Gift contract constitutes an intentional harm to the general creditors of the delinquent taxpayer, including the plaintiff, and is presumed to be a bad faith of the delinquent taxpayer's will and spouse.

The gift contract constitutes a breach of trust against the general creditors of the delinquent taxpayer including the plaintiff, and the bad faith of the delinquent taxpayer and his spouse is presumed, and in the event that the debtor is in excess of his/her obligation only by fraudulent act, the creditor can only cancel the contract up to the limit of the amount of the claim of the assets, as long as the fraudulent act is divided.

201Aband 100812 Revocation of Fraudulent Act

Korea

XX

February 1, 2012

February 15, 2012

1. The gift contract of KRW 90,000,000 entered into on April 25, 2008 between the defendant and the non-party KimA, and the contract of KRW 400,000,000 entered into on September 19, 2008 shall be revoked within the limits of KRW 391,375,860, respectively.

2. The defendant shall pay to the plaintiff 391,375,860 won with 5% interest per annum from the day following the day when this judgment became final and conclusive to the day of complete payment.

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

As set forth in the text.

1. Basic facts

(a) Particulars of taxation of capital gains tax;

1) The KimA transferred 954,000,000 square meters of forest 00-00,000 forest Y-dong 00,000,000, to YB and one other 12,000,000 won on March 17, 2008, intermediate payment of KRW 377,000,000 on April 17, 2008, and the remainder of KRW 477,00,000 on June 13, 208, respectively (hereinafter referred to as the "real property of this case" and the "sale of this case").

2) KimA did not comply with the scheduled and final return on the transfer of the instant real estate.

3) On August 1, 2010, the head of Samsung District Tax Office decided to transfer the instant real estate to KimA as KRW 435,36,905, and local income tax 43,536,690, with respect to the transfer of the instant real estate. On September 27, 2011, the date of the instant lawsuit, the transfer income tax amount as of September 27, 201, is KRW 509,737,440, including additional dues (= principal tax amount of KRW 452,403,860 + additional dues of KRW 57,33,580).

(b) Donation to the defendant by KimA

1) The Defendant is the spouse of Nonparty KimA.

2) On April 17, 2008, KimA received an intermediate payment of KRW 377,000,000 from the sales of this case on April 17, 2008, and then donated the said money to the Defendant’s account by paying KRW 90,000,000 among them on April 25, 208.

3) On June 14, 2008, KimA received the balance of KRW 477,000,000 from the purchase price of the instant case and deposited it into his own beneficiary certificate account. On September 19, 2008, KimA returned KRW 420,000 out of the beneficiary certificate account and deposited KRW 400,000 among them into the Defendant’s account, and donated the said money.

(c) Insolvent of KimA;

The KimA had a deposit claim in the instant real estate as active property, the ownership of the instant real estate, the ownership of the ownership of 00-00 m2,968 m2,968 m2,9683 m2,000 m2,000 m2,000 m2,000,000,0000,0000,0000 won, but the deposit amount as of September 19, 2008 (i.e., the balance of one bank + KRW 40,387,144 m2 + the remainder of one bank + KRW 13,607 m2,049 m20,257,200 m20.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 5 (including branch numbers for those with a tentative number) and the purport of the whole pleadings.

2. Judgment on the plaintiff's preserved claim

A. Determination on the cause of the claim

1) In principle, a claim that can be protected by the obligee’s right of revocation should have arisen before an obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, at the time of such act, there is a high probability that the legal relationship, which is the basis of establishment of the claim, has already been established at the time of such act, and that the claim is created by such legal relationship in the near future, and in a case where a claim has occurred due to its realization in the near future, such claim may also become a preserved claim of the obligee’s right of revocation (see Supreme Court Decision 2000Da37821, Mar. 2

2) According to the above facts, the Plaintiff’s claim for capital gains tax on the transfer of real estate of this case was already established on June 30, 2008, when KimA agreed to sell the real estate of this case to BB outside on March 2008, Article 21(2)2 of the former Framework Act on National Taxes (amended by Act No. 9131 of Dec. 26, 2008), Article 98 of the former Income Tax Act (amended by Act No. 9270 of Dec. 26, 2008), Article 162(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20931 of Jul. 24, 2008), and the Plaintiff’s claim for capital gains tax on the transfer of real estate of this case was established on June 30, 2008, and there is high probability that the Plaintiff’s claim for capital gains tax on the transfer of the real estate of this case was actually established on June 1, 2008.

