Daejeon District Court Decision 2013Gau101534 ( July 11, 2014)

Revocation of Fraudulent Act

At first, a legal act on an object that is not a debtor's responsible property can not be considered as a fraudulent act.

Article 30 of the National Tax Collection Act, Article 406 of the Civil Act

Daejeon High Court 2014Na12407

Korea

Housing Construction Corporation

Daejeon District Court Decision 2013Gahap101534 Decided July 11, 2014

June 10, 2015

August 19, 2015

1. The plaintiff's appeal is dismissed.

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

1. Purport of claim

Between the Defendant and Nonparty ○○○○, ○○○-dong 161-5, 493 square meters, and 161-23

The sales contract concluded on July 14, 201 with respect to the land of two parcels (hereinafter referred to as the "land of the above two parcels") shall be revoked within the limit of KRW 404,411,460. The defendant shall pay to the plaintiff 404,411,460 with interest calculated at the rate of 5% per annum from the day following the day when the judgment of the case is finalized to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The sales contract concluded on July 14, 201 with respect to the instant land between the defendant and the non-party ○○○ shall be revoked within the limit of KRW 127,283,750. The defendant shall be revoked to the plaintiff.

127,283,750 won and the interest thereon from the day following the day when the judgment of this case is finalized to the day of full payment.

5% of the 5% interest shall be paid.

1. Basic facts

A. On May 16, 2007, 2009, August 11, 2009, and August 23, 2011, the head of the ○○○ Tax Office under the Plaintiff’s control sold each real estate under his/her own possession. The head of the ○○ Tax Office imposed capital gains tax and comprehensive real estate holding tax on sexual ○○○○ in relation to each sale of the said real estate and possession of the said real estate as indicated in the table below, and on November 29, 2013 due to the failure of the sexual ○○○○○ to pay such tax, capital gains tax, comprehensive real estate tax, and additional tax, the total amount of which exceeds 404,411,460 won.

B. On April 15, 2002, gender ○○ purchased the instant land from Kim Il-young, and on May 3, 2002

The registration of ownership transfer has been completed by lending the name of one's own Republic of Korea Kim ○, Kim ○.

around June 2008, the transfer registration of ownership to Daejeon District Court 2008Gahap5619 against Kim ○, Kim Jong-○.

On August 28, 2008, the above court filed a lawsuit for cancellation registration, and on which August 28, 2008, the above court made a compulsory adjustment decision with the purport that "Seman Kim Il-○ shall implement the procedure for cancellation registration of ownership transfer registration, while Kim ○ shall implement the procedure for ownership transfer registration for the land in this case on April 15, 2002 to Sung ○○○ on the land in this case (hereinafter referred to as "voluntary adjustment decision of August 28, 2008"), and the above compulsory adjustment decision became final and conclusive around that time.

C. On August 24, 2011, Sung-○ completed the registration of ownership transfer of the instant land in accordance with the above compulsory adjustment order, and on the same day, completed the registration of ownership transfer for the Defendant based on the sales contract dated July 14, 201 (hereinafter “this case sales contract”). On the same day, the registration of ownership transfer for the instant land was cancelled following the registration of each ownership transfer on May 31, 2005.

[Ground of recognition] Facts without dispute, Gap's statements in Gap's 1, 2, 4 through 6 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiff's assertion

1) At the time of the instant sales contract, the Plaintiff had a total of KRW 127,283,750 capital gains tax and comprehensive real estate holding tax (excluding capital gains tax Nos. 3 of the table of arrears status arising from the real estate transaction of ○○○ after the instant sales contract was concluded) against sexual ○○.

2) The Sung○○ concluded the instant sales contract with the Plaintiff in excess of its obligation, including the foregoing debt owed to the Plaintiff, which ought to be revoked as a fraudulent act.

3) The right to collateral security previously established after the instant sales contract, which was a fraudulent act, was cancelled, and the Defendant, the beneficiary, shall pay KRW 127,283,750 to the Plaintiff for restitution of the original claim amount.

