Appropriateness of the assertion that cash donation does not constitute a fraudulent act as division of property

Where the property to be divided into the property at the time of donation of cash is deducted from the positive property, the amount of cash donation with the negative amount shall not be deemed within the reasonable extent of division of property.

Article 30 of the National Tax Collection Act (Cancellation of Fraudulent Act)

1. The contract of gift amounting to KRW 50,00,000, which was entered into on July 1, 2005 between the defendant and the head of the office shall be revoked.

2. The defendant shall pay to the plaintiff 50,000,000 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

3. The plaintiff's remaining claims are dismissed.

4. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The contract of donation of KRW 100,000,000 entered into on April 22, 2005 between the Defendant and the head of the office shall be revoked. The Defendant shall pay to the Plaintiff 100,000,000 won with 5% interest per annum from the day following the day this decision became final and conclusive to the day of full payment.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by adding up the whole purport of the pleadings to the statements in Gap evidence 1-1, 2, 2-2, 2-1, 3-1 through 6, 5, and 6:

A. Tax claims against the plaintiff's ○○ Period

(1) On October 29, 2001, the head of ○○○○○○-dong, Seoul, ○○○○○-dong, ○○○-73 reinforced concrete structure, multi-family house on three floor (hereinafter referred to as “first real estate”) owned by ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, and completed the registration of ownership transfer on December 31, 201, he did not make a voluntary declaration and payment of capital gains tax even though the liability for capital gains tax was established on December 31, 201. The Plaintiff’s head of the Dong-gu District Tax Office decided capital gains tax as KRW 132,589,540 (hereinafter referred to as “tax liabilities”) and notified the payment thereof by September 1, 2006.

(2) On December 31, 2005, 2005, ○○○○○○-dong ○○-1 reinforced concrete building ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, and one store store (hereinafter “2 real estate”) owned by ○○○○○○○○○○○○○○○○○○○○, selling to ○○○○○, and completing the registration of ownership transfer by 1/2 equity shares, and thus, he did not make a voluntary declaration and payment of capital gains tax even though the obligation to pay capital gains tax was established on December 31, 2005. Accordingly, the head of the Dong-gu Tax Office of the Plaintiff determined capital gains tax amount of KRW 43,498,720 on December 2, 200 (this is the amount calculated by deeming the sales price of the said real estate as the standard market price, and notified the payment thereof by February 15, 2006.

(3) In addition, the head of the Dongdaemun District Tax Office notified the head of the Seodaemun to pay KRW 566,920 of global income tax in 2005 (the date when the liability for tax payment was established on December 31, 2005).

(4) As of November 7, 2006, 2006, the head of ○○○ was unable to pay the tax amount stated in the above Paragraph, and the tax amount in arrears with the Plaintiff as of November 7, 2006 plus KRW 136,820,820,820,820, plus KRW 4,231,280, plus KRW 43,498,720, capital gains tax for the year 2005; KRW 46,369,620, ③ plus KRW 566,920, global income tax for the year 2005 plus KRW 51,00,000 for the total of KRW 183,808,360,360.

(b) Donation, such as cash, to the defendant of the ○○ flag;

(1) On April 22, 2005, 2005, ○○ deposited a cashier’s check of KRW 100 million at the face value ( check No. A) in the bank account (Account Number B) under the name of the Defendant among the checks delivered under the balance from Kim○-hee, a purchaser of 1/2 shares in the instant 2 real estate (hereinafter “the instant 1 donation contract”).

(2) On July 1, 2005, ○○○ wired KRW 20 million from the account under its name to the corporate bank account (Account Number C) in the Defendant’s name, and additionally deposited KRW 30 million and paid KRW 50 million in total (hereinafter “instant secondary gift contract”).

C. On April 20, 1965, the Defendant reported a marriage on April 20, 1965, but completed the agreement divorce report on March 22, 2007.

2. Determination as to the Plaintiff’s revocation of the first donation contract and the claim for return of value

A. The plaintiff's assertion

The plaintiff asserts that the defendant's act of donation of KRW 100 million to the defendant on April 22, 2005, when the head of ○○ was liable to pay the above tax liability to the plaintiff, is a fraudulent act. Thus, the plaintiff asserts that the head of ○○ and the defendant seek the cancellation of the above 100 million gift contract

B. Determination

Although a tax claim against the plaintiff's ○○○ term is acknowledged as a preserved right, in order to constitute a fraudulent act, the act of disposing of the property at the ○○ term's maturity requires the debtor's insolvency. According to the evidence No. 3-1 of the evidence No. 3, on April 22, 2005, the fact that the ○○ term's active property in the ○○ term was 215,940,693 of the deposit balance can be acknowledged immediately after the defendant was donated KRW 100 million to the defendant. In this case where the ○○ term's active property in the ○○ term's small property in the ○○ term did not have any other obligation than KRW 183,808,360 other than the above tax liability 183,8,360 as the 1 donation contract in the instant case, there is no evidence to acknowledge that the ○○ term was insolvent

3. Determination as to the Plaintiff’s revocation of the second donation contract and the claim for return of value

A. The parties' assertion

The plaintiff asserts that the contract of gift No. 2 of this case, which donated KRW 50 million to the defendant on July 1, 2005, when the head of ○○ was liable for tax liability as seen earlier to the plaintiff, is fraudulent act. Thus, the contract of gift No. 2 of this case between the head of ○○○ and the defendant is revoked, and the defendant claimed compensation for its value. As to this, the defendant was actually divorced from the head of ○○○○○○ and the head of 2002, and the amount of KRW 50 million received from the head of ○○○○○○ under the contract of gift No. 2 of this case was paid as property division in divorce. Thus, it is not a fraudulent act, and it is not a fraudulent act, and it was proved that the head of ○○○○○○○ was harmed by the above contract of gift No. 2.

