Whether the person liable for secondary tax payment is a fraudulent act at the time of transfer of the sole real estate

After sending a notice of expected tax investigation, the act of transferring real estate by the person liable for secondary tax payment prior to the designation of the person liable for secondary tax payment constitutes a fraudulent act.

Article 406 of the Civil Code / [Right of Revocation]

1. Of the judgments of the court of first instance, the parts relating to the sequence 2-C and No. 3. Each real estate mentioned above shall be changed as follows:

A. (1) The sales contract concluded on April 14, 2005 with respect to the stated real property is within the limit of KRW 29,558,470, as set out in the attached list 2-C between Defendant Jeon-○ and Yu-○.

(2) The sales contract concluded on April 14, 2005 with respect to the real estate set forth in [Attachment 3] No. 16,493,480 shall be revoked within the limit of KRW 16,49,480.

B. Defendant Jeon-○ shall pay to the Plaintiff 46,051,950 won and 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

C. The plaintiff's remaining claims against the defendant Jeon Soo-○ are dismissed.

2. Defendant Kim○-○’s appeal is dismissed.

3. One-third of the total litigation costs between the Plaintiff and Defendant Jeon Soo-○○○, the remainder shall be borne by the Plaintiff, and the remainder shall be borne by the same Defendant, and the costs of appeal between Defendant Kim Jong-○○.

4. The above paragraph 1-2 (b) may be provisionally executed.

1. Purport of claim

A. As to the real estate stated in [Attachment 1] No. 1:

(1) On June 10, 2005, the sales contract between Defendant Kim ○ and Jeon ○○ was revoked.

(2) Defendant Kim○-○ shall implement the procedure for registration of cancellation of ownership transfer registration, which was completed on June 14, 2005 by ○○ District Court ○○○○○ registry office, and completed on June 14, 2005.

B. As to the real estate stated in the [Attachment 2] No. 2:

(1) On April 14, 2005, the sales contract between Defendant Jeon-○ and Jeon-○, and Yu-○ was revoked.

(2) On May 20, 2005, Defendant ○○○ and U.S. ○○ District Court’s ○○○○○○○○○○○ registry office, and Defendant ○○○○○○○○○, followed the procedure for the cancellation of ownership transfer registration.

C. As to the real estate stated in [Attachment 2] No. 2

(1) On April 14, 2005, the sales contract between Defendant Jeon-○ and Go-○○ was revoked.

(2) On May 20, 2005, Defendant ○○○○ District Court’s ○○○ registry office, and Defendant ○○○○ completed the procedure for registration cancellation of ownership transfer registration.

(d) As to the real estate stated in [Attachment 2] No. 2:

(1) On April 14, 2005, the sales contract between Defendant Jeon-○ and Jeon-○, and Jeon-○, was revoked.

(2) On May 20, 2005, Defendant ○○○ and U.S. ○○ District Court’s ○○○○○○○○○○○ registry office, and Defendant ○○○○○○○○○, followed the procedure for the cancellation of ownership transfer registration.

E. As to the real estate stated in [Attachment 2] No. 2:

(1) On April 14, 2005, the sales contract between Defendant Jeon-○ and Go-○○○ was revoked.

(2) On May 20, 2005, Defendant ○○○○ District Court’s ○○○ registry office, and Defendant ○○○○ completed the procedure for registration cancellation of ownership transfer registration.

F. As to the real estate listed in [Attachment 3] No. 3:

(1) On April 14, 2005, the sales contract between Defendant Jeon-○ and Go-○○○ was revoked.

(2) On May 20, 2005, Defendant ○○○○ District Court’s ○○○ registry office, and Defendant ○○○○ completed the procedure for registration cancellation of ownership transfer registration.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Facts of recognition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in Gap evidence of 1 to 6 and Eul evidence of 3 (including paper numbers).

A. On May 6, 2005, the head of ○○ Tax Office, the Plaintiff-affiliated tax office, issued a notice of expected tax investigation to the ○○ Industry (hereinafter “○○ Industry”) and conducted a tax investigation from June 7 to June 17, 2004 of the same year, confirmed that the ○ Industry was omitted by unfairly deducting the constructive purchase tax amount of the value-added tax for the second term of 2004 or by filing a return on reducing Class A earned income from the disbursement of labor expenses (hereinafter “ Class A”), and on July 31, 2005, determined and notified the 30,394,730, total of KRW 42,818,580, total of KRW 7329,300, total of KRW 730, total of KRW 42,818,580, total of KRW 730,000 for the payment period.

