Busan District Court-2016-Gohap-45970 (Law No. 15, 2017)

Loans granted while establishing a right to collateral security shall be deemed to have been actually used by the debtor, not the nominal owner.

Since loans received at the time of establishing a mortgage are mostly used by the mother, who is the actual debtor, not the nominal owner, the mother is responsible for repaying the secured obligation of the mortgage to the mother, or at least for the defendant, a reasonable amount of liability for reimbursement against the defendant. Thus, the payment of real estate sale is merely the repayment of the mother's obligation even though the mother has repaid the secured obligation of the secured obligation of the mortgage.

Revocation of Fraudulent Act

2017Na53968 Revocation of Fraudulent Act

Korea

HeadA et al.

December 28, 2017

January 25, 2018

1. The part of the judgment of the court of first instance against the defendant Chapter B shall be revoked. The plaintiff's claim against the defendant Chapter B shall be dismissed.

2. The defendant headA's appeal is dismissed.

3. The total cost of the lawsuit between the Plaintiff and the Defendant Chapter B shall be borne by the Plaintiff, and the cost of the appeal between the Plaintiff and the Defendant Chapter A shall be borne by the Defendant Chapter A.

1. Purport of claim

Each donation agreement between Defendant A and KimCC shall be revoked on February 18, 2014, each of which was concluded on May 2014, 2014, and each of which was concluded on March 5, 2014, March 19, 2014, and May 20, 2014 between Defendant BB and KimCC. Defendant A shall be jointly and severally paid to the Plaintiff 572,763,540 won and the amount calculated at the rate of 5% per annum from the day following the day this judgment became final and conclusive to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim against the defendants is dismissed in entirety.

1. Basic facts

The reasoning for this part of this Court is that it is identical to that of Paragraph 1, except for deletion of Paragraph 1-b. of the reasoning for the judgment of the first instance, and therefore, it is acceptable in accordance with the main sentence of Article 420 of

2. The parties' assertion and judgment

(a)the existence of preserved claims;

A high probability exists as to the establishment of a claim at the time of a fraudulent act, which is already based on the existing legal relationship in the near future, and where a claim has been created by realizing such probability in the near future, such claim may also become a preserved claim (see, e.g., Supreme Court Decision 2011Da76426, Feb. 23, 2012). In addition, when a creditor exercises his/her right of revocation, the creditor’s claim amount includes the interest or delay incurred at the time of the conclusion of arguments in fact-finding proceedings, and the additional dues and increased additional dues prescribed in Articles 21 and 22 of the National Tax Collection Act are the kind of incidental tax imposed as a interest for the unpaid portion if national tax is not paid by the due date, and if national tax is not paid by the due date without the final procedure of the person who has the right of revocation, the amount of the transfer income tax shall also be included in the amount of additional dues and increased additional dues incurred by the time of closing argument in the fact-finding proceedings (see, e.g., Supreme Court Decision 200636.

Although KimCC did not actually generate the Plaintiff’s transfer income tax claim until May 20, 2014, which was the final date when it remitted total amount of KRW 635 million to the Defendants, according to the above acknowledged facts, the instant real estate sales contract, which is a legal relation that serves as the basis of imposition of transfer income tax, was concluded on February 13, 2014, and thus, it was probable that transfer income tax claim would have been established in the near future. In fact, on October 10, 2014, the Plaintiff’s transfer income tax and global income tax claim against KimCC, including additional dues, are all preserved claims of obligee’s right of revocation.

B. Criteria for determining fraudulent act

1) In a case where a debtor has committed multiple property acts in succession, it is in principle determined in accordance with whether each act causes insolvency. However, in a case where there exist special circumstances to regard such a series of acts as a single act, it shall be determined as a whole as a single act. In such a case, whether there exists any special circumstance should be determined based on the identity of the other party to the act, the time closeness of each act, the relationship between the debtor and the other party, the motive or opportunity of the act, etc. Furthermore, whether the requirements for a fraudulent act, such as the degree of excess of debt, etc., should be determined based on the first act of property (see Supreme Court Decision 2010Da15387, May 27, 2010).

In light of the following circumstances acknowledged by the facts and evidence as seen earlier, the act of KimCC’s payment of money several times to Defendant 2A and 2B constitutes a single act. Therefore, the aforementioned act of payment of money by KimCC is not determined by each act, but is determined in a lump sum as a whole, and the other party to the payment of money is different, and thus, it is necessary to determine whether it is a fraudulent act by dividing into the Defendant and determining whether it is a fraudulent act. Moreover, whether the requirements for a fraudulent act are satisfied should be determined at the time of the first payment of money.

