in the near future, any donation made with knowledge that capital gains tax becomes final and conclusive shall constitute a fraudulent act

The legal relationship that forms the basis for establishing a claim was established, and it seems that it was known that the transfer income tax claim would have been settled in the near future because it was not paid by voluntary payment of transfer income tax, so the act of gift constituting a fraudulent act should be revoked by each gift contract and restored to the plaintiff.

201Chap 23623 Revocation of fraudulent act

Korea

Park XX et al.

May 10, 2012

May 31, 2012

1. (a) The contract of donation of KRW 000, which was concluded on January 11, 2008 between Defendant Park Jong-A and JeonB (560801-2000) shall be revoked.

B. Defendant Park Jong-A shall pay to the Plaintiff KRW 000 and 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

2. (a) The agreement on donation of KRW 000, which was concluded on September 8, 2008 between Defendant ACC and BB (560801-200) shall be revoked.

B. DefendantCC shall pay to the Plaintiff 00 won and 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

3. The plaintiff's remaining claims against the defendants are dismissed.

4. Of the costs of lawsuit, 2/3 is assessed against the Plaintiff, and the remainder is assessed against the Defendants.

The contract for the donation of KRW 000,00, which was concluded on November 28, 2007 between the order No. 1 and No. 1 and No. 2, and the contract for the donation of KRW 000,000, which was concluded on November 23, 2007 between Defendant LA and No. 2, shall be revoked. The plaintiff shall pay to the plaintiff the amount of KRW 00,000, and the amount of KRW 00,00,000 and each of the above amounts shall be paid at the rate of KRW 5% per annum from the day following the date this decision was rendered.

1. Basic facts

A. On November 1, 2007, 2007, the formerB sold an amount of 000 won for the price of the maximum of 69,969 square meters in Ansan-gu, Ansan-do (hereinafter “instant land”). On November 26, 2007, the formerB completed the registration of ownership transfer for the instant land due to the said sale in the name of the KimD in the future.

B. The formerB made a preliminary return and payment of KRW 000,000,000,000,000,000 for the transfer income tax due to the transfer of the instant land, and the formerB filed a revised return on March 20, 2009, but did not pay KRW 00,000,000,00,00,000, which was calculated accordingly. Accordingly, the head of Ansan Tax Office determined and notified the former B as KRW 00,000,00 for the transfer income tax for the year 2007, and notified the payment of the transfer income tax to the former B on September 8, 2009, and the transfer income tax was 00,000 (calculated: 00,00,000,000 + each additional tax due to the failure to make a return and the failure to pay, hereinafter referred to as the “transfer income tax of this case”).

C. As of November 30, 201, previousB is in arrears with the total of KRW 000 and additional 000 per capital gains tax.

D.B paid each of the post offices accounts (Account Number 10424-2-02-1000) in the name of DefendantCC (Account Number 10424-1000) on November 23, 2007 (hereinafter referred to as “the payment amount of November 23, 2007”) and KRW 000 on September 8, 2008 (hereinafter referred to as “the payment amount of September 8, 2008”).

"B" paid 00 won on Nov. 28, 2007 (hereinafter referred to as "amount paid as of Nov. 28, 2007") to the agricultural bank account in the name of the defendant LA, respectively, on Nov. 11, 2008 (hereinafter referred to as "amount paid as of Nov. 11, 2008; and hereinafter referred to as "each payment of this case" in the case of a joint name of each payment. [Grounds for recognition]; 【No dispute exists; evidence Nos. 2 through 5; evidence Nos. 1, B, and 9; and the purport of the entire pleadings;

2. Determination on Defendant Park Jong-A’s defense prior to the merits of the case

A. Defendant Park Jong-A’s assertion

On November 26, 2007, when the Plaintiff completed the registration of ownership transfer with respect to the instant XX Dong land, the Plaintiff ought to be deemed to have discovered the fact that the payment of each of the instant payments constitutes a fraudulent act or the grounds for its cancellation while investigating the financial status of the formerB in order to impose the transfer income tax following the transfer of the instant land in XX Dong land. As such, the instant lawsuit for revocation of the fraudulent act filed on November 25, 201, which was one year after the lapse of the said period, should be dismissed.

