Ansan-2016-Shap-6900 ( October 25, 2017)

An act of a delinquent taxpayer to donate real estate disposal price to his/her child constitutes a fraudulent act and is presumed to be a bad faith of the beneficiary.

Only a unilateral statement of the debtor, which is not objective and acceptable evidence, or a statement which is merely a third party's prosecution, should not be readily concluded that the beneficiary was bona fide at the time of the fraudulent act.

Article 30 (Cancellation of Fraudulent Act and Restoration to Original State)

2017Na203204 Revocation of Fraudulent Act

Korea

O KimO

Suwon District Court Decision 2016Gahap6900 decided May 25, 2017

June 21, 2018

July 19, 2018

The defendant's appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

1. The respective gift agreements concluded on March 6, 2015, August 25, 2015, and September 15, 2015 between the defendant and KimA shall be revoked within the limit of KRW 274,909,720.

2. The defendant shall pay to the plaintiff 274,909,720 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

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 Court is as follows, and the reasoning for this Court shall be accepted by the main sentence of Article 420 of the Civil Procedure Act, because it is the same as the reasoning for the judgment of the first instance except for the addition of the judgment of this Court in Paragraph 2 (excluding the part corresponding only to the Joint Defendant KimCC of the first instance court that has been separately determined).

○○ “Defendant KimB” as “Defendant”, “Defendants” as “Defendant and Codefendant KimCC in the first instance,” and “Defendant KimCC” as “Codefendant in the first instance trial and KimCC.”

The "this Court" of 8th and lower 3th of the judgment of the first instance court shall be applied to "the first instance court".

2. Additional determination by this Court

A. The defendant's assertion

1) The Defendant’s money received from KimA is not KRW 347,00,000, not KRW 217,000,000, not KRW 217,000,000, not the above money was donated, but the Defendant’s repayment of approximately KRW 300,000,00 to KimA does not constitute a fraudulent act.

2) Even if the Defendant received the above money from KimA, the Defendant was residing in the long distance with KimA, so it could not be known that the Plaintiff would have caused global income tax and transfer income tax claims against KimA, a preserved claim, due to the occurrence of the Plaintiff’s global income tax and transfer income tax claims against KimA, and the Defendant constitutes a bona fide beneficiary.

B. Determination

1) As to the assertion that the fraudulent act was not a donation but a repayment of the loan

A) Relevant legal principles

A creditor who claims that a legal act, etc. of a debtor is a fraudulent act and seeks revocation thereof shall not only include the existence of the preserved claim and the debtor's legal act, etc., but also the fact that the debtor has caused insolvency due to a legal act, etc., and shall specifically assert and prove the requirements for the establishment of a fraudulent act (see Supreme Court Decision 2002Da59092, Apr. 23, 2004). Even in cases where the debtor's repayment according to the specific creditor's principal obligation while the debtor exceeds his/her obligation results in a decrease in the joint security of other creditors by performing the repayment according to the specific creditor's principal obligation, the repayment does not constitute a fraudulent act, in principle, unless the debtor performs the repayment with the intent to prejudice other creditors in collusion with some creditors (see Supreme Court Decision 2005Da62167, Jun. 15, 2006).

Meanwhile, with respect to a creditor seeking revocation of a fraudulent act’s assertion that the act of payment of money to the beneficiary is a donation to the beneficiary of the debtor, if the beneficiary asserts that the act of payment of money to the beneficiary of the debtor constitutes denial of the creditor’s assertion, and thus, in order to recognize the act of payment of money as a fraudulent act, it should be proved that the act of payment of money constitutes a donation, and the burden of proof for such act is on the part of claiming a fraudulent act (see Supreme Court Decision 2005Da28686, May 31, 2007). In this case, in order to constitute a donation, the act of payment of money objectively belongs to the debtor and the beneficiary, and thus, it should be interpreted that there is a mutual agreement between the parties as to the donation and the grant of money free of charge (see Supreme Court Decision 2012Da30861, Jul. 26, 2012). Moreover, it cannot be readily concluded that the act of payment of money is a substantial decrease in the total property of the remitter (see Supreme Court Decision 20127Da2164.

B) The amount received by the Defendant from KimA

First of all, we examine whether the amount the Defendant received from KimA is KRW 217,00,000 (of KRW 347,000,000, not KRW 347,000, not KRW 347,000, not KRW 347,000) or not.

앞서 본 기초사실과 갑 제10호증 및 을 제9호증의 각 기재에 의하면, 김DD에 대한 조세범처벌법위반 피의사건의 2016. 1. 15.자 피의자신문에서 김DD은 김AA이 배당금으로 받은 돈 중 217,000,000원을 피고에게 갚았다고 진술한 사실, 김AA에 대한 조세범처벌법위반 피의사건의 2016. 1. 12.자 피의자신문에서 김AA은 배당금이 입금된 주식회사 XXXX 명의의 계좌에서 2014. 12. 26. 피고 명의의 계좌로 6,000만 원을 이체한 것은 약 2억 원 정도 대여한 돈의 일부를 변제한 것이라는 취지로 진술한 사실 및 피고가 이 사건 제4, 5부동산에 대하여 각 2,000만 원을 임대차보증금으로 하는 임대계약을 체결한 사실이 인정되기는 한다.

However, in light of the following circumstances, which are acknowledged based on the above facts, the evidence mentioned above, and Eul’s evidence No. 11 together with the purport of the entire pleadings, it is not recognized as KRW 347,00,000, as seen in the part cited by KimA as seen above, but rather as KRW 217,00,000, which is smaller than that.

