Suwon District Court 2007Na18802 (Law No. 29, 2008)

Whether the land in the name of a corporation does not constitute a fraudulent act with the property in title trust;

Although claiming that land is nominal in the name of a corporation and a new construction and lease of a building on the land, it is reasonable to deem that the land is invested in kind and is engaged in the new construction and lease business as an operator of the corporation, the act of donation of the sole property of the

The contents of the decision shall be the same as attached.

Article 30 of the National Tax Collection Act / [Fraud]

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

Although examining all of the records of this case and the judgment of the court below and the grounds of appeal, it is clear that the appellant’s grounds of appeal fall under Article 4 of the Act on Special Cases Concerning the Procedure of Appeal, and thus, the appeal is dismissed pursuant to Article 5 of the same Act. It is so decided as per Disposition by

[Insuwon District Court Decision 2007Na18802 (Law No. 29, 2008)]

1. The defendants' appeal is dismissed.

2. The costs of appeal are assessed against the Defendants.

Of 1/2 shares of each of the instant land ○○○○○○○○○○○ ○○○○○○○○○ 64.1 square meters (hereinafter “instant land”) in Sungnam-si, the Defendants and ○○ integrated Construction Co., Ltd. revoked a donation agreement concluded on July 26, 2004. The Defendants will implement the procedure for registration of cancellation of ownership transfer registration completed on July 30, 2004 with respect to each of the instant shares of each of the instant land to ○○ integrated Construction Co., Ltd. as to each of the instant shares to ○○ integrated Construction Co., Ltd.

Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The following facts do not conflict between the parties, or can be acknowledged by comprehensively taking into account the following reasons: Gap 1-3, 6, 8, 10, 12 evidence, Eul 1-10, and 12-28 evidence, Eul 11 evidence, witness ○○ testimony, witness ○○, witness ○○, letter ○○, and Kim Jong-soo’s overall arguments.

(a) Establishment, etc. of ○○ Comprehensive Construction;

(1) During the construction company operation in around 1996, Lee Jin-jin, the father of the Defendants, was practically bankrupted in around 1996, and was unable to repay the loan obligations borrowed on the inn site and building as security while operating the inn site and building ○○○○○○○○○○○○○, the wife Kim Jong-dong, Sung-gu, Sung-nam, the wife of the Defendants, was in progress on October 200.

(2) On the other hand, in the course of operating the design office called ○○○ Construction, the ○○○○○○○○○, proposed the establishment of a construction company to ○○○○ on April 2001. At the time, ○○○○○○ was planned to receive a contract for the construction of Dora in Jeju ○○○○○○-gun, but was incorporated by a construction company under a relationship in which it was impossible to establish a company under its own name or conclude a contract for construction, and consented to the construction business in its name. Accordingly, ○○ and ○○○○ established the ○○○ Construction Company on August 23, 2001 (hereinafter the above company) (hereinafter the above company).

(3) At the time, ○○○ had no capital of KRW 300 million in order to obtain a comprehensive construction business license. Based on this, ○○ Construction was established by paying capital of KRW 32 million in a deposit account of ○○ Construction. Based on this, on August 23, 2001, the establishment of ○○ Construction was immediately withdrawn after the completion of the establishment registration.

In the process, Lee Jin paid 3 million won, and 10 million won, Seo Jin paid the amount of KRW 3 million for the consultation fee for the establishment of a company. [In accordance with the statement of stock change reported to the tax office by ○ Construction, 5% out of the issued shares of ○○ Construction is deemed to have been held by ○ Jin. Meanwhile, in the form of ○○ Construction, the representative director was Kim Jin at the time of its establishment, but the actual operator was the ○○ and Lee Jin]

B. Purchase of the instant land and ownership transfer registration

(1) After the establishment of ○○ Construction, ○○○○ and Seoi agreed to purchase the instant land indicated in the purport of the claim in the name of ○○ Construction, which was owned by ○○○ Housing, and to dispose of it on the ground and distribute the proceeds therefrom.

(2) Accordingly, on September 18, 2001, Lee Jin entered into the instant sales contract on behalf of ○○ on behalf of ○○ Construction and on behalf of ○○○ (the last person, a real estate broker acting for ○○○) to purchase the instant land in KRW 73 million, and completed the registration of ownership transfer on the instant land on November 6, 2001.

(3) Of the instant purchase price, KRW 33 million was procured and paid to ○○○○○○, and KRW 40 million was remitted to ○○○ Construction’s deposit account with loans, etc., and the said amount was withdrawn by ○○○○ and paid to ○○○○○○.

C. New construction, etc. of the instant housing

(1) On November 20, 2001, Lee Jin-jin, a representative for ○○ Construction, completed the construction of a 40 million unit on the instant land (hereinafter “the instant house”) after completing the registration of creation of a mortgage on the instant land with the maximum debt amount of 39 million won in the future of the bank, and borrowing 30 million won from the bank, borrowing 40 million won from the largest ○○○, and obtaining a building permit under the name of ○○ Construction, and completing the construction on April 2002. [This ○ Jin, etc. tried to newly construct the instant house and dispose of it together with the instant land, but failed to dispose of it with the instant land, which was contrary to the construction-related Acts and subordinate statutes, and did not have been approved until now];

(2) On January 31, 2002, when the construction of ○○ Construction was in progress, from January 31, 2002 to March 7, 2002, Lee Jin leased the instant housing of KRW 1-4,00,000,000 in total amount of the lease deposit, and thereafter moved into the instant housing of KRW 145,500,000,000,000,000 for the rental loan, the maximum amount of loan to ○○, and the investment principal of ○○○ Construction, which was in place of ○○ Construction, after the completion of the construction, paid all or part of the remainder, and was cancelled on April 12, 2002. [The ○○ Construction, who was represented by ○○ Construction, has leased the instant housing to a third party, and thereafter leased the instant housing to ○○ Construction or the third party (after the construction of the instant housing) or thereafter, the Defendants were living in the name of the said land as follows.]