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 had committed a fraudulent act with the knowledge that the creditor would prejudice the creditor. Thus, it is required to know that the legal act is not sufficient simply by the fact that the debtor committed a disposal act of the property, that is, the act that the creditor would prejudice the creditor, that is, the act that the creditor would compromise with the joint security of the claim, that is, the lack of the joint security of the claim or the lack of the existing joint security, making it impossible to fully satisfy the

However, only the descriptions of Gap evidence Nos. 2, 5, Eul evidence Nos. 1, and Eul evidence Nos. 2 (including the provisional number) are insufficient to recognize that the plaintiff's act of paying each of the instant payments to the Defendants of the previousB prior to November 25, 2010, which was the day before the lapse of one year after counting from November 25, 201, which was the date of filing a lawsuit for revocation of the fraudulent act in this case, constitutes a fraudulent act, and that the former B knew that he had a intention to harm, and there is no other evidence to acknowledge it, the above assertion by the defendant Park Jong-A is without merit.

3. Judgment on the merits

(a)the existence of preserved claims;

In principle, a claim that can be protected by the obligee’s right of revocation should have arisen before an obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, at the time of the juristic act, there is a high probability that the legal relationship which is the basis of establishment of the claim has already been established, and that the claim is created in the near future in the near future, and where a claim has arisen due to the realization of the probability in the near future, the claim may also be the preserved

In this case, in the end of the month in which the amount serving as the tax base (the date of the transfer of assets) occurs, income tax on the transfer margin of health class and assets is abstractly established on the last day of the month in which the amount of money is the tax base. Thus, according to the above facts of recognition, the obligation to pay transfer income tax on the transfer margin of the land of this case to the Plaintiff of the former BB was established upon the lapse of November 30, 2007, which is the last day of the month in which the ownership of the land of this case is transferred to KimD ( November 30, 2007) and the legal relationship which is the basis of the establishment of the claim was established by abstractly established after the completion of November 30, 207, and the formerB made a revised return on March 20, 2009, but it was highly probable that the transfer income tax claim of this case against the Plaintiff was finalized on the basis of its legal relationship in the near future because it did not pay the transfer income tax calculated accordingly.

B. Whether the fraudulent act was established

(1) The parties' assertion

(A) The Plaintiff asserts that each of the instant payments was made by BB to the Defendants.

(B) As to this, Defendant Park Poe-A argued that the payment made on November 28, 2007 and the payment made on January 11, 2008 would be jointly purchased from the formerB and the instant land, and that on June 3, 2003, the payment made on KRW 1/2 of the aggregate of the sales price and all the expenses was made to the formerB, but on November 1, 2007, the formerB returned KRW 00,000, out of the remainder after the settlement of the cost after the disposal of the instant land, and that the payment made on November 23, 2007 would not be a donation, and that the above payment made on May 23, 2007 would not be made by the former B, and that the former B made on July 28, 2008, each of the donations made on 300,000 or less shares of the instant land to the former B and the former 30,008,000.

(2) Legal nature of each of the instant payments

(A) Money paid on November 23, 2007

A creditor who claims that a legal act, etc. of a debtor is a fraudulent act and seeks the revocation thereof, as well as the existence of the preserved claim and the debtor's legal act, and the fact that a debtor has caused insolvency due to a legal act, etc., and that the debtor has to specifically assert and prove the requirements for establishing a fraudulent act, such as the debtor's intent to deliberate on, and in the meantime, if the debtor donated his/her own property to another person with excess of his/her obligation, such act would constitute a fraudulent act, barring special circumstances. However, in cases where the debtor's joint security of other creditors is reduced due to the debtor's repayment according to his/her principal obligation to a specific creditor under excess of obligation, such repayment does not constitute a fraudulent act in principle unless the debtor, in collusion with some creditors, made a repayment with other creditors with intent to harm other creditors, and the creditor's claim that a fraudulent act is a donation to the beneficiary of the debtor's existing obligation, this constitutes a denial of the creditor's assertion, and thus, it constitutes an obligee's assertion that the above act constitutes a fraudulent act.

In the instant case, the fact that the NB paid KRW 00 on Nov. 23, 2007 to Defendant LCC is as seen earlier.