B. Defendant’s assertion

1) At the time of the instant sales contract, sexual ○○ was not the actual owner of the instant land. However, a fraudulent act against the general creditors of sexual ○○○’s selling and buying of the instant land, which is not the property held by sexual ○○○’s liability

subsection (b) of this section.

2) The Defendant did not know the Defendant’s obligation at the time of the instant sales contract, and was acting in good faith as to the fact that the said sales contract was a fraudulent act by sexual intercourse ○○, a seller.

3. Determination

(a) Facts of recognition;

The following facts are not disputed between us, or may be acknowledged by taking into account the overall purport of the pleadings in each of the above facts of recognition, Gap evidence Nos. 2, 5 through 8, 11 through 13, and Eul evidence Nos. 1 through 7:

1) Promotion of the Defendant’s apartment construction project and change in the owner of the instant land

가) 이■■(개명전 성명은 이□□)는 1996. 10. 28. 상속재산 협의분할에 따라 이 사건 토지 및 ○○시 ○○동 161-20 전 253㎡, 같은 동 161-22 전 358㎡(이하 위 두 필지의 토지를 '이 사건 나머지 토지'라 한다)의 소유권을 취득하였다.

나) 피고(1999. 1. 29. 명칭을 ○○○○건설 주식회사로 하여 설립되었다가, 그 명칭이 2002. 7. 19. 현재와 같이, 2008. 8. 12. 주식회사 ◈◈◈◈산업으로, 2011. 6. 29. 다시 현재와 같이 각 변경됨)는 1999. 5. 10. ○○시장으로부터 이 사건 토지 및 나머지 토지에 아파트 1개동을 건축하는 아파트건설사업을 승인받았다(이■■로부터 토지사용승낙을 받아 사업승인을 받은 것으로 보임).

C) While the Defendant promoted the above apartment construction project, the land of this case was sold to ○○ Bank Co., Ltd. on March 19, 2002 in accordance with the application for voluntary auction from ○○ Bank (former ○○ Bank Co., Ltd.), and Kim Balan sold the land of this case to ○○○ on April 15, 2002 and completed the registration of ownership transfer pursuant to the above sales contract to ○○○ upon the request of ○○○○. Meanwhile, Kim Jong-tae was 202.

10. 12.12. Of the ownership of the remaining land of this case, the ownership of the remaining land of this case was owned by acquiring the remaining 1/3 shares on December 4, 2002. The Defendant’s implementation of the above apartment construction project was suspended in the course of the auction of the land of this case and the change of ownership of the remaining land of this case.

2) The judgment in favor of the provisional registration of this case and the leap○○○

A) The “Baltry” (it appears that gender ○ appears to have used the name of “Baltry” in the name of Kim Jong-si and Kim Jong-si.

On June 8, 2005, interest 40% per month, 20% per month thereafter, 300 million won was borrowed from leap○ on November 8, 2005, and on June 9, 2005, the period of repayment was determined as 40% per month, 30 million won was determined as 40% per month, and on June 9, 2005, the provisional registration of the preservation of the claim for ownership transfer (hereinafter referred to as the "provisional registration of this case") was completed with respect to the land of this case and the remaining land as security for the above principal and interest.

B) After November 22, 2005, Kim Il-young, Kim Jong-tae, and Maap○○ on the loan principal amounting to KRW 1.5 billion and the due date.

In a case where the Administrator of the Korean Supreme Court of Justice Kim Il-young, Kim Jong-young, Kim Il-young, the due date for repayment of November 22, 2006 or even before the due date

If it is deemed difficult to recover the claim, 000 shall be established on the land in this case and the remaining land.

The loan certificate stating that the registration of ownership transfer of each land shall be completed upon succession to the obligation;

“Lap○○○” means KRW 2.3 billion in the purchase price of the instant land and the remainder of the instant land from Kim Buri, Kim Young-chul.