① From February 18, 2014 to May 20, 2014, KimCC paid the maximum amount of KRW 230,000,000,000 over three occasions to Defendant Funeral and KRW 45,500,000,000 over three occasions for three months.

② The KimCC and the defendant headA are children of all the births, and the defendant headB are closely related to each other as children.

③ On February 13, 2014, KimCC received the instant real estate sales contract amounting to KRW 257 million from February 18, 2014, and remitted KRW 50 million to Defendant 2A on February 18, 2014, and transferred KRW 300 million from March 19, 2014 to Defendant 2B on the same day. The payment of KRW 497,814,275 on May 20, 201, and transferred KRW 180,000 to Defendant 2A on the same day, and KRW 100,000,000 to Defendant 2. The said monetary payment started immediately after the instant real estate sales contract, and all of the instant payments appears to have been prepared as the sales amount of the instant real estate.

④ The instant payment was prepared as the sales price for the sale of real estate. The payment that KimCC transferred to the Defendants in installments was divided into a down payment, intermediate payment, and balance, and remitted to the Defendants at the time of receipt. The KimCC transferred the instant payment to the Defendants only to a single account by the Defendant. The said payment was deemed to have been made in the same motive or the same opportunity as the sale of the instant real estate. Accordingly, the said monetary payment is deemed to have been linked.

2) The Plaintiff asserts that the above monetary payment act by KimCC should be judged as a whole as to the Defendants as a whole. However, since the other party to the monetary payment differs, and the nature of the money paid differs as seen below, it is difficult to view that KimCC paid money to the Defendants as the same motive. Therefore, each monetary payment act by KimCC against the Defendants cannot be deemed as one act en bloc.

(c) Debtor's insolvent;

A fraudulent act refers to an act that causes damage to the creditor by reducing active property or deepening the fact that the debtor is already in excess of his/her obligation by increasing his/her negative property (see, e.g., Supreme Court Decision 2007Da61618, Jan. 15, 2009). Moreover, whether the debtor is in excess of his/her obligation in a lawsuit seeking revocation of a fraudulent act is determined as at the time of the fraudulent act (see, e.g., Supreme Court Decision 2010Da64792, Jan. 12, 2012).

In full view of the aforementioned facts and evidence, the financial status of the KimCC as of February 18, 2014 is as follows. KimCC received a down payment as a check on February 13, 2014, and transferred it to the defendant headA on February 18, 2014, and there is no other evidence that KimCC consumeds down payment, it is deemed that the said down payment was owned as active property as of February 18, 2014. Since KimCC-owned 00, 45-3200, 100, 101, which was offered as real collateral in excess of the market price of the above real estate, it cannot be deemed as a liability property for general creditors, this is excluded from the calculation of active property, which is the difference between the debt-backed property of the defendant 200,000,000 won and the debtor 20,000,000 won were less than the amount of debt-backed property of the 300,000 won.

The financial status of the KimCC as at February 18, 2014

No.

Items

Amount (won)

Active Property

1

The remainder claim of this case 2.570 million won, among the real estate sales balance claim of this case

Exclusion of 1/2 of the building shares of the headCC from 470,850 million won

2,091,500,000

2

Deposit claims (GG Bank)

39,000,255

3

Deposit Claim (H Bank)

4,149,172

The aggregate of active property

2,134,649,427

Petty Property

1

The secured debt of the instant real estate mortgage

1,115,185,725

2

The real estate deposit obligation of this case

400,000,000

3

The aggregate of this tax liabilities

454,500,820

Total amount of small-sized property

1,969,686,545

Difference

164,962,882

In addition, in full view of the purport of the entire argument as seen earlier, the financial status of the KimCC as of March 5, 2014 was compared to the financial status as of February 18, 2014 as seen earlier, and as such, the positive property was increased or the negative property was not decreased, as it still remains in excess of the liability, except for the decrease of deposit claims against the KimCC’s GG Bank and HH Bank as an active property.