⑴ 김DD에 대한 조세범처벌법위반 피의사건의 2016. 1. 15.자 피의자신문에서 김DD은 김AA이 과세 부동산에 관한 배당금을 피고에게 지급하였다는 취지로 진술하였고, 김AA에 대한 조세범처벌법위반 피의사건의 2016. 1. 12.자 피의자신문에서 김AA은 배당금 중 일부를 피고에게 지급한 것이 맞다고 진술하였다. 또한 실제 배당금이 입금되었던 주식회사 XXXX 명의의 우체국 계좌에서 2014. 12. 26. 피고의 계좌로 6,000만 원이 송금된 사실도 위와 같은 진술내용을 뒷받침한다. 반면, 피고가 이 사건 제4, 5, 6부동산을 매수할 당시 김AA이 지급한 돈을 제외한 여유자금이 있었다고 볼 만한 자료가 없다.

D. On September 15, 2015, on the date of acquiring the instant 6 real estate, the Defendant: (a) leased the instant 6 real estate to KimD on September 15, 2015; (b) received KRW 90 million from KimD as the deposit money; and (c) paid it as the purchase price; (d) accordingly, the Defendant asserts that the deposit amount of KRW 90 million out of the deposit amount of the 6 real estate purchase was not received from KimA; (b) however, the lease deposit amount was written out between the Defendant and KimD (Evidence No. 10) and the Defendant did not submit any evidence to prove that the Defendant was actually paid KRW 90 million from KimD; and (c) on the other hand, at the interrogation of the suspect on January 15, 2016, the Defendant received KRW 90,000 from KimD’s house (which constitutes the instant 6 real estate lease agreement). In full view of the fact that the Plaintiff’s claim for the above 90,000,00,000, etc.

On a different premise, the first defendant's argument is without merit without further review.

Article 22(1) of the Civil Act provides that “The term “the term “the term “the term “the term “the term “the term “the term” means “the term “the term “the term” as “the term “the term “the term” under Article 15(1) of the Civil Act)” means “the term “the term “the term “the term” under Article 15(1) of the Civil Act” under the term “the term “the term “the term “the term” under Article 15(1) of the Civil Act” under the term “the term “the term “the term “the term” under Article 15(1) of the Civil Act” under the term “the term “the term “the term “the term” under Article 10(1) of the Civil Act” under the term “the term “the term “the term “the term” under Article 10(1) of the Civil Act” under the term “the term “the term “the term

C) Whether the loan was received as a repayment

Then, we examine whether the defendant's 347,00,000 won that the defendant received from KimA can be seen as having received the money that the defendant previously lent to KimA.

According to the statements in Eul evidence Nos. 5 and 17, it is recognized that the defendant transferred the amount equivalent to KRW 203,50,000 in total to each account in the name of Kim A and KimD and DDD operated by Kim DD for nine times from April 22, 2010 to June 3, 2013 [applicable only before Kim Jong-A receives dividends on real estate (on December 18, 2014)]. However, in contrast to the above time, it is recognized that the defendant received KRW 150,050,00 from Kim A, Kim DD and DD for 14 times more than 14 times, and if the defendant had expressed an intention to receive money exceeding KRW 30,000,000,000, it is difficult to find that the defendant had never received money from each of the above loans, interest rate, and portion of the repayment period, but there is no reason to view that the defendant could have received money from the defendant as a usual.

2) As to the bona fide defense

A) In a lawsuit seeking revocation of a fraudulent act, the fact that the beneficiary was unaware of the fact that he/she was a fraudulent act has the burden of proof on the beneficiary himself/herself, and when recognizing that the beneficiary was bona fide at the time of the fraudulent act, objective and acceptable evidence, etc. should be supported. It cannot be readily concluded that the beneficiary was bona fide at the time of the fraudulent act merely based on the unilateral statement of the debtor or a statement that is merely a third party’s prosecution (see, e.g., Supreme Court Decisions 2006Da5710, Apr. 14, 2006; 2009Da60466, Jul. 22, 2010).

B) The Defendant did not notify the Defendant of the progress of the auction on the instant 4, 5, and 6 real estate, and the Defendant, on January 2016, submitted a witness statement (Evidence No. 4) to the KimA (Evidence No. 4), stating that the Defendant was aware of the fact that the transfer income tax was imposed on the instant 4, 5, and 6 real estate, and that he was investigated as an accomplice in violation of the Punishment of Tax Evaders Act, and that he was aware of the progress of auction on the said real estate. In the interrogation of the Defendant on January 12, 2016 of the case under violation of the Punishment of Tax Evaders Act against the Defendant, the Defendant stated that the amount the KimA issued was part of the dividends on the instant 4, 5, and 6 real estate at the time of investigating the National Tax Service (Evidence No. 10).

However, in light of the fact that KimA had aggravated financial status due to loans, etc. from around 2006 and that KimA had been put in by the defendant, the circumstances alleged by the defendant alone are insufficient to reverse the presumption that the defendant is a malicious beneficiary, and there is no other evidence to recognize the defendant as a bona fide beneficiary. Therefore, the defendant's defense is without merit.

3) Sub-determination

Therefore, the defendant's argument is without merit.

3. Conclusion

Therefore, the judgment of the court of first instance which fully accepted the Plaintiff’s claim is justifiable. Therefore, the Defendant’s appeal is dismissed as it is without merit. It is so decided as per Disposition.