In the case of a debtor's intent to conclude a trust contract, it cannot be deemed that this trust contract constitutes a fraudulent act.

The delinquent taxpayer tried to continue the sales business by financing funds through the trust contract, securing the construction price claims of the contractor, and continuing the apartment sales business can be seen as the best method to recover the debt repayment ability of the delinquent taxpayer and reduce the creditor's damage.

Article 30 of the National Tax Collection Act

2012 Gohap 536371 Revocation of fraudulent act

Korea

AAA, Inc.

August 12, 2013

September 5, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The trust contract concluded on November 23, 2009 between the defendant and BB Co., Ltd. with respect to each real estate listed in the separate sheet shall be revoked.

The defendant will implement the procedure for registration of cancellation of each transfer of ownership, which was completed as No. 177015 on November 30, 2009, with respect to each real estate listed in the Schedule BB Co., Ltd., and as to each real estate listed in the Schedule BB Co., Ltd., the Ji Government District Court, the High Court, the Yangyang Branch, the Yangyang Branch, and the Yangyang Branch, the registration office, which was completed as No. 177015 on November 30, 2009.

1. Basic facts

A. Status of the parties

1) The Plaintiff has a total of the OOO claims against BB Co., Ltd. (hereinafter “BB”).

2) BB is a sales executor of the CCC Co., Ltd. and D Co., Ltd. (hereinafter referred to as the "Co., Ltd. of this case") in OOO-dong 111-13 OO-dong 10 OO-dong 1, EE andD apartment (hereinafter referred to as "the apartment of this case").

(b) Lending business funds;

1) BB borrowed business funds from FF Capital Capital, GG card, stock company, and HH Capital Capital within the limit of OOO on December 21, 2006 for the instant apartment sale business. The instant construction contractor agreed to accept the above principal and interest obligation upon loss of due interest during the period. In order to secure the above principal and interest of the loan, the instant apartment construction contractor agreed to trust real estate management and disposal of the instant apartment after completion of the instant apartment, and the financial institutions agreed to be the first pledge right holder.

2) On June 25, 2008, BB entered into a new agreement with III Co., Ltd. to receive a loan within the limit of KRW OO in order to repay the loan obligations upon the maturity of the above loan agreement. On March 26, 2009, at the time of the expiration of the above loan agreement with III Co., Ltd., the third Co., Ltd. entered into a loan and business agreement with JJ Bank (hereinafter referred to as the “JJ Bank”) to repay the existing loan to III Co., Ltd. and to raise additional business funds for the apartment-sale business of this case (hereinafter referred to as the “the loan and business agreement of this case”), and the Corporation received a loan from J Bank within the limit of KRW OOB from J bank, and the Corporation in this case entered into an agreement to assume obligations with respect to the above loan and loan obligations.

3) According to the instant loan and business agreement, BB entered into a real estate trust agreement with a real estate trust company designated by the J bank to secure the claim for the principal and interest of the J bank in order to obtain a loan from the J bank immediately after completion of the instant apartment complex, BB entered into a trust agreement with the real estate trust company, and entered into a trust agreement with the instant construction company as the first priority beneficiary in order to secure the unpaid construction cost (Article 8(2)).

C. Conclusion of construction contract;

1) On June 14, 2007 and July 10, 2007, BB entered into a contract for construction work or construction work contract with the instant contractor to construct the instant apartment in the OOO (including value-added tax). On July 10, 2008, BB entered into an additional contract for construction work with the instant contractor to expand the balcony and perform the construction work of the instant apartment in the OOO (including value-added tax).

2) According to each of the above contracts, the instant construction works completed both the construction of the instant apartment and the balcony expansion construction works, etc., on October 7, 2009, but BB did not pay only the KRW OO of the total construction cost before the instant trust contract was concluded on November 23, 2009, and paid only the KRW OO of the total construction cost and the remainder of the construction cost incurred for delay.

(d) Conclusion of a trust deed;

Around November 23, 2009, BB entered into a real estate security trust agreement (A) and JB as to the apartment of this case 568 households and the real estate security trust agreement (B) with the Defendant and JB on November 23, 2009, and on November 30, 2009, with the Defendant, KB Bank, K Bank, K Bank, and K Bank as joint beneficiaries of the instant apartment of this case. On November 30, 2009, BB concluded a real estate security trust agreement (B) with respect to each of the instant apartment of this case, which is designated as joint beneficiaries of the instant apartment of this case as joint beneficiaries of the second priority (hereinafter referred to as the “trust agreement of this case”), and completed the registration of transfer by trust to the Defendant on each of the real estate listed in the attached list.