B. However, on August 30, 2005, ○○ Industries closed its business after having not paid the above tax evasion, and on August 30, 2005, on August 30, 2005, ○○○○○○○○ (director of ○○ Industries), which was an investor of ○○ Industries, (including additional dues), notified 11,321,450 won, 12,624,550 won, 11,361,730 won, 730 won to ○○○○ (22.5%) to the former ○○○ (28.57%) at the same time in accordance with the respective equity shares ratio (hereinafter referred to as “former ○○○, ○○, and ○○○”) and notified ○○ (2.5%) to the debtor by September 10, 2005 (hereinafter referred to as “the debtor”).

C. As to the real estate listed on No. 1 in the annexed list No. 1, the debtor had completed the registration of ownership transfer on June 14, 2005 by the ○○ District Court’s ○○○○○○○ registry office as the 7863 on June 14, 2005, and (2) as to each real estate listed on No. 2. 2. and 3 of the annexed list, the debtor completed the registration of ownership transfer on April 14, 2005 by the ○○ District Court’s ○○○○ registry office as the ○○○○ registry office as the ○○○○ registry office as the ○○○○○ registry office as of April 14, 2005, respectively.

D. Nonparty ○○ is between Defendant ○○ and Defendant ○○○, the representative director of the ○ industry, the debtor’s head of the ○○○○○○, the debtor’s head of the ○○○○○, the former head of the ○○○○, the debtor’s head of the ○○○○, the former head of the ○○○○○, and the Defendant Kim○○○

E. At the time when the debtor disposes of each of the real estate listed in the separate sheet on April 14, 2005 and June 10, 2005 due to each sale and purchase as above, each of the real estate listed in the separate sheet was the only property of the debtor (in addition to the real estate in this case, all of the debtor ○○ and So-called ○○○ was jointly owned by the debtor ○○ and So-called ○○○○○○, ○○, ○○, ○○, a ○○○, and ○○, but this was also traded to the defendant ○○ on

F. The former ○○○○○, who is an actual manager of the ○○ industry, (referring to the former ○○○○, Defendant Jeon○○, and electric ○○○○) was the bad credit standing on February 4, 2004, and the land and buildings on ○○○○○○○○○, which are the business establishment of the ○○○○ industry, were sold to ○○○○, based on a voluntary auction procedure conducted on May 23, 2005 with ○○ District Court ○○○○○ Branch 2003, around 2003. Thereafter, the ○○ industry was a credit guarantee accident due to the nonperformance of loan obligations on June 29, 2005.

G. After the registration of ownership transfer has been made in the name of Defendant Jeon○○○, the registration of establishment of a neighboring establishment in the name of ○○ Saemaul Depository on July 18, 2005 was completed on July 14, 2005 on the real estate stated in [Attachment 3]. The registration of establishment of a neighboring establishment in the name of ○○ Saemaul Depository was completed on July 14, 2005.

H. At the time of July 10, 2006, the market price of the real estate stated in [Attachment 2-C] Nos. 50,797,600, and the market price of the real estate stated in [Attachment 3] Nos. 58,248,50 was equivalent to KRW 58,248,50.

2. The assertion and judgment

A. Summary of the plaintiff's assertion

Since each sales contract for the instant real estate between the debtor and the defendants is a fraudulent act that reduces the debtor's responsible property, it shall be revoked. The defendants shall implement the procedure for cancellation of ownership transfer registration made in their name.

B. Summary of the defendants' assertion

(1) This safety defense

Since the effect of revocation of a fraudulent act is effective for all creditors, any creditor may not file a lawsuit for revocation of a fraudulent act with the same content as other creditors after a creditor has won a favorable judgment after filing a lawsuit for revocation of a fraudulent act.

(2) On the other hand, the time when the sales contract of this case was concluded on April 14, 2005 and June 10, 2005, the time when the Plaintiff had a tax claim against the debtor, and thus, the Plaintiff’s claim is not a preserved bond protected as the obligee’s obligee’s obligee’s obligee’s obligee’s right.

(3) The debtor did not have been involved in the operation of the ○ industry and did not know about the plaintiff's national tax claim, and since the sales contract of this case was even no longer known to the plaintiff, the debtor did not have an intention to harm, and further, the sales contract of this case does not constitute fraudulent act.