However, the following circumstances, i.e., BB purchased the instant land from e.g., EF and one other on April 9, 2003 from 1, 200, the intermediate payment of KRW 00 on May 2, 2003, and the remainder of KRW 00 upon receipt of documents necessary for the registration of transfer of ownership on June 4, 2003; the payment of KRW 100 on May 2, 2003 and the post office account (including serial numbers) with KRW 100 on May 2, 2003, the creditor bank account in the name of the DefendantCC and KRW 20 on May 2, 2003, the above intermediate payment of KRW 100 on the date of termination of the registration of transfer of ownership on the ground of the establishment of a mortgage between the Plaintiff and the former 200-2424-11-000 on May 2, 207.

Therefore, this part of the plaintiff's assertion is without merit.

(B) Money paid from November 28, 2007 and money paid from January 11, 2008

In addition to the above facts, the formerB paid KRW 00,00 on November 28, 2007 to Defendant LbA, and KRW 00,000 on January 11, 2008, the following circumstances are acknowledged by considering the overall purport of pleadings in the testimony of the former witness B, namely, Defendant LBA withdrawn KRW 00,000,000 in total from each account in the name of the former GG, his wife, and the remainder of KRW 00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,000.

(C) Money paid on September 8, 2008

In addition to the above facts, the formerB paid KRW 00,00 on September 8, 2008 to the DefendantCC, the following circumstances, i.e., the fact that the above OB sold KRW 1,3,6, Eul's 6, and Eul's 6 through 9 (including the branch numbers) to the former witnessB's testimony, taking into account the overall purport of the pleadings, i.e., this case's house lease deposit amount of KRW 00,00,000, which was owned by 1/2 shares to KimK on June 3, 2006; KRW 200,000,000,000,000,0000,000,0000,000,000 won, and KRW 20,000,000,000,000,000,000,000,000,00,00,00,00.

(3) Whether the fraudulent act was established

Since a fraudulent act refers to an act detrimental to the creditor by reducing active property, or deepening that the debtor has already been in excess of his/her obligation by increasing his/her negative property, it should be premised on the fact that such an act resulted in the above situation. The issue of excess of the debtor's obligation should be determined at the time of the fraudulent act.

(A) The payment made on November 28, 2007 of this case

In full view of the purport of the arguments in Gap evidence 2 through 6, Eul evidence 1, Eul evidence 2, and evidence 2, Eul evidence 2, and 7 (including paper numbers), the formerB sold the land of this case to KimD for 00 won, and received 00 won of the down payment on October 24, 2007, and 00 won of the remainder on November 26, 2007 from KimD, and 300 won of the intermediate payment for 20,000 won of the non-permanent mortgage 2,00 won of the non-permanent mortgage 30,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 30,000,000 won for 20,000 won for 30,000,000 won for 20,000 won for 3,000,00 won for each of the above land.

According to the above facts, as of November 28, 2007, the market price of the instant OB house is KRW 0 million at the time of donation made on November 28, 2007, and as of November 28, 2007, the transfer income tax claim against the Plaintiff’s transfer of the instant land is confirmed to be below KRW 000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000,00,00 won.

{채무자의 무자력 여부를 판단하기 위하여 그 적극재산을 산정함에 있어서는 다른 특별한 사정이 없는 한 실질적으로 재산적 가치가 없어 채권의 공동담보로서의 역할을 할 수 없는 재산은 이를 제외하여야 할 것인바, 갑 제4호증의 기재에 변론 전체의 취지를 종합하면, 전BB는 2004. 2. 11. 시흥시 AA동 1154-1 답 782㎡(이하 '이 사건 시흥시 토지'라 한다)에 관하여 소유권이전등기를 마친 사실이 인정되나, 한편 갑 제7호증의 1 내지 3의 각 기재에 변론 전체의 취지를 종합하면, 전BB는 2004. 1. 12. 김QQ에게 이 사건 시흥시 토지를 대금 0004,980만 원에 매도하였고, 이에 김QQ는 2004. 3. 10. 이 사건 시흥시 토지에 대하여 수원지방법원 안산지원 2004카단2161호로 부동산처분금지가처분결정을 받은 사실, 전BB는 2009. 11. 2. 김QQ를 거쳐 강RR 에게 이 사건 시흥시 토지를 대금 000원에 매도하고, 이 사건 시흥시 토지에 관하여 강RR 앞으로 소유권이전등기를 마쳐 준 사실이 인정되는바, 위 인정사실에 의하면, 이 사건 시흥시 토지는 2007. 11. 28.자 지급금 지급 당시 이미 김QQ에게 매도되어 실질적 재산적 가치가 없어 전BB의 채권자들에 대한 공동담보로서의 역할을 할 수 없다 할 것이므로, 위 적극재산에서 제외하였다}

