Revocation of Fraudulent Act

A sales contract concluded on August 18, 2014 between the defendant and the delinquent taxpayer was revoked, and the defendant is obligated to implement the procedure for the cancellation of registration of ownership transfer with respect to the instant real estate.

Article 406 of the Civil Act

2015 Ghana 104310 Revocation of fraudulent act

Korea

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1. The sales contract concluded on August 18, 2014 with respect to 1/2 shares in the attached real estate indicated in the attached Table between the defendant and AA shall be revoked.

2. The Defendant shall comply with the procedures for registration of cancellation of ownership transfer registration, which was completed under No. 00000 on October 0, 2014, with respect to the portion of 1/2 of the real estate indicated in the attached sheet, among the real estate indicated in the attached sheet, to the Suwon District Court.

3. The costs of lawsuit shall be borne by the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

(a) Claims for preservation;

① On March 19, 2014, an OO-dong 00 forest owned by NA was sold at a voluntary auction on March 19, 2014, and the ownership transfer registration was completed on March 25, 2014. Accordingly, on March 31, 2014 pursuant to Article 21(2)2 of the Framework Act on National Taxes, the obligation to pay capital gains tax on March 31, 2014 was established.

② The transfer income tax of AA is KRW 94,671,349. The AA reported the said transfer income tax on June 2, 2014, and paid KRW 20 million among them.

(b) Real estate disposal disposition;

On August 18, 2014, the pregnantA and its mother entered into a sales contract with the Defendant to sell 1/2 shares of the attached real estate (hereinafter referred to as “instant real estate”) to the Defendant in KRW 145 million. On August 19, 2014, the pregnantA completed the registration of ownership transfer with respect to shares of 1/2 shares among the instant real estate on August 19, 2014.

(c) the financial status of the AA;

At the time of the instant sales contract, the smallest property of the A exceeds the positive property.

(i)affirmative property;

The sum of active property amounts is KRW 56,530,330 as follows:

At the time of the instant purchase and sale contract, the National Federation of Fisheries Cooperatives (hereinafter referred to as the “Korea Federation”) established a collateral security right, which is the debtor, AA, and DoB, on the instant real estate at the time of the instant purchase and sale contract, the secured debt amount should be excluded from the amount of active property. Since the secured debt amount, among the instant real estate, is KRW 9.5 million (199 million in actual claim amount x 1/2), the secured debt amount to be borne by 1/2 shares among the instant real estate, is KRW 9.5 million in active property amount, and if excluded from the amount of active property, the amount of active property of KRW 5.147,00 in the instant real estate amount is KRW 55

2) Petty property

The amount of small-sized property is 74,671,349 won in the sequence 2 of the following table:

[Reasons for Recognition] There is no dispute, Gap evidence Nos. 1-4, Gap evidence No. 10-3, Gap evidence Nos. 12, 15, and 16, response to an order to submit a report by the National Bank, and the purport of the whole pleadings

2. The occurrence of the right to revoke the fraudulent act;

(a) Protective bonds and disposal disposition;

The Plaintiff’s claim for transfer income tax on the AA was incurred before it entered into the instant sales contract with the Defendant, and becomes the obligee’s right of revocation.

The Defendant, on May 23, 2012, lent AA a total of KRW 120 million on June 12, 2012, and KRW 170 million on June 12, 2012. HA claimed that, on June 12, 2012, the said KRW 170 million on June 11, 2013, KRW 30 million on June 11, 2014, KRW 30 million on June 11, 2015, KRW 30 million on June 11, 2015, KRW 30 million on June 11, 2015, KRW 10 million on June 11, 2016, KRW 10 million on the Plaintiff’s share in the instant real estate, and thus, he/she did not perform his/her obligation to dispose of the said real estate by dividing the Plaintiff’s share in the instant real estate into KRW 170 million on June 15, 2018.

However, even if the facts alleged by the Defendant are acknowledged, it is reasonable to view that the date on which he disposed of shares 1/2 of the instant real estate to the Defendant pursuant to the agreement is the date on which the instant sales contract was concluded. Therefore, the Defendant’s assertion that the said transfer income tax claim cannot be a preserved bond cannot be accepted.

(b) Fraudulent act;

Unless there are special circumstances, an act of a debtor, which has already been missing in excess of his/her obligation, provides real estate, the only property of which is the creditor, to any one of the creditors, as payment in kind, becomes a fraudulent act in relation to other creditors, and an act of a debtor to sell real estate, the only property of his/her own, and to change it into money easily for consumption, barring special circumstances, is presumed to be a fraudulent act against a creditor and an intent of causing damage to a debtor (see, e.g., Supreme Court Decision 2000Da

Since the AA, which was in excess of its obligation, was converted into money that could be readily consumed by selling one-half shares of the instant real estate, which is the property practically only for the Defendant, and thus, it constitutes a fraudulent act against the Plaintiff, who is a general creditor of the AA.

The defendant asserts to the effect that, as alleged in the above paragraph 2-A, the defendant lent to A, and that the AA transferred ownership of shares of 1/2 of the instant real estate because the AA failed to perform an installment payment agreement, so it does not change the shares of 1/2 of the instant real estate, which are the sole property of the defendant, to the defendant, and does not constitute a fraudulent act, not by selling the shares of 1/2 of the instant

However, even if the facts alleged by the defendant are acknowledged, since AA provides the defendant with real estate, which is the only property, in fact, when it has already been discharged from debt excess, as payment in substitutes, it constitutes a fraudulent act in relation to other creditors, barring any special circumstance. The defendant's assertion that it is not a fraudulent act is not acceptable.

(c) The intention of the AA to commit suicide;

The AA may be deemed to have known that the instant sales contract would reduce the joint security of other creditors and prejudice the Plaintiff, who is another creditor. Therefore, the AA’s intent to commit suicide is also recognized.

D. Defendant's bad faith presumption and good faith defense

The defendant's bad faith is presumed to be a beneficiary.

The Defendant’s defense to the effect that the instant disposition was not aware that it was a fraudulent act detrimental to the general creditors of the AA.

The evidence presented by the Defendant alone is difficult to find that the Defendant was unaware of the fact that the instant act of disposal was detrimental to the general creditors of the AA, and there is no other evidence to acknowledge it. Therefore, the Defendant’s defense cannot be accepted.

3. Revocation of fraudulent act and reinstatement;

Since the instant sales contract is a fraudulent act, it shall be revoked. Accordingly, the Defendant is obligated to implement the procedures for registration of cancellation of ownership transfer registration, which was completed on October 0, 2014 by the Suwon District Court for the first half shares of the instant real estate, for the restoration to its original state.

4. Conclusion

The plaintiff's claim is accepted.