It is difficult to recognize each gift contract as a fraudulent act by deeming it as one act.

The other party to each gift contract of this case cannot be deemed to have been linked to each other in the course of a series of legal processing to achieve the same purpose due to the circumstances that are not identical to each other of the gift contracts of this case, and thus, whether each contract causes insolvency or not.

Article 406 of the Civil Act

Gwangju District Court's Netcheon-2013-Gohap-12052 (06.04)

Korea

Maa and 2 others

oly 2015.14

2015.06.04

1. The gift agreement concluded on September 1, 2010 between Defendant Newa and Nonparty o shall be revoked within the limit of KRW 48,675,935.

2. Defendant Shin-a shall pay to the Plaintiff 48,675,935 won and 5% interest per annum from the day following the final judgment of this case to the day of complete payment.

3. The plaintiff's claims against the defendant Shinb and Shin C are dismissed.

4. Of the costs of lawsuit, the part arising between the Plaintiff and Defendant Newa is borne by Defendant Newa, and the part arising between the Plaintiff, Defendant Newbb and Newc is borne by the Plaintiff.

To the extent of KRW 97,351,870, which was concluded on August 26, 2010 between the order Nos. 1 and (2) of this case and the order Nos. 1 and Doo, the donation contract between Defendant New C and Doo on August 25, 2010 shall be paid 48,675,935 won and each of the above amounts with 5% interest per annum from the day following the conclusion of the judgment of this case to the day of full payment.

1. Basic facts

A. Doo is the mother of the Defendants, which is the South-North branch of land.

B. After selling real estate owned by Doo to Doo on June 29, 2010, Doo completed the registration of ownership transfer after selling it to Doo on June 29, 2010. Accordingly, Doo paid on October 31, 2010, the capital gains tax to be paid on October 31, 2010 was KRW 118,326,590.

C. On August 25, 2010, Roo concluded a contract to donate KRW 100 million to Defendant New Ba (hereinafter “first donation contract”) and paid KRW 100 million, and entered into a contract to donate KRW 200 million to Defendant New Ba on August 26, 2010 (hereinafter “second donation contract”) and paid KRW 200 million, and entered into a contract to donate KRW 100 million to Defendant New Ka on September 1, 2010 (hereinafter “third donation contract”) and paid KRW 100 million.

2. Whether it is a fraudulent act;

(a) Claims for preservation;

The date of establishing the liability to pay capital gains tax of this case was accrued after the conclusion of each gift contract of this case, but the real estate of this case was transferred, and thus the taxation requirements of the capital gains tax of this case have already been met, and thus the legal relationship, which forms the basis of establishing the claim for capital gains tax, was formed. Since the small income tax of this case was actually established, the capital gains tax of this case may become the preserved claim.

B. Method of determining fraudulent act

1) The plaintiff's assertion

Each gift contract of this case shall be deemed as a single act and shall be judged as to whether it is harmful or not.

2) Determination

A) In a case where a debtor has committed a series of property disposal acts in succession, barring special circumstances, barring any special circumstance to regard such acts as a single act, it should not be determined as to whether a series of such acts is harmful as a whole, but should be determined as to whether each act causes insolvency. Unless there exists any special relationship, such as that each act was conducted in connection with a series of legal disposal processes to achieve the same purpose, the scope should be expanded without permission, and it should not be evaluated as a single act.

(b)In light of the respective descriptions and arguments set forth in Category A(2) above, the following circumstances are revealed:

① The Doo and the Defendants who are parties to each gift contract of this case are mother and child relations.

② The source of each of the instant donations is the purchase price of the instant real estate.

③ Each gift contract of this case was concluded during the short period of eight days from August 25, 2010 to September 1, 2010.

C) However, in light of the following circumstances, it is insufficient to recognize that each of the instant gift contracts was made in connection with each of the instant gift contracts in a series of legal process to achieve the same purpose solely based on the following circumstances, which can be known by the purport of the written evidence No. 2 and the entire pleadings.

① There is no circumstance to determine that the other party to each gift contract of this case is substantially identical, such as that the Defendants are not identical to the Defendants, and that the Defendants agree to pay either of the respective donations of this case to the Defendant.

② There is no circumstance that each of the instant gift contracts was made in connection with each of the instant contracts, such as that, if no gift was made against either of the Defendants, the gift would have not been made to the other Defendants.

③ Each of the instant gift contracts was concluded as a separate contract, and the date of each contract differs, and the gift tax was calculated and paid individually.

(c) Fraudulent act;

(i)whether the first donation contract has been piracy;

The active property of Doo is KRW 445,089,820 at the time of the first donation contract, and the small property of Doo at the time of the first donation contract is KRW 118,326,590 of the transfer income tax of this case.

Even if Boo donated KRW 100,00,000,000 under the gift contract No. 1 with the status of 445,089,820 won as active property and 118,326,590 as passive property, the remaining positive property of KRW 345,089,820 as positive property exceeds the debt exceeding KRW 118,326,590 as positive property, and there is no evidence to find otherwise that the first gift contract was in excess of the debt to Boo under the gift contract. Thus, the first gift contract cannot be deemed a fraudulent act.

(ii)whether the contract of gift 2 has been harming;

The active property of Doo is KRW 345,089,820 at the time of the second donation contract, and the small property of Doo at the time of the second donation contract is KRW 118,326,590 of the transfer income tax of this case.

Even if Mao donated KRW 200,000,000 to Defendant New C in accordance with the gift contract of Article 2 with the status of 345,089,820 won as active property, and property 118,326,590 as passive property, the remainder of KRW 145,089,820 as active property exceeds 118,326,590 as negative property, and there is no evidence to prove otherwise that Mao had a state of exceeding Mao’s obligation under the gift contract of Article 2. Thus, the second gift contract of Article 2 cannot be deemed a fraudulent act.

(iii)whether the third donation contract has become void or not;

The active property of Doo is KRW 145,089,820 at the time of the third donation contract, and the small property of Doo at the time of the third donation contract is KRW 118,326,590 of the transfer income tax of this case.

If Mao donates 145,089,820 won as active property, and 118,326,590 won as active property, pursuant to the gift contract of Article 3, to Defendant Maa with the status of 100,000,000 won as active property, the remaining positive property of KRW 45,089,820 exceeds 118,326,590 as active property, and exceeds 73,236,70 won (118,326,590-4,089,820 won). Therefore, the above part of KRW 73,236,70 in the gift contract of Article 3 constitutes a fraudulent act.

(d) Intention of Mao to commit suicide;

In full view of the following circumstances revealed by the purport of Gap evidence Nos. 2 and 3 and the entire pleadings, it is reasonable to view that Doo knew that the transfer of real estate of this case would be imposed upon transfer income tax and that the transfer income tax cannot be paid completely due to the third donation contract.

E. Sub-decision

The contract of gift Nos. 1 and 2 does not constitute a fraudulent act. Since the portion of KRW 73,236,770 among the third donation contracts constitutes a fraudulent act, the third donation contract shall be revoked within the limit of KRW 48,675,935, which the Plaintiff seeks, and Defendant New Ga shall be liable to pay to the Plaintiff damages for delay at the rate of KRW 5% per annum under the Civil Act from the day following the date the judgment of this case becomes final to the day of full payment.