(b)the existence of preserved claims;

(1) According to the above facts of recognition, a transfer income tax claim on the plaintiff's 2001 heading term of ○○ constitutes a preserved claim of the obligee's right of revocation as to the second donation contract of this case since it was established on July 31, 2001, which was prior to July 1, 2005, which was the date of the second donation contract of this case.

(2) In addition, since the transfer income tax and global income tax claim belonging to the year 2005 were concluded during the pertinent taxable period as the gift contract of this case was concluded during the pertinent taxable period, and on December 31, 2005, it was highly probable that each tax claim belonging to the year 2005 should be established based on the above basic legal relations in the near future at the time of the conclusion of the gift contract of this case, as well as the possibility thereof was realized in the near future, and each of the above tax claims should have been established. Thus, the transfer income tax and global income tax claim belonging to the year 2005 may also become the preserved claim of the obligee's right of revocation (see Supreme Court Decision 2000Da37821, Mar. 23, 2001);

C. Establishment of fraudulent act

(1) In full view of the purport of the arguments in the above evidence, the head of ○○○○ concluded the gift contract of this case with the Defendant on July 1, 2005, which was equivalent to KRW 78,578,989 as of July 1, 2005, and ○○○○○○○’s active property at the time was equivalent to KRW 183,80,360 of the balance of the deposit, and thus, he had already been in excess of the obligation (the Defendant’s active property at the time was in excess of the amount of KRW 20,000,000 and KRW 30,000,000 for installment savings and KRW 20,000 as the active property at the time of ○○○○○○, but there is no evidence to acknowledge this, even if there was more claims than KRW 50,000 as active property, and thus, it constitutes the obligee’s tort, which is detrimental to the obligee’s joint security.

(2) In addition, considering the fact that the second donation contract of this case was made after April 22, 2005, which was the date of disposing of the second real estate of this case, at the time expected to bear capital gains tax, and that the defendant, the other party to the donation contract, is the wife of the long-term period of 40 years or more after the marriage report, it shall be deemed that it was sufficiently aware that the period of ○○ at the time of the second donation contract of this case would reduce the creditors' joint security due to the above donation contract, and that the defendant, the beneficiary, is presumed to have attempted to commit a fraudulent act, barring any special circumstances, the second donation contract of this case shall be deemed to constitute a fraudulent act.

D. Judgment on the defendant's assertion

(1) Determination as to the assertion that property division is not fraudulent act

According to the evidence Nos. 5 and 6, since the defendant was confirmed on Jan. 31, 2007, which was after the filing of the lawsuit in this case, and reported the divorce on Mar. 22, 2007, it is recognized that the contract of donation No. 2 in this case was made as a division of property against the defendant.

Then, considering that the marital property system is based on a separate marital property system, in principle, the respective husband and wife’s obligations are borne by each husband and wife. Thus, in cases where a husband and wife divorced, the obligation borne by one spouse during marriage is not, in principle, subject to liquidation as an individual’s obligation. However, if the obligation is assumed with respect to the formation and maintenance of common property, it shall be subject to liquidation. Even if the specific positive property acquired by the obligation remains, if the obligation is deemed to be for common interest of the husband and wife, it shall be deemed to be accompanied by the formation and maintenance of common property during marriage and shall be subject to liquidation (see, e.g., Supreme Court Decision 2005Da74900, Sept. 14, 2006). Thus, the Defendant’s assertion that the above property is subject to liquidation 80,60,000 won, which was already acquired by the Defendant’s joint property division - 206,000 won and 96,000 won, which were acquired by the Defendant’s property division 26.

(2) Determination on the bona fide assertion

The Defendant, at the time of the second donation contract of this case, did not know the occurrence of capital gains tax liability for the long term of 2001, for the long term of 2001, which was the husband at the time of the second donation contract of this case, and did not have been entirely anticipated that the capital gains tax and global income tax liability accrue for the long term of 2005. Thus, the Defendant asserts that himself is a bona fide beneficiary who was not aware of the fact that he would prejudice

In light of the above, it is difficult to believe that the entry of No. 7, which seems to correspond to the defendant's good faith, in the entry of No. 7, is difficult to believe it, and there is no other evidence to recognize it, and the above argument by

E. Sub-decision

Therefore, since the contract of donation No. 2 of this case constitutes a fraudulent act, the contract of donation No. 50 million won between ○○○ and the defendant on July 1, 2005 is revoked, and the defendant is obligated to pay to the plaintiff delay damages calculated at the rate of 5% per annum from the day after the day when the judgment of this case became final to the day when full payment is made, to the day when full payment is made.

4. Conclusion

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