D. The plaintiff's bonds and the disposition of this case

(1) On September 27, 2002, ○○ Construction was appointed as the representative director of ○○ Construction (the first day’s appointment as a director), but the shares of ○○ Construction was transferred to ○○○○○ on May 18, 2004, and was appointed as the representative director of ○○ Construction on May 18, 2004. Accordingly, as of December 31, 2004, 30% of the shares of ○○ Construction was ○○ Construction as of December 31, 2004, 30% of the shares of ○○ Construction, 30% of the shares, 30% of the shares, 30% of the interest, 5% of the interest, and 5% of the ○○ Construction, respectively.

(2) On May 14, 2004, around the time of the transfer of the above shares, ○○ Construction issued ○○ Construction’s certificate to dispose of the land of this case to a third party, but it was impossible to dispose of it due to the reason of approval for use, etc., on behalf of the Defendants, on July 30, 2004, ○○ Construction completed the registration for transfer of ownership based on 26 and gift on behalf of the Defendants as to the land of this case. At the time, ○○ Construction completed the registration for transfer of ownership on July 30, 2004. (hereinafter the above donation contract of this case and the registration for transfer of ownership in the name of the Defendants is registered for transfer of ownership in this case).

(3) Meanwhile, as of the time of filing the instant lawsuit with respect to ○○ Construction, the Plaintiff has the instant tax claim of KRW 216,377,460, including additional dues and aggravated additional dues, as shown in the attached list as at the time of the filing of the instant lawsuit. The time of the completion of the instant tax claim or the time of the establishment of the tax liability is from January 31, 2004 to December 31, 2004, and the time of the confirmation of the tax liability is from May 16, 2005 to February 28, 2006.

2. The parties' assertion and judgment

A. The parties' assertion

◦ 원고 : 이 사건 증여계약은 사해행위에 해당하므로 이 사건 소로써 그 취소와 이 사건 이전등기의 말소를 구한다.

◦ 피고들 : 이○진은 자신의 돈과 서○석으로부터 빌린 돈으로 이 사건 토지를 매수한 후 ○○건설에게 그 소유명의를 신탁하여 두었다가 신탁계약을 해지함과 아울러 피고들에게 이를 증여하여 피고들 앞으로 이 사건 이전등기를 마쳐 준 것이므로 이 사건 토지는 ○○건설의 책임재산이 아니다. 이 사건 증여계약은 사해행위에 해당하지 않을 뿐만 아니라 ○○건설에게 사해의사가 있었다고 볼 수도 없다.

B. Determination on preserved claims

In light of the taxation period, etc., the taxation claim of this case is highly probable as to the fact that the legal relationship, which was the basis of the contract of this case, has already been established at the time prior to the contract of this case or at the time of the formation of such legal relationship in the near future, and that the claim is created by such legal relationship in the near future, and it is actually generated during the period that does not reach the

C. Determination as to the establishment of fraudulent act

(1) ① The sales price of the instant land is KRW 73 million, not 00,000,000,000, out of which ○○○○ was raised by ○○ Construction, and ○○○○ Construction Co., Ltd., purchased the instant land in the name of ○○ Construction by jointly investing the funds. ② ○○○ Construction Co., Ltd., which was established by ○○○○○○ and ○○○○○, immediately before the completion of the registration of ownership transfer, is a ○○○ Construction Co., Ltd., and is a shareholder of ○○○○. The purpose of running the instant building construction project in the name of ○○ Construction is to include the purpose of running the instant land in the name of ○○ Construction, among the reasons for the establishment of ○○○ Construction. ③ The title holder of the instant land on the instant land or the lessor of the instant housing, all of which were financed by ○○ Construction Co., Ltd., with the instant land loaned under the name of ○○ Construction Co., Ltd.

(2) Rather, a series of acts of purchasing the instant land in the name of ○○ Construction and newly constructing and leasing a building after constructing and leasing the instant land should be deemed as falling under the responsible property of ○○ Construction, on the ground that it is reasonable to evaluate that ○○○○ Construction is an operator of ○○ Construction after investing the instant land in kind as a shareholder of ○○ Construction and ○○ Construction.

(3) As above, insofar as the land of this case belongs to ○○ Construction’s responsible property, and there was no specific property against ○○ Construction at the time of the donation of this case, it shall be deemed that the act of donation of this case was an intentional intent to ○○ Construction as a fraudulent act to harm the creditor of ○○ Construction. In light of the fact that the Defendants acquired the land of this case as a child of ○○jin, not a compensatory contract, without compensation, the Defendants may not be deemed to have acted in good faith as to ○○ Construction’s fraudulent act. Accordingly, the contract of this case should be revoked by fraudulent act, and the Defendants are obliged to implement the procedure of cancelling the registration of cancellation of the transfer of this case to ○○ Construction.

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendants is justified, and the judgment of the court of first instance is just in conclusion, and all appeals by the defendants are dismissed.