Daegu District Court Decision 00Do2014Gadan3011 ( July 1, 2014)

The act of transferring the real property of this case to a delinquent taxpayer constitutes a fraudulent act with the intent to avoid a claim against a delinquent taxpayer.

The act of transferring the real property of this case to a delinquent taxpayer constitutes a fraudulent act with the intent to avoid a claim against a delinquent taxpayer.

Article 1 of the National Tax Collection Act

Daegu District Court 2014Na302940 Revocation of Fraudulent Act

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Some of the national holidays

December 24, 2014

February 4, 2015

1. Of the judgment of the court of first instance, the part concerning the conjunctive claim against Defendant MaximumS and RedD is revoked, and the Plaintiff’s conjunctive claim against Defendant MaximumS and RedD is dismissed, respectively.

2. The appeal by Defendant NewF is dismissed.

3. The costs of appeal arising between the Plaintiff and Defendant NewF are borne by Defendant FF, and the total costs of appeal arising between the Plaintiff and Defendant FF and Defendant FD are borne by the Plaintiff.

1. Purport of claim

A. Claim against Defendant NewF

With respect to the real property listed in paragraph 1 of the Schedule:

A) The sales contract concluded between newG and Defendant NewF is revoked on February 28, 2013.

B) Defendant NewF’s 00 District Court 00 Branch 00 00 registry office March 5, 2013 to NewG.

The procedures for the cancellation registration of transfer of ownership completed by the receipt No. 266 shall be implemented.

B. Claim against Defendant MaximumS and RedD

1) The primary purport of the claim

A) As to the real estate listed in Attachment 2:

(1) The sales contract concluded between NewG and Defendant MaximumS is revoked on February 27, 2013.

(2) Defendant LS shall have 00 district court 00 branch court 00 registry office 00 registry office March 4, 2013 to NewG.

The procedures for the cancellation registration of transfer of ownership completed by the receipt No. 260 shall be implemented.

B) As to each real estate listed in separate sheet Nos. 3 and 4:

(1) The sales contract concluded between NewG and Defendant HongD on February 27, 2013 is revoked.

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(2) Defendant HongD shall have 00 district court 00 branch court 00 registry office on March 4, 2013 to NewG.

The procedures for the cancellation registration of transfer of ownership completed by the receipt No. 262 shall be implemented.

2) The gist of the preliminary claim

A) Defendant MaximumS shall be 00 local areas to NewG with respect to the real property listed in [Attachment List No. 2]

Court 00 branch office 00 registry office, and completed on March 4, 2013 pursuant to the receipt No. 260

shall comply with the procedure for the registration of cancellation.

B) As to each real estate listed in the separate sheet Nos. 3 and 4, Defendant HongD shall have the ownership completed on March 4, 2013 by the 00 old District Court 00 Branch 00 Registry 00 Branch 00 Register 262.

The procedure for the cancellation registration of the former registration shall be implemented.

2. Purport of appeal

A. Defendant NewF: The part regarding Defendant NewF among the judgment of the first instance court is revoked. The Plaintiff’s Defendant is revoked.

The claim against the FF is dismissed.

B. Defendant MaximumS: The part of the judgment of the court of first instance against Defendant MaximumS is revoked, and the revocation part is revoked.

The plaintiff's claim corresponding to this is dismissed.

C. Defendant HongD: The part against Defendant HongD in the judgment of the first instance, which was revoked, and the part that was revoked

The plaintiff's claim corresponding to this is dismissed.

1. The scope of the judgment of this court in respect of claims against Defendant MaximumS and RedD;

In the first instance court, the Plaintiff’s revocation of fraudulent act on real estate in attached Tables 2, 3, and 4 as well as registration of ownership transfer due to the restoration of the original state of the Plaintiff’s largestS and redD.

- 4- Performance of the procedure for registration of cancellation is sought respectively, and each of the conjunctive claims sought implementation of the procedure for registration of cancellation of ownership transfer on each of the above real estate due to the exercise of the right to claim a obstruction of the registration of invalidity of the cause for the preliminary claim. The court of first instance dismissed the primary claim against the above Defendants, and accepted the conjunctive claim. Since only the Defendants appealed, it is reasonable to judge only the conjunctive claim against the above Defendants.

2. Basic facts

The following facts are not disputed between the parties, or may be acknowledged in Gap evidence 2 to 7 (including branch numbers) by integrating the purpose of the whole pleadings.