[Reasons for Recognition] The facts without dispute, Gap evidence 1-1-2, Gap evidence 2-1-4, Eul evidence 1-3 (including the number of pages), Eul evidence 8-9, and the purport of the whole pleadings

2. The plaintiff's assertion as to the cause of claim

The instant trust agreement recognizes that BB would prejudice the creditors of the return of the sale price for the Plaintiff and the buyer, etc., who are the tax claims, and is concluded for the sake of a certain obligees, and thus, intended to prejudice both the Plaintiff and the parties. The Plaintiff conducted an investigation of the default on BB around the beginning of September 2012 and conducted the investigation of tracking the arrears regarding BB and issued a copy of the relevant records of trial and issued a copy of the register of the real estate register. Accordingly, the instant trust agreement should be revoked as a fraudulent trust, and the Defendant is obliged to restore the original state.

3. Judgment on the main defense of this case

A. Main Safety Defenses

The Defendant seized trust earnings, etc. to be paid by the Defendant to BB in order to secure the tax claim on the grounds of the delinquency in tax payment by BB, and notified the Defendant of attachment on August 25, 201. On May 13, 2011, the Defendant seized trust earnings, etc. to be paid to BB by the Defendant. On October 7, 2011, the instant apartment was seized and completed the attachment registration, and thus, the instant lawsuit is asserted as unlawful as the limitation period of one year exceeds that of one year.

B. Determination

In the exercise of creditor's right of revocation, "the date when the creditor becomes aware of the ground for revocation" means the date when the creditor becomes aware of the requirements for creditor's right of revocation, that is, the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act with the knowledge that he would prejudice the creditor. Thus, it is not sufficient that the debtor merely knows that he/she conducted a disposal act of the property, and that such a juristic act constitutes an act detrimental to the creditor. In other words, it is required to know the fact that the legal act was not sufficient to secure the joint security of the claim, or that the joint security already in the short situation is insufficient, making it impossible to fully satisfy the claim, and that the debtor had an intent to harm (see Supreme Court Decision 2003Da19435 delivered on July 11, 2003).

According to the statements in Eul evidence 4-1, 2, and Eul evidence 5 (the same as Eul evidence 1-1, 2, and 3), each of the above seizure facts is acknowledged. It can be seen that the head of the regional tax office knew that the trust contract of this case between Eul and the defendant was made during the seizure process as above, but it is difficult to view that the plaintiff was aware that the trust contract of this case was fraudulent or intentional to BB at that time, and there is no other evidence to acknowledge the limitation period and the facts.

Therefore, the defendant's main defense is without merit.

4. Judgment on the merits

Considering the overall purport of the pleadings in each of the statements in Gap evidence 3-1 to 3, Eul evidence 4-3 to 8, the trust contract of this case recognizes the fact that the joint collateral against the creditors of BB was insufficient.

However, according to the evidence mentioned above, the trust agreement of this case was made by the act of performing the loan and the business agreement of this case, and the BB appears to have concluded the loan and the business agreement of this case in order to raise funds for the continuation of the apartment sale business of this case. ② If BBB failed to obtain the business funds from JJ bank, it was inevitable to suspend the apartment sale business of this case, and eventually, the apartment of this case is not completed, ③ if BB did not conclude the trust agreement of this case, it could cause damage to the buyers of the apartment of this case, such as selling the apartment of this case at will or seizing the apartment of this case by other creditors of BB, and ④ The construction company of this case can exercise the right of retention on the apartment of this case or demand the right of preferential payment by claiming the creation of mortgage under Article 666 of the Civil Act.

In full view of the above circumstances, BB sought to continue the instant apartment sales business by providing financing through the conclusion of the instant trust contract, securing the claim for construction cost of the instant construction company, and continuing the instant apartment sales business can be deemed to have concluded the instant trust contract in view of BB’s best method to recover the debt repayment and to reduce the creditor’s damage. Moreover, it seems that the instant trust contract was necessary to protect the buyer of the instant apartment and to implement the sales contract even in order to protect the buyer of the instant apartment.

Ultimately, the Plaintiff’s assertion is without merit, as BB had intention to know in entering into the instant trust contract, or it cannot be deemed that the instant trust contract constitutes a fraudulent act.

5. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.