I prepared a real estate sales contract stating that "to purchase the real estate."

C) On October 25, 2006, ○○ filed a lawsuit against the Daejeon District Court Decision 2006Gahap1160, Daejeon District Court 2006, which sought implementation of the principal registration procedure for the transfer of ownership on the instant land and the remaining land. On July 19, 2007, the above court rendered a judgment citing the entire claim of leap○○○○ on the ground that the Defendant failed to pay the principal and interest of KRW 1.5 billion on the loan of KRW 1.5 billion, and on the ground that the Defendant did not pay the principal and interest of KRW 1.5 billion on the loan of KRW 1.5 billion and that the sales contract for the instant land and the remaining land was concluded between Kim Il, Kim Il, and Ma○○○ (hereinafter referred to as the “instant judgment”).

The judgment of patience was pronounced, and the above judgment became final and conclusive at that time.

D) Since then, as described in the above 1-B B, gender ○ filed a lawsuit against Kim ○, and Kim Il-young, and the decision of compulsory adjustment was finalized on August 28, 2008.

3) Acquisition of the Defendant’s land of this case

가) 윤○○과 성○○이 2007. 7. 19.자 인용 판결이나 2008. 8. 28.자 강제조정결정의 집행으로 각 그 명의로 이 사건 토지에 관한 소유권이전등기를 마치지 않고 있던 중에, 이■■는 2011. 6. 29. 피고의 대표이사에 취임하여 중단되어 있던 위 아파트건

On July 14, 2011 and August 17, 2011, the Defendant’s name was sought to resume the snow business.

The following agreements were made between ○○ and ○ (hereinafter collectively referred to as the “Agreement on August 17, 201”).

① The Defendant assumed the Defendant’s debt of KRW 2 billion with respect to Kim Il-chul, Kim Il-young, and acquired the ownership of the instant land and the remaining land.

② The provisional registration of this case is cancelled, and the Defendant, after acquiring ownership of each of the above lands, established a new provisional registration (hereinafter referred to as a “new provisional registration”) on each of the above lands to ○○○.

③ If the Defendant pays KRW 2 billion by January 14, 2013, 000,000 shall cancel a new provisional registration, and if the Defendant fails to repay within the said period, the Defendant transfers the ownership of each of the above land and the apartment construction business right to a person designated by le○○ or leap○○.

(4) The defendant shall submit documents necessary for the transfer of ownership of each of the above land, such as a certificate of seal imprint, to ○○○ by no later than 15 days

B) After August 17, 201, the details of the registration completed with respect to the instant land in the course of implementing the agreement on August 17, 2011 are as follows.

C) On August 26, 201, after completing the registration of transfer of ownership on the instant land in its name, the Defendant paid the comprehensive real estate holding tax on the instant land in arrears, and accordingly, the registration of seizure at ○○ City was cancelled. Meanwhile, the Defendant issued a certificate of personal seal impression stating “for sale of real estate for use” on a three-month basis from August 17, 201 to May 2004, pursuant to the agreement between the Plaintiff (Disposition Office) and ○○○ on the same day.

(D) After September 3, 2014, the Defendant transferred the instant land and the remaining land and apartment construction business rights to ○○ Holdings Co., Ltd., and entered into an agreement with ○○ Holdings Co., Ltd. on the sales contract.

On May 4, 2015, a new provisional registration is made against leap○ with respect to the instant land and the remaining land.

The main registration of the instant real estate was completed as of the date of closing the argument in the instant case.

The state where a structure for construction is installed (currently, ○○ Holdings Co., Ltd.) apartment.

It seems that the construction project is being promoted).

B. Whether the instant sales contract constitutes a fraudulent act by sexual ○○

1) The revocation of a fraudulent act is an obligation to preserve the obligor’s property jointly secured by the claim.

