Suwon District Court 201 Gohap15837 ( October 02, 2013)

The instant sales contract constitutes a fraudulent act causing the lack of joint security of creditors.

The instant sales contract constitutes a fraudulent act in view of the following: (a) after the Plaintiff was seized, the Plaintiff entered into a contract after one month thereafter; (b) the next day the transfer of ownership was completed; and (c) the sales price was not paid until the closing of the argument in the instant case.

Article 406 of the Civil Act

2013Na202382 Revocation of Fraudulent Act

Korea

AAA, Inc.

Suwon District Court Decision 201Gahap15837 Decided October 2, 2013

June 13, 2014

July 18, 2014

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

A. The sales contract concluded on November 30, 2010 with respect to each real estate listed in the separate sheet between the Defendant and BB shall be revoked within the scope of the OO members.

B. The defendant shall pay to the plaintiff 5% interest per annum from the day following the date of this judgment to the day of complete payment.

2. Purport of appeal

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

1. Quotation of judgment of the first instance;

The reasoning for this case is as follows. This court's reasoning is as follows. This case's reasoning is as follows: (a) from 6th to 11th of the fifth to 6th of the judgment of the court of first instance; and (b) it is like the entry in the reasoning of the judgment of the court of first instance; and (c) therefore,

○ Parts of the garment

In this case, considering the following circumstances, Gap evidence Nos. 2-1, 2, 3-1, 5-2, 1, 2, 9-1, 1, 2, 11-1, 1, 11-1, 2, and 1-1, 1-2, and 1-1, 1-2, and 1-1, 1-1, and the appraisal results of the first instance appraiser KimCC, the sales contract of this case is deemed to constitute a fraudulent act causing the shortage of joint security of creditors including the plaintiff, and it is presumed that the beneficiary's bad faith is presumed to be the beneficiary.

① On October 26, 2010, the director of the competent tax office of the Plaintiff-affiliated government tax office seized OO 721-1 DNA (hereinafter referred to as DDD Nos. 301, 303) on the O of the OB owned on October 26, 2010. The instant sales contract between BB and the Defendant was concluded on November 30, 2010, which left one of them, and the registration of ownership transfer was completed on December 1, 2010, immediately after the date of concluding the sales contract with respect to the general real estate and commercial buildings sold as of the instant case. The registration of ownership transfer was completed on December 1, 2010, immediately after the date of concluding the sales contract with respect to the real estate sold as of the instant case. ② At the same time, each of the instant real estate as of November 30, 2010, as at the time of the instant sales contract was set forth by BB as the following debtor:

Beneficiary of the Collateral Security

Date of registration for establishment;

Maximum debt amount

Amount of actual bonds (cost)

EE. Credit Cooperatives

January 11, 2007

OOO

OOO

FFFFFA

January 11, 2007

OOO

OOO

GG Credit Union

January 11, 2007

OOO

OOO

Total

OOO

OOO

In the instant sales contract, the sales price was determined as an OOO won, and the remainder OOOB, other than the down payment OOO won, decided to substitute the Defendant’s acceptance of the collateral obligation, etc. of the right to collateral security, which was established on each of the instant real estate. However, the Defendant paid the down payment to BB only before December 3, 2010, and the obligor’s change, etc. regarding the secured obligation, etc. of the right to collateral security, which was established on each of the instant real estate, was not made until the date of the closing of argument at the trial. As such, the circumstance where BBB, a seller, completed the registration of ownership transfer to the Defendant, the buyer, also is difficult to deem the instant sales contract as a normal transaction.

③ As to this, the Defendant decided to accept the collateral obligation of the above collateral security, but did not change the obligor on the ground that the EE-credit union, etc., which is the mortgagee, did not immediately repay part of the loan to the obligor, and thereafter, the Defendant claimed that the Defendant repaid the total amount of the collateral obligation of the above collateral security by depositing the principal and interest with the account under the name of BB, or remitting the money to E-Credit Union, etc. under the name of head HH and Kim II, which is an employee of the Defendant. However, in this case where there is no reasonable explanation that the Defendant could not directly transfer the money under the name of the Defendant, the Defendant’s assertion is insufficient to acknowledge the Defendant’s assertion on the sole basis of the entries in the evidence

④ As of December 2010, BB owned 30% of its total issued shares, 30% of its issued shares, 34% of its issued shares, and 36% of its issued shares. At the time of its establishment in May 2006, the Defendant owned 28% of its total issued shares, 16% of its leM, 23% of its leM, and 33% of these nN as the Defendant’s representative director, 16% of its issued shares, 23% of its leM, and 33% of its nN as the Defendant’s director, and nN and n and n&K as the Defendant’s director, as the Defendant’s director. As such, BB and the Defendant overlap with each other.

(5) The appraised value of each of the instant real estate as at November 30, 2010 shall be up to KRW OO. The sales price of the instant sales contract shall not extend to KRW OO.

④ At the time of the conclusion of the instant sales contract, BB’s active property was equivalent to the total market value of each of the instant real estate, DDwork Nos. 310, and 303 (i.e., the total market value of each of the instant real estate + the total market value of DDwork Nos. 301, and 303). Petty property was more active property than the total market value of the instant tax claim, including the instant tax claim. (i.e., the total amount of the instant tax claims + the KRW OOE + each of the instant real estate, Dwork No. 301, and 303; (ii) the total amount of the secured debt amount of the instant real estate, Dwork No. 303, but BB sold the instant real estate to the Defendant at low price without actually receiving the purchase price.

7) Considering such circumstances, the instant sales contract constitutes fraudulent act that causes the lack of joint security of creditors, including the Plaintiff, and the intent of BB’s intent to commit suicide may be sufficiently recognized. Therefore, the Defendant’s bad faith, a beneficiary, is presumed to be presumed.

C. Determination on the defendant's good faith defense

1) The defendant was not aware of the fact that the above contract was a fraudulent act as at the time of the conclusion of the sales contract of this case because he was merely a shareholder of BB and some shareholders. However, the evidence of the defendant's submission alone is insufficient to recognize the presumption of bad faith as the defendant's good faith, and there is no other evidence to support it. The defendant's assertion is rejected.

2) 다시 피고는, 이 사건 매매계약 체결 이후 2011. 5. 13. 이PP, 김QQ, 이RR이 피고 법인의 주식을 양수하고 2011. 5. 25. 이PP이 대표이사로 취임한 후 다시 박SS가 주식을 인수하여 2012. 11. 6. 대표이사가 박SS로 변경되어 피고의 주주 관계가 변동되었으므로 피고는 사실상 전득자에 해당하므로 박SS가 피고 법인을 인수할 당시를 기준으로 사해의사를 판단하여야 한다는 취지로 주장한다. 그러나 피고의 법인격이 부인되지 않는 이상, 피고 주장과 같이 피고 내부의 주주관계가 변동되었다는 사유만을 들어 피고를 전득자라고 볼 수 없다. 이 부분 피고의 주장은 나아가 살펴 볼 필요 없이 이유 없다.

2. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed. It is so decided as per Disposition.