanwhile, thisCC leased OOOOOO to UE on June 6, 201, but on the same day, it was repaid on August 11, 201, and the deposit balance of thisCC was OOO.

5) On January 16, 2012, thisCC entered into a sales contract with △△△△○ Office located in the fire-dong Seoul, Gangseo-gu, Seoul. In relation to the said contract, thisCC transferred the sales price to the account of its employees on January 13, 2012. On January 16, 2012, 2012, it remitted the sales price to the said account under the name of the said company as the first intermediate payment, and the Defendant remitted the KRW OOOO to the said account under the name of the said company on January 16, 2012 in subrogation of thisCC, and paid the KRW OOO in the said company on February 29, 2012.

6) However, the above company failed to properly implement the above sales contract with thisCC, and thisCC filed a complaint against its officer consciousness, representative director, KimF, etc. on the charge of fraud, and the above GG was prosecuted for the above case and was subject to criminal punishment.

[Ground of recognition] Facts without dispute, Gap evidence 2 through 7, Eul evidence 7 through 13, Eul evidence 19 and the purport of whole pleadings

B. Determination

(i) the existence of the preserved claim

According to the above facts, thisCC was responsible for the payment of capital gains tax to the plaintiff by disposing of 00-dong △△△ apartment 00-dong, Gangdong-gu, Seoul. However, the transfer income tax claim (OOO) claims against thisCC owned by the plaintiff constitutes preserved bonds necessary for seeking revocation of fraudulent act.

(ii) a legal act of thisCC with the property right

이CC의 피고에 대한 현금 송금 행위 즉 이 사건 1, 2차 송금 행위의 성격에 관하여 보건대, 위 이CC이 피고에게 위 돈을 송금하면서 피고와 사이에 차용증을 작성하지 않았고, 위 돈을 송금한 뒤에도 피고로부터 이자를 수령하지 않았던 점(이CC이 박HH에게 지급한 돈 OOOO원에 대하여 원고가 증여세를 부과하고, 이에 대하여 박HH가 특별히 다투지 않았던 점)에 비추어 위 각 송금 행위는 민법상 증여에 해당할 여지가 없지 않다. 그러나 이CC과 피고는 모녀지간으로 부동산을 처분함으로써 어느 정도 여윳돈을 가지게 된 위 이CC으로서는 자신의 모(母)인 피고에게 피고의 금융기관에 대한 채무를 갚는 용도로 쓰도록 일시적으로 자금을 융통해 줄 수 있을 터인데 이와 같은 자금 융통은 일반인의 경험칙에 반한다고 하기 어려운데다, 부모 자식 사이에서는 차용증을 작성하지 않은 채로 금전을 대차하는 경우가 허다한 점, 피고는 이CC으로부터 위 돈을 융통하여 사용한 뒤 이CC을 대위하여 이CC의 오피스텔 매매대금 중 일부를 납부한 점, 과세처분을 다투지 않았다고 하여 반드시 처분이 정당함을 수긍하였다고 할 수는 없는 점,이CC은 이 사건 각 송금 행위는 물론이고 유GG에 대한 금전대여 및 상환 행위 또한 예금 계좌를 이용하여 거래해 온 점 등 제반사정에 비추어 보면, 앞서 인정한 사실들만으로 이CC의 피고에 대한 위 송금 행위를 증여로 단정하기는 어렵다 할 것이다. 따라서 이CC과 피고 사이의 금전 거래를 금전소비대차로 보되, 금전소비대차라 하더라도 재산권을 목적으로 한 법률행위에 해당하여 사해행위가 될 수는 있으므로 이하에서는 이CC의 무자력 여부에 관하여 보기로 한다.

3) Whether thisCC is insolvent

In light of the following facts: (a) whether thisCC’s property relationship (affirmative) has deteriorated (negative) to the extent that it is impossible for the Plaintiff to pay capital gains tax (negative); (b) the deposit balance of thisCC after the instant 1 and 2 remittance (total amount of OOO); and (c) if only formally, the above amount is more than the amount of the Plaintiff’s preserved claim against thisCC. However, in light of the following: (a) the Defendant paid part of the officetel sales price of thisCC on behalf of thisCC (OOO) and (b) UG borrowed money from thisCC on behalf of thisCC (OOO) in consideration of the fact that each of the above remittance acts constitutes a fraudulent act; (c) each of the above remittance acts is clearly possible; and (d) whether each of the above remittance acts constitutes a fraudulent act, it should be included in the active property of thisCC. Accordingly, if it is calculated after completion of each of the instant remittance acts based on this case, OO property is more active than O property of thisCC.

4) Conclusion

In light of the above, it is difficult to say that the act of remitting each of the instant remittances against the Defendant by thisCC constitutes a fraudulent act detrimental to the general creditor’s property liability, and there is no other evidence to acknowledge it. Thus, the Plaintiff’s claim against the Defendant on the premise that each of the aforementioned remittances constitutes a fraudulent act is without merit without examining the remainder of the requirements necessary for the revocation of the fraudulent act.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.