D. Nature of the payment of this case

1) The nature of the payment made to the defendant headA

A) According to the court of first instance’s results of each financial transaction information about HCC and each of the evidence Nos. 11 and 13, it is recognized that Defendant 2A remitted total of KRW 288,770,000 to KimCC on 26 occasions from October 21, 2005 to February 4, 2014, and repaid obligations of KimCC on behalf of the Defendant 30,000,000 won. However, it is recognized that the KimCC remitted total of KRW 185,150,000 to Defendant 2A during the same period.

No.

Date

Amount paid (won)

No.

Date

Amount paid (won)

1

208.07.16

10,000,000

14

2012.05.02

1,900,000

2

208.07.16

10,000,000

15

o October 08, 2012

7,000,000

3

208.07.16

10,000,000

16

o October 08, 2012

3,000,000

4

6.06.04

5,000,000

17

November 27, 2012

10,000,000

5

209.08.17

2,250,000

18

November 27, 2012

10,000,000

6

December 28, 2009

1,000,000

19

November 27, 2012

10,000,000

7

.01.29

4,000,000

20

November 27, 2012

10,000,000

8

November 29, 2010

10,000,000

21

5, 2014

10,000,000

9

November 29, 2010

10,000,000

22

5, 2014

10,000,000

10

November 29, 2010

10,000,000

23

5, 2014

10,000,000

11

2011.02

2,000,000

24

oly 2014.14

10,000,000

12

December 28, 2011

10,000,000

25

oly 2014.14

7,000,000

13

December 28, 2011

2,000,000

guidance.

86,250,000

98,900,000

Total System

185,150,000

B) Comprehensively taking account of the following circumstances acknowledged in full view of the above facts and the purport of the entire pleadings, it is difficult to view that the payment of the instant amount of KRW 230 million, which the Defendant Funeral Fund received from the Defendant Funeral Fund, has repaid to the Defendant Funeral Fund, and there is no evidence to deem otherwise that the Defendant Funeral Fund has the right to receive a remittance. Ultimately, it is determined that the KimCC has given a donation to the Defendant Funeral Fund.

① There seems to be a number of bank accounts of Defendant 1 and Defendant 2 appears to have been in a different financial transaction between each other. ② Defendant 2 and Defendant 2 did not prepare a loan certificate between Defendant 2 and Defendant 3,550,000 won. ③ There is no evidence suggesting that the interval between time from the first financial transaction to the time of remittance of each of the instant loans has reached eight years, and that Defendant 2 urged Defendant 1 to pay the instant loans or received interest during the said period. ④ As seen above, it appears to have used approximately KRW 12,00,000 out of the loans established and received as collateral for the instant first class of loans. ⑤ The difference between the money remitted by Defendant 2 and the money remitted by Defendant 3,550,000 won is merely KRW 130,000,000,000,0000,000 won and KRW 3,000,000,000 in excess of the previous loans of Defendant 1.

C) Even if part of the instant payments, as alleged by Defendant HeadA, were remitted to repay the existing debt, in light of the aforementioned circumstances, it appears that in collusion between KimCC and Defendant HeadA and that the instant payments were remitted in order to preferentially repay the Defendant HeadA’s debt with the intent to prejudice the creditors, including the Plaintiff, and thus, constitutes a fraudulent act.

2) The nature of the payment to Defendant Chapter BB

A) The Plaintiff asserts as follows. Defendant B received KRW 1,115,185,725 from the Kim J in connection with the instant real estate transaction, and repaid the instant KRW 1,200,000 to the said money. This is the repayment of Defendant B’s own debt, and thus, Defendant B received KRW 478,50,000 of the share purchase amount of the instant building 1/2,000,000,000. Accordingly, Defendant 2B received KRW 45,50,000,000 from Defendant 2. Nevertheless, as long as it received KRW 4,50,00,00,000 from Defendant 2, this would be the donation by Kim

B) The Defendant 1 and 2 collateral security debtor in the instant case did not dispute between the parties, and KimCC transferred the sales price of the instant real estate to Defendant B to Defendant 2, thereby allowing the Defendant to repay the secured debt under the instant 1 and 2 collateral security.

However, the above facts and the evidence submitted by the Plaintiff alone are insufficient to recognize that Defendant B was given a donation of the instant payment, and there is no other evidence to acknowledge this otherwise.