(a) A taxation claim;

1) On February 25, 2013, the director of the tax office under the Plaintiff-affiliated tax office started the tax investigation of the Z only (hereinafter “Z”), and issued the notice of payment of corporate tax of KRW 977,580,104 (the due date of payment May 31, 2013) to the Z on April 3, 2013.

However, the Z did not pay the above tax even after the payment deadline.

2) On June 20, 2013, pursuant to Article 39 of the Framework Act on National Taxes, the director of the tax office00: (a) designated newG as the representative director of the Z and the oligopolistic shareholder; (b) notified the payment of KRW 342,348,540 equivalent to the share ratio of the newG out of the delinquent amount of the Z up to that time; and (c) newG received the notice of payment on July 22, 2013 (hereinafter “instant tax claim”).

3) However, newG did not pay the above corporate tax up to now, and the delinquent tax amount, including the additional charge, was KRW 366,279,660 at the time of the filing of the instant lawsuit.

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B. While the GG’s disposal of real estate exceeds positive property, it concluded a sales contract with Defendant NewF on February 28, 2013 with respect to the real estate listed in paragraph (1) of the attached Table No. 1 (hereinafter “the instant one real estate”) (hereinafter “instant sales contract”), and on March 5, 2013, as the receipt of 00 Branch 00 Branch 00 Branch 00 Branch 00 Branch 266, the registration of ownership in the name of Defendant NewF, 2) the real estate listed in paragraph (2) of the attached Table No. 2 of the attached Table No. 2 (hereinafter “instant 2 real estate”) on February 27, 2013, concluded a sale contract with Defendant LF on March 4, 2013, and received the registration of ownership transfer from Defendant 20 Branch 260,000 Branch 260,000 Branch 260,000, each of the above real estate (hereinafter “Defendant 34, 2034, 20134”).

(a)the existence of preserved claims;

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 the juristic act, there has already been a legal relationship that serves as the basis for the establishment of the claim, and there is high probability for the creation of the claim in the near future based on such legal relationship. - In a case where a claim has occurred due to the realization of the probability in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2006Da66753, Jun.

According to the above facts, around July 22, 2013, the tax claim of this case was established by notifying the newG to pay it to the head of the tax office. However, as of February 28, 2013, there was a legal relationship that is the basis for establishing the tax claim pursuant to the Plaintiff’s corporate tax claim on Z and the secondary tax liability on newGG, the representative director and the oligopolistic shareholder, and due to the financial state, the Z is in arrears with corporate tax, and accordingly, there was a high probability on the fact that the secondary tax obligation is established. In fact, the possibility was realized due to the payment notice on the ZZ’s default of corporate tax and the payment notice on newGG, and the tax claim of this case becomes the preserved claim of this case.

(b) The intention to commit fraudulent acts and to injure himself;

1) The facts that NewG sold the instant real estate to Defendant NewF in excess of its obligation are as seen earlier. This constitutes a fraudulent act as an act of reducing liability property to the general creditors of newG including the Plaintiff, and newG, the debtor, was aware of the aforementioned circumstances, and is also presumed to have been malicious of Defendant NewF.

2) As to this, Defendant NewF, first of all, had a loan claim amounting to KRW 47 million against NewG, but it was argued that it does not constitute a fraudulent act since it was received in accord with the real estate of this case. However, if the debtor, whose property was in excess of his obligation due to insufficient repayment of the debtor's whole debt, offered it as payment in accord with the intent to obtain preferential satisfaction of the debtor's claim against any specific creditor, barring special circumstances - 7 this would directly compromise the interests of other creditors and thereby constitute a fraudulent act in relation to other creditors (see, e.g., Supreme Court Decisions 96Da23207, Oct. 29, 1996; 2006Da47301, Feb. 23, 2007). Thus, even if newG used the real estate of this case to pay the existing debt to Defendant NewF with the real estate of this case, it is not reasonable for the Defendant’s assertion in this part of this case.

New FF also assumes that newG bears tax liability to the Plaintiff.

As such, the purport that the instant sales contract was not known to the effect that it was also a fraudulent act.

The evidence presented by Defendant New FF alone is insufficient to reverse the presumption; month;

E. Unless there is evidence that Defendant FF is a bona fide beneficiary, this part of this part of Defendant FF

The argument is without merit.

C. Sub-committee

Therefore, the instant case between NewG and Defendant NewF upon the Plaintiff’s exercise of obligee’s right of revocation

1 The instant sales contract concluded on February 28, 2013 with respect to real estate shall be revoked as a fraudulent act.