Therefore, the donation of the money paid by November 28, 2007 does not constitute a fraudulent act, and the plaintiff's assertion in this part is without merit.

(B) A local subsidy of January 11, 2008

At the time of the donation on January 11, 2008, the formerB’s active property at the time of the donation on January 11, 2008 is the remainder of KRW 000 (calculated: KRW 000 -00) which offered 00 won at the time of November 28, 2007, which was the pro rata property at the time of the donation on November 28, 2007, and the formerB’s negative property is above KRW 00,000, which is the small property at the time of November 28, 207 as seen earlier, and the formerB’s active property at the time of the donation on January 11, 2008, is obviously less than KRW 00 (Calculation: KRW 000,000,00) which was the beneficiary’s bad faith, and thus, the formerB’s active property at the time of the donation on January 28, 200.

Therefore, the gift act should be revoked as a fraudulent act.

In regard to this, Defendant LA alleged that Defendant LA was a bona fide beneficiary, since it was unaware that it would prejudice the obligee as a result of the above donation at the time when he received the payment from the formerB on January 11, 2008. However, it is insufficient to recognize the above assertion only with the descriptions (including the serial number) of the evidence Nos. 5 and A Nos. 1 through 3, and there is no other evidence to acknowledge it. Thus, Defendant LA’s above assertion is without merit.

(C) Money paid on September 8, 2008

At the time of donation of payment from September 8, 2008, the formerB’s active property at the time of donation from January 11, 2008, which was the active property as of January 11, 2008, to limit the remainder of KRW 000 (calculated: KRW 000 -00), and the formerB’s passive property at the time of January 11, 2008 shall be above KRW 00,00,000, which is the passive property as of January 11, 2008. As above, the formerB’s donation of payment from September 8, 2008 to DefendantCC constitutes a fraudulent act by which the lack of joint security was increased, and the intention of the formerBB, the debtor, was recognized, and the beneficiary’s bad faith is presumed to have also been presumed to have been the beneficiary.

Therefore, the gift act should be revoked as a fraudulent act.

As to this, DefendantCC did not know that it would harm creditors by the above donation act at the time when it received the payment from the formerB on September 8, 2008, and thus, DefendantCC asserted that it is a bona fide beneficiary. However, it is not sufficient to recognize the above only by the descriptions (including the paper numbers) of evidence Nos. 2, 2, 7, and 9, and there is no other evidence to acknowledge this. Thus, DefendantCC’s above assertion is without merit.

C. Scope of revocation of fraudulent act

On the other hand, 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. In this case, the creditor's claim amount includes interest or delay damages incurred after the fraudulent act and the end of arguments in fact-finding proceedings. Meanwhile, if national taxes are not paid by the due date, the additional tax on national taxes is a kind of incidental tax, which serves as the interest for the unpaid portion, and if national taxes are not paid by the due date, it is naturally created pursuant to Article 21 of the National Tax Number Act and its amount is determined (see Supreme Court Decision 2000Du2013, Sept. 22, 2000). Thus, the plaintiff can exercise the right of revocation within the limit of the total sum of the additional tax until May 10, 2012, which is the date of closing argument in this case as of November 30, 2011.

D. Sub-determination

Therefore, the contract on donation of KRW 000 as of January 11, 2008 and the contract on donation of KRW 000 as of September 8, 2008 between Defendant LA and the formerB is revoked, and accordingly, the Plaintiff is obligated to recover the amount to the original state. Defendant LA is obligated to pay damages for delay at the rate of KRW 5% per annum as stipulated by the Civil Act from the day following the date this judgment becomes final and conclusive to the day of full payment with respect to each of the above amounts.

4. Conclusion

Therefore, the plaintiff's claim against the defendants is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.