Rather, in light of the following facts and circumstances acknowledged by the purport of the entire pleadings with respect to the testimony of the witness of the first instance court and the evidence Nos. 5, (4) and (10) and the testimony of the witness of the first instance court, it appears that the loans granted upon the creation of the instant 1 and 2 collateral security by KimCC were used most of the instant 1 and 2 collateral security. Therefore, it is deemed that the instant 1 and 2 collateral security was liable for the instant 1 and 2 collateral security, or at least the amount of liability for indemnity against the Defendant 2B. Thus, even if the instant 1 and 2 collateral security was repaid with the instant real estate sale price, it cannot be deemed that Defendant 2 paid the 1/2 share purchase price of the instant building, and thus, Defendant 1 and 2 did not receive the payment of the instant 450 million won or more from the sales price of the instant building. In light of this, it appears that Defendant 2 had received the instant 1/2 or more equity share.

① The share of the instant building 1/2 was succeeded to by the Defendant Chapter BB from the Network L, the father, on September 4, 1992. The share appears to be the share of the Defendant Chapter BB.

② The first collateral mortgage of this case was established and the amount of KRW 1 billion was loaned from MMM credit cooperatives and cancelled a number of existing collateral mortgages. The debtor of the cancelled collateral security is KimCC (the debtor of NNConstruction Co., Ltd., NBB, but the debtor of NNF, who actually borrowed money from NNF construction, as seen below, is KimCC).

③ The instant collateral security right was cancelled on May 24, 2010 of HH bank’s repayment of the existing loans to HH bank KRW 469,614,649 ( KRW 349,192,613, KRW 120,422,036, KRW 349,613, and KRW 120,422,036) with the loans granted upon the creation of the instant collateral security right. The collateral security right of the H bank on May 24, 2010 is to guarantee the existing loans owed by the Defendant YA.

Ultimately, KimCC seems to have repaid Defendant Chapter A’s existing loan obligations with the loan that Defendant Chapter A received while establishing the instant first resort mortgage.

④ Of the loans, KRW 281,227,397 was used to repay the existing loans to the OCC bank.

⑤ On September 28, 2012, NCC’s obligor of NCC, which was cancelled at the time of the instant creation of a collateral security, was registered as Defendant BB. However, on September 28, 2012, KimCC borrowed KRW 250 million from NCC on September 28, 2012, and paid the company’s delinquent tax amount, a de facto spouse, a de facto spouse. Accordingly, Defendant BB is irrelevant to the NCC’s liability for NCC and used money from NCC, and the KimCC borrowed money from NCC to pay the borrowed money with the loan received at the time of establishing the instant collateral security.

④ On November 27, 2012, a loan of KRW 40 million, which was paid upon the establishment of the instant second collateral mortgage on the instant real estate, was entirely transferred to the HH bank account of the KimCC except for some public charges. The said money appears to have been re-transfered to Defendant HoA, and eventually, KimCC used the said money.

7) The interest on the instant 1 and 2 collateral loans, which was established on the instant real estate, was paid by KimCC.

(e) Whether a fraudulent act is committed, the revocation thereof, and reinstatement;

1) As to Defendant A

Since KimCC donated the sum of KRW 230 million to Defendant HeadA, in excess of its obligation, and provided its own property without compensation, and thus, it is recognized that KimCC’s intent to commit suicide is recognized. The bad faith of Defendant HeadA, a beneficiary, is presumed, and there is no other counter-proof.

Therefore, the contract of donation concluded between KimCC and defendant headA shall be revoked in its entirety as it constitutes a fraudulent act. As a result, the defendant headA is obligated to pay to the plaintiff 230 million won and damages for delay calculated at the rate of 5% per annum under the Civil Act from the day following the day this judgment is finalized to the day of full payment.

2) As to Defendant BB

The evidence submitted by the Plaintiff alone is insufficient to recognize that KimCC donated KRW 450 million to Defendant Chapter BB, and instead, it was found before Defendant B sold 1/2 shares of the instant building inherited by Defendant B and simply delivered or distributed the sales amount received. Therefore, the Plaintiff’s revocation of fraudulent act and restitution of the original status against Defendant BB is without merit.

3. Conclusion

Thus, the plaintiff's claim against the defendant headA shall be accepted on the ground of its reason, and the plaintiff's claim against the defendant headB shall be dismissed on the ground of its reason. Since the part against the defendant headB in the judgment of the court of first instance concerning the defendant headB is unfair on the ground of its conclusion, the defendant headB's appeal is accepted, and the plaintiff's claim is revoked, and the plaintiff's claim is dismissed.