It is reasonable to deem that the debt is repaid, and it does not constitute a fraudulent act.

In order to recognize the act of paying money as a fraudulent act, it shall be proved that the act constitutes a gift, or that it constitutes repayment, but it shall be proved that there are special circumstances as seen earlier, such as the intent to prejudice the creditor. Therefore, it is reasonable to deem that the payment in this case is a donation, and that the above loan is repaid to the defendant.

201Gaz. 21055 Revocation of Fraudulent Act

Korea

KimA

June 13, 2012

July 18, 2012

1. The plaintiff's claim is dismissed.

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

The contract of donation of KRW 000 between KimB and the defendant on October 2, 2008 is revoked, and the defendant shall pay to the plaintiff 00 won and the amount at the rate of 5% per annum from the day after the day when this decision is confirmed to the day of full payment.

1. Facts of recognition;

A. Tax claims against the plaintiff KimB

On December 28, 2006, the director of the Incheon District Tax Office, and KimB transferred the instant real estate (hereinafter referred to as the “instant real estate”), but did not report the transfer income to the competent tax office on October 29, 2008, the transfer income tax including additional tax was determined and notified as KRW 000, and as of July 12, 201, the delinquent amount is KRW 000.

B. The KimB received part of the transfer price of the instant real estate on September 26, 2008, and paid KRW 000 to the Defendant on October 2, 2008 (hereinafter “the instant payment”).

C. The financial status of KimB (as of October 2, 2008) was KRW 000 of active property, and KRW 000 of passive property, and was in excess of obligations at the time of the instant payment.

[Ground of Recognition] The non-contentious facts, Gap evidence Nos. 1 through 6, and Eul evidence No. 1 (each number No. 1), and the purport of the whole pleadings

2. Determination on this safety defense

(a)the master;

On December 15, 2009, the Defendant, and the Plaintiff received by facsimile the statement of deposit transaction by KimB, stating the contents of the instant payment on December 15, 2009, and came to know of the relationship between KimB and the Defendant through the customer information inquiry committee on the 30th of the same month, it should have known the fact that the instant payment to the Defendant of KimB constitutes a fraudulent act at the latest, and the instant lawsuit was filed on July 22, 201, which was subsequent to the expiration of the exclusion period of one year thereafter, and thus, asserted that it is unlawful.

B. Determination

The "date when the obligee becomes aware of the ground for revocation" in the exercise of the obligee's right of revocation means the date when the obligee became aware of the requirement for the obligee's right of revocation, that is, the date when the obligor becomes aware of the fact that the obligor had engaged in an act of prejudice upon knowing that the obligee would prejudice the obligee. Thus, it is not sufficient that the legal act was conducted merely by the obligor, that is, the obligor's act was prejudicial to the obligee, that is, the legal act was not sufficient to satisfy the obligee's joint security of the claim, that is, the obligor's failure to fully satisfy the claim due to the lack of the common security of the claim or the lack of the common security already in the situation, and that the obligor had the intent to cause harm (see, e.g., Supreme Court Decision 2007Da8088, Mar. 31, 2008).

3. Judgment on the merits

A. The parties' assertion

The plaintiff asserts that the payment of this case is a fraudulent act as a gift act. The defendant, the defendant, and the KimB, lent the total of KRW 000 on June 21, 2001, and KRW 000 on July 21, 2004, and was not paid the above loan, and the plaintiff was transferred from KimB on October 2, 2008 to the account in the name of the defendant and repaid the amount of KRW 100,000,000, which does not constitute a fraudulent act.

B. Determination

If a debtor has donated his own property to another person under excess of his obligation, such act would constitute a fraudulent act unless there are special circumstances. However, it is difficult to view that the debtor would result in a decrease in the joint security of other creditors by paying out debts to a specific creditor under excess of his obligation, and that repayment would not, in principle, constitute a fraudulent act unless the debtor, in collusion with some creditors and with the intent of undermining other creditors, by doing so (see Supreme Court Decision 2005Da62167, Jun. 15, 2006). Furthermore, it is difficult to view that the creditor who seeks cancellation of the fraudulent act as a gift of the debtor's payment of the amount to the beneficiary of the existing obligation, the beneficiary would not be deemed to have received the payment of the amount from 00B to 200B, and the defendant would not be deemed to have made payment of the amount under the premise that it would constitute a fraudulent act, and the defendant would not be deemed to have made payment under the premise that it would harm the creditor, and that it would be 2000B.25.

4. Conclusion

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