Defendant NewF due to its restitution, on March 2013, 2013, with respect to the instant real property to NewG

5. Ownership of the name of Defendant NewF, which was completed by the 00 district court 00 branch court 00 registry office 266.

There is an obligation to implement the procedure for registration of cancellation of right transfer.

3. Determination as to the claim against Defendant MaximumS and RedD

A. The plaintiff's assertion

The actual purchaser of the instant 2 real estate is the largest KK, which is the father of the Defendant MaximumS., and the instant case

3. The actual purchaser of the real property 3.4 is JLL, the mother of Defendant HongD. The Defendant pursuant to the title trust agreement and the agreement between the maximumB and Defendant YV and the title trust agreement between the Gangnam and Defendant HongD.

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The sale and purchase contract for each of the above real estates was entered into by the purchaser, and the registration of ownership transfer was completed in the name of the defendant lowest, HongD, and NewG, the seller, was also aware of the above circumstances.

Ultimately, pursuant to Article 4 of the Act on the Registration of Real Estate under Actual Titleholder's Name, 2, 3, 4 Dong in this case

The change in the real rights in Busan is null and void. Since the ownership of the real estate in this case 2, 3, and 4 is still in existence in NewGG, the seller, the plaintiff shall preserve the tax claim in this case against NewG.

To exercise the right of exclusion of disturbance based on ownership on behalf of insolvent newG.

Therefore, to NewG, Defendant MaximumS is a statement on the ownership transfer registration of the instant 2 real estate.

The registration procedure of the lawsuit, and the registration of the cancellation of ownership transfer on the real estate in this case 3 and 4

shall be liable to implement each proceeding.

B. Determination

In full view of the statements in Gap evidence No. 7, newG is 00 years old, taking into account the purport of the entire pleadings.

in this case under investigation as to whether a fraudulent act was committed in relation to the taxation claim of this case

2 In fact with respect to real estate, the defendant was made a sales contract with the largestB, upon request by the largestB.

The registration of ownership transfer was completed in the leastS name, and the real estate of this case 3 and 4 was actually completed.

The strongCC and the sales contract were made, and upon the request of the strongCC, transfer of ownership, etc. in Defendant HongD name.

The fact that he stated that he stated that he stated it is recognized.

However, the title trust agreement refers to a person who holds ownership of real estate or actually acquired it.

Where a person who intends to acquire or intends to acquire real estate inside the country with another person, the person having the actual right to such real estate

holding or holding a real right, and only the registration thereof shall be made in the name of the other person;

LB means the arrangement, the most BB is the father of the Defendant mostS, and the strongCC, as the mother of the Defendant RedD.

It may have been requested by the doctor to accept the registration of transfer of ownership in the name of the defendant ChoiS or RedD.

In light of the above facts of recognition and the remaining evidence submitted by the Plaintiff, even if they were to be admitted.

Even if the party to the actual sales contract and the person to whom the purchase price was to be paid are the largest BB, and strongCC:

With respect to each of the above real property between LBB and Defendant MaximumS and between Gangnam and Defendant RedD

on-the-spot basis, the largestB or the strongCC shall have ownership and only the name of registration.

There is a title trust agreement with the purport to be Defendant LAS or Defendant HongD, and this agreement is the same.

Pursuant to each title trust agreement, the ownership of the name of Defendant MaximumS and RedD with respect to each of the above real estate

It is not sufficient to recognize that the registration of transfer of right has been completed, and there is no other evidence to recognize it.

Therefore, the registration of ownership transfer in the name of the defendant ChoiS with respect to the instant 2 real property is the largest B.

under a title trust agreement between the largestS, and red on the instant 3 and 4 real estate

D That the registration of transfer of ownership in the name of DoD complies with the title trust agreement between strongCC and Defendant HongD.

The plaintiff's assertion on the defendant ChoiS and HongD on the premise that the plaintiff's claim should be examined further.

No reason is without merit.

4. Conclusion

Then, the plaintiff's claim against Defendant NewF is justified, and the plaintiff's defendant is justified.

Preliminary Claim against MaximumS and SpanD is dismissed for reasons not being justified, and the judgment of the court of first instance is dismissed.

Part on the conjunctive claim against Defendant MaximumS and RedD, with a different conclusion

For this reason, each of the plaintiff's revocation and each of the plaintiff's conjunctive claims against the defendant MaximumS and RedD

The plaintiff's claim against Defendant New FF is justified in conclusion. Thus, the defendant is justified in conclusion.

The appeal by the new FF is dismissed, and it is so decided as per Disposition.