C. Determination

(1) Determination on this safety defense

Each obligee who satisfies the requirements for obligee’s right of revocation is entitled to seek revocation of the obligor’s disposal of his/her own right and restitution thereof. As such, where each obligee has filed a lawsuit for revocation of and restitution to the original state simultaneously or at this time, such lawsuit does not constitute a double lawsuit (see Supreme Court Decision 2003Da19558, Jul. 11, 2003). In addition, in cases where a lawsuit for revocation of a fraudulent act instituted by different obligees against the same Defendant is pending without examination as to the same fraudulent act, either of the creditors is finally and conclusively determined by a favorable judgment in favor of the whole or part of the fraudulent act and the recovery of the property or value thereof has been completed, the other obligee is deemed to have no benefit to maintain the lawsuit within the extent that the part which was recognized as a fraudulent act in his/her lawsuit and revoked overlaps with the value of the property or value that has been recovered by the final and conclusive judgment, or where one of the overlapping fraudulent act revocation proceedings becomes final and conclusive, each obligee’s benefit still exists until the property or value has been recovered (see Supreme Court Decision 2003614Da.

In full view of the purport of each of the statements and arguments in Eul evidence Nos. 3 (including additional numbers) and the whole purport of each of the above statements and arguments, on March 22, 2006, ○○ Fund, which is another creditor of the debtor of this case, filed a claim against the defendant and the debtor for the revocation of fraudulent act including the sales contract of this case, with 2006 court joint ○○○○, which was awarded a favorable judgment on April 5, 2007, and the judgment became final and conclusive on March 20, 208. Meanwhile, on September 27, 2006, the plaintiff filed the lawsuit of this case on September 12, 2006, and the defendants did not perform the registration of ownership transfer and the obligation to cancel money performance by the court until April 17, 2008.

According to the above facts and legal principles, so long as the duty of restitution based on the finalized judgment has not been performed, the plaintiff's fraudulent act revocation lawsuit of this case cannot be deemed as having no interest in the lawsuit, and therefore the defendants' defense of safety is without merit.

(2) Determination as to the eligibility of the Defendant’s exclusive right claim

In principle, it is required that a claim that can be protected by the obligee’s right of revocation has arisen prior to the commission of an act that can be viewed as a fraudulent act. However, at the time of the fraudulent act, there is a high probability that there has already been a legal relationship that serves as the basis of the establishment of the claim, and that the claim should be established in the near future. In the near future, where the probability of the claim has been realized and the claim has been established in the near future, the claim may also become a prior claim for the obligee’s right of revocation (see, e.g., Supreme Court Decision 2006Da39560, Oct.

The point at which the Plaintiff entered into a sales contract on each of the instant real estate between the Defendants and the Defendants is the second taxpayer. However, under Article 21(1)1-7 of the Framework Act on National Taxes, the income tax (the tax imposed on Class A among the wage and salary income under the Income Tax Act) and value-added tax are established at the time when the taxable period expires. The Plaintiff’s taxation claims on the Defendants were national tax for the second half of 2004 prior to the sales contract, and there was an omission in the return of ○○ industry, which is the cause of tax decision on the obligor, before the above sales contract, and the time when the Defendants completed the registration of ownership transfer of the instant real estate after May 6, 2005, it was highly probable that the Defendants were liable for tax payment at the time when the said 200-year tax claim was first entered in the list of the Defendants’ respective tax claims and the above 20-year tax claim owners, in light of the fact that each of the above 20-year tax claims were expected to have been paid by the Defendants.

(3) Determination on the establishment of fraudulent act

Unless there exist any special circumstances, an obligor’s act of selling real estate, which is one of his/her sole property, and changing it into money which is easy for him/her to consume is presumed to have the obligor’s intent of deception by committing a fraudulent act against the obligee (see, e.g., Supreme Court Decision 2007Da83892, Apr. 24

According to the above facts, each of the instant real estate sold by the debtor to the defendants was insolvent by the debtor as the sole property of the debtor's own property and the debtor completed the registration of transfer of ownership over each of the instant real estate in the future of the defendants. Thus, barring any special circumstance, the instant sales contract constitutes a fraudulent act, and the debtor's intent to understand the plaintiff is recognized, and each of the items in Eul No. 2 (including the serial number) is insufficient to recognize the debtor's good faith, and there is no other evidence supporting the defendants' assertion, and therefore, the defendants' assertion is without merit.