Revocation of fraudulent act between a person and a beneficiary, and any property deviating from the debtor's general property

In order to return for all creditors to the beneficiary or the subsequent purchaser, the legal act on the object that is not the debtor's responsible property cannot be said to be a fraudulent act.

2) In full view of the following circumstances as to the instant case, the actual owner of the instant land at the time of the instant sales contract, and therefore, the said sales contract concluded with respect to the instant land, which is not the subject property of sexual ○○○, cannot be deemed as a fraudulent act in relation to the general creditors of sexual ○○.

A) The invalidity of any change in the real right to real estate made by the registration under the title trust agreement and the title trust agreement cannot be set up against a third party (Article 4(3) of the Act on the Registration of Real Estate under Actual Titleholder’s Name). Pursuant to the cited judgment rendered on July 19, 2007, which became final and conclusive prior to the establishment of the provisional registration of this case and the instant sales agreement, and on July 19, 2007, ownership of the instant land was finally acquired by completing the principal registration based on the above provisional registration. Even if the Sung○○ completed the registration of ownership transfer under his own name in accordance with the compulsory adjustment decision made on August 28, 2008, Ma○○ was entitled to cancel the registration of ownership transfer under the order of provisional registration of this case and acquire ownership of the said land. For this reason, even if the Defendant concluded an agreement on August 17, 201 to acquire ownership of the instant land and completed the registration of ownership transfer under his name, the right of ○○○○○ and the instant general property had already been established and title 7.

B) The Defendant and ○○○ entered into an agreement on August 17, 2011 with a view to acquiring ownership of the instant land by acquiring the Defendant’s obligation against Kim Il-young (actually sexual ○○), with the aim of acquiring ownership of the instant land. To implement the agreement, the principal registration based on the instant provisional registration under the name of ○○, first of all, was made.

Then, if the registration of ownership transfer is completed in the name of the defendant, the sex ○ is the first part.

I did not acquire the ownership of the land of this case. However, the defendant and leap○○ above.

In accordance with the forced adjustment decision of August 28, 2008, there is no choice of the same method, and the action in the name of the Kim Il-young.

After cancelling the registration of transfer of right and completing the registration of transfer under the name of Sung-○○, Sung-○.

The circumstances in which the method of completing the registration of ownership transfer under the name of the defendant was selected according to the sales contract (the defendant)

If you choose such a method, the burden of registration expenses, the convenience of the procedure, or the legal nature of this method.

It appears that the sex ○○ is based on the foregoing arrangement with the Defendant without any particular consideration.

The co-operation in the administration of this case is, even by itself, when the land in this case is in fact in leap○’s property.

As a result, the Defendant: (a) the ownership of the instant land, the ownership of which is substantially owned by ○○;

The transfer registration of ownership has been completed in the name of ○○○ in the process of transferring to the Corporation.

It is unreasonable to regard land as being incorporated into general property of ○○.

C. Whether the defendant is bona fide or bona fide

더 나아가 이 사건 매매계약 당시 피고의 선의 여부에 대하여 살펴보면, 위에서 설시한 피고 명의 소유권이전등기의 경위, 성○○과 피고 또는 이■■ 사이에 어떠한 인적관계가 존재한다고 볼 만한 사정이 없는 점 등에 비추어 보면 피고가 이 사건 매매계약이 성○○의 일반채권자를 해하는 사해행위가 된다는 것을 알지 못하였다고 판단되고, 피고가 이 사건 토지의 소유권을 취득하기 전에는 등기부상 김●●이 소유자로 등재되어 있었던 점, 피고는 그 명의로 소유권이전등기를 마친 이후 김●●의 체납세금을 납부한 점 등에 비추어 보면, 갑 제11호증의 기재만으로는 위와 같은 선의 판단을 뒤집기에 부족하다.

D. Sub-committee

Therefore, it is not necessary to examine further whether sexual ○○’s debt exceeds the obligation, etc., and neither the mother nor the Plaintiff’s claim is justified.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.