B. Judgment on the defendant's assertion

The Defendant asserts to the effect that it is unreasonable to impose capital gains tax by applying a high tax rate of 60% on the ground that the instant real estate is land for non-business use. As such, the Defendant’s assertion on this part is without merit, since there is no evidence to acknowledge that the instant taxation disposition was void due to significant and apparent defects in the Plaintiff’s taxation disposition, or that the instant taxation

3. Determination on the revocation of fraudulent act and the claim for restitution

A. Whether the fraudulent act was established

In case where a debtor continuously disposes of several properties, as a matter of principle, whether each act causes insolvency or not (see Supreme Court Decision 2000Da69026, Apr. 27, 2001). However, when there are special circumstances to regard the series of acts as a single act, it shall be determined whether the other party to the disposition is uniform, whether each disposition is close to time, whether the other party and the debtor are specially related, and whether the motive or opportunity for each disposition is uniform, etc. (see Supreme Court Decision 2002Da23857, Sept. 24, 2002).

In light of the above legal principles, since the defendant was the spouse of KimA, KimA's donation of KRW 90 million to the defendant on April 25, 2008, and the donation of KRW 400 million on September 19, 2008 to the defendant of KimA was made on the same opportunity as the purchase price receipt of the real estate of this case. The above donation of KRW 90 million was 8 days after the receipt of the settlement of the real estate of this case. The above donation of KRW 40 million was 3 months after the receipt of the balance of the sale of this case and deposited into the beneficiary certificate account, the above donation of KRW 40 million to the defendant of KimA constitutes one act. Since KimA donated the above KRW 490 million to the defendant, KRW 61,028,00,00 and KRW 400,000,000, KRW 7080,000, KRW 3050,000, KRW 280,000.

(b) Scope of cancellation and reinstatement;

Since the right to revoke a fraudulent act aims to preserve common security of claims, the scope of revocation is limited to the extent necessary and sufficient to preserve common security. Therefore, in a case where a debtor is in excess of his/her obligation only by means of a fraudulent act, the creditor is sufficient to revoke only the part, as long as the fraudulent act is separated, which falls short of the common security of the claim, within the scope of his/her claim amount, and may not revoke the entire act (see Supreme Court Decision 2010Da36209, Aug. 19, 2010). Therefore, the scope of revocation and return should be limited to the smaller amount between the Plaintiff’s preserved claim, the Defendant’s profit, and the common security of KimA.

1) The plaintiff's preserved claim

The amount of the Plaintiff’s preserved claim shall be KRW 452,40,860, as claimed by the Plaintiff, among the transfer income tax of this case, including additional charges.

2) The defendant's interest and the joint security shortage of KimA

Since the donation of KimA to the defendant shall be considered as a single fraudulent act, the donation amount shall be KRW 490 million, and the joint security shortage of KimA is KRW 391,375,860, as seen earlier.

3) Sub-determination

Therefore, the scope of cancellation and return is 391,375,860 won.

4. Conclusion

Therefore, the contract of donation of KRW 90,000,00 between the defendant and KimA on April 25, 2008, and the contract of donation of KRW 400,00,000,00 entered into on September 19, 2008 shall be revoked respectively within the limit of KRW 391,375,860, respectively. The defendant is obligated to pay to the plaintiff the damages for delay calculated with the amount of KRW 391,375,860, and the damages for delay calculated with the amount of KRW 5% per annum as stipulated in the Civil Act from the day following the day when the judgment became final to the day when the full payment is made. Thus, the plaintiff's claim is justified and it is so decided as per Disposition.