(4) Method and scope of restitution

(A) Where a juristic act on real estate mentioned above constitutes a fraudulent act with respect to each real estate mentioned above, [Attachment 1] and 2-A. B. D. In principle, the cancellation of the fraudulent act and the order to restore the real estate itself, such as cancellation of the ownership transfer registration. As such, the contract of sale and purchase concluded on June 10, 2005 with respect to the real estate mentioned above above No. 1 in [Attachment 2] between Defendant Kim○○ and Jeon○○○○○, which was entered in [Attachment 1], has an obligation to complete the procedure for cancellation of ownership transfer registration completed on June 14, 2005 with the former ○○○○ District Court and ○○○○○○○○, and the obligor, which completed the procedure for cancellation of ownership transfer registration on each of the real estate mentioned above: (a) the transfer of ownership transfer registration completed on April 14, 2005 by the 200 registry office; and (b) the transfer of ownership registration procedure on each of the real estate mentioned above is cancelled to the former ○○, ○○○○, and 205.5.

(B) Attached Table 2-C. and Nos. 3. Regarding each real estate described above

In case where a juristic act concerning real estate constitutes a fraudulent act, in principle, an order to recover the real estate itself shall be given as seen earlier: Provided, That in case where it is impossible or considerably difficult to return the original object, an order to restore it as performance of the duty to restore it, and in case of compensation for value, an order shall be issued for compensation within the limit of the establishment of the fraudulent act as a joint security of the general creditors. As such, in case where an order is issued for compensation for value on the ground that a third party in good faith acquired a mortgage after the fraudulent act, the amount of the claim secured by the mortgage acquired by the third party shall be ordered as joint security of the general creditors at the time of the fraudulent act, and it shall not be deducted from the value thereof (see, e.g., Supreme Court Decision 2003Da40286, Dec. 12, 2003).

Meanwhile, when a creditor exercises the right of revocation, he/she cannot exercise the right of revocation in excess of his/her own claim amount in principle, and at this time, interest or delay damages shall be included in the claim amount of the cancelled creditor from the time of the fraudulent act to the time of the closing of argument (see, e.g., Supreme Court Decision 2006Da66753, Jun. 29, 2007). Since the obligation to restore the value of an object arises only when the judgment becomes final and conclusive upon the revocation of the fraudulent act, the obligee’s claim for compensation with the claim for the equivalent value along with the claim for revocation of the fraudulent act, and where the court orders the payment of compensation at the same time with the revocation of the fraudulent act, the interest rate under the main sentence of Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings shall not apply (see, e.g., Supreme Court Decision 2004Da45875, Nov. 11, 2004).

In light of the above facts, it is reasonable to view that the obligation to restore the original property by cancelling the registration of ownership transfer of the above real estate was in a state of impossibility of legal performance, since the registration of ownership transfer was completed with respect to each real estate mentioned on the No. 2-C. and No. 3 of the attached list No. 2-3 and No. 3, and the registration was completed by the ○○ Saemaul Depository, a bona fide third party, and the ○○○○○○○○○○○○ was in a state of impossibility of performing the duty to restore the original property. As such, the Defendant

Furthermore, with regard to the scope of compensation, until April 17, 2008, 2008, the date of the closing of argument in this case, the tax claim amount of 29,558,470 won (per one-half share ownership) held by the Plaintiff against the obligor, the former owner of the real estate, ○○○, the former owner of the real estate, was 29,558,470 won (per one-half share ownership) (per 14,714,940 won + 14,843,530 won (per 14,843,530 won, principal tax, additional charges and increased additional charges are as indicated in the separate calculation sheet). 3. The amount of the claim against the obligor, the former owner of the real estate, ○○○○, the former owner of the real estate, was 16,493,480 won (attached Form 1). The above amount of the claim amount of the above real estate, the total amount of the claim amount of the Plaintiff’s 1450,5050 won,500 won.

3. Conclusion

Therefore, the plaintiff's claim against the defendant Kim ○ is justified, and the judgment of the court of first instance is just, so the appeal by the defendant Kim ○○ is dismissed as it is without merit. The plaintiff's claim against the defendant Kim ○○○ as to each real estate stated in the [Attachment 2-C. and No. 3] of the [Attachment 2-C. and No. 3] of the plaintiff's claim against the defendant Jeon ○○○○, shall be accepted within the above recognized scope, and the remaining claim shall be dismissed as without merit. Since the judgment of the court of first instance is partially unfair, the judgment of the court