Action for revocation of fraudulent act

In light of the fact that it was possible to expect the imposition of gift tax on the consignment of name at the time of receipt of a nominal name, and the fact that title trust was recognized in the case of confirmation of absence of a resolution of a general meeting of shareholders, etc., the defendant's argument alone is insufficient to reverse the presumption of intention to commit suicide, and there is no other evidence to acknowledge it otherwise.

Article 35 of the National Tax Collection Act

2013 Gohap 520212 Revocation of Fraudulent Act

Korea

The AA

on October 2014 05 09

on April 23, 2014

1. As to real estate listed in the separate sheet:

A. Revocation of the contract to establish a mortgage concluded on January 11, 201 between the Defendant and the dueB; and

B. The Defendant shall implement the registration procedure for cancellation of the registration of the establishment of a neighboring mortgage completed on January 11, 201 by the Seoul Central District Court Registry No. 1601.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1.Recognition

The following facts are not disputed between the parties, or acknowledged by considering the whole purport of the pleadings in each entry of Gap evidence of Nos. 1 through 5 (including each number for those with a serial number):

A. Imposition of gift tax on the Plaintiff’s staticB

From January 11, 2012 to February 20, 2012, the Plaintiff: (a) conducted a special tax investigation with respect to PB; (b) confirmed that PB had been entrusted by the Chairperson of △○○○○○○○ Stock Co., Ltd. for five times from December 31, 1998 to December 31, 2004; and (c) determined that the said title trust was the purpose of tax avoidance. Accordingly, on October 8, 2012, the Plaintiff imposed the gift tax amount of KRW 1,402,808,452, KRW 157,602, KRW 385, KRW 385, KRW 2085, KRW 2085, KRW 1087, KRW 2885, KRW 1086, KRW 2887, KRW 29885, KRW 2085, KRW 1087, KRW 2987, KRW 2885,2985,57,285.

(b) An act of disposal of property by a PartyB;

On January 11, 2011, the dueB concluded a mortgage agreement (hereinafter referred to as the "mortgage agreement of this case") with the defendant, who is his own partner, as to the real estate listed in the separate sheet (hereinafter referred to as the "real estate of this case"), which is the only property of which the defendant, and on the same day, the registration of the establishment of the neighboring mortgage of Seoul Central District Court No. 1601 on January 11, 201, which is composed of the debtor BB, the mortgagee, the defendant, the maximum debt amount of which is KRW 874 million, to the defendant as to the above real estate, was completed.

2. Determination on the defense prior to the merits

With respect to the Plaintiff’s claim seeking the cancellation of the instant mortgage contract and the cancellation of the instant mortgage establishment registration, the Defendant asserted that the instant lawsuit filed after the lapse of one year thereafter is unlawful, on the grounds that the Plaintiff’s perusal of the copy of the real estate register on the instant real estate owned by BB while conducting a special tax investigation on the instant real estate from January 11, 2012 to February 20, 2012, and confirmed the fact that the instant real estate was the only property of BB, and that the instant mortgage establishment registration was completed with respect to the instant real estate.

The burden of proving the lapse of the exclusion period in a creditor's revocation lawsuit is against the other party to the creditor's revocation lawsuit (see, e.g., Supreme Court Decision 2009Da47852, Oct. 29, 2009). There is no evidence to acknowledge that the Plaintiff perused the copy of the register of the real estate of this case at the time of the special tax investigation with respect to JungB. Rather, according to each of the evidence Nos. 3 and 4-2, the Plaintiff investigated only the acquisition details of real estate, securities, etc. from 1996 to 2004 of JungB at the time of the special tax investigation with respect to the real estate of this case, and the real estate of this case acquired by JungB on Oct. 1, 2008 is not included in the above acquisition details.

In addition, even if it is assumed that at the time of the above special tax investigation, the Plaintiff’s perusal of the copy of the register of the real estate of this case as to the real estate of this case and confirmed the fact that the establishment registration of the neighboring real estate of this case was completed with respect to the real estate of this case, the lawsuit of this case brought within one year from November 1, 2012, which was filed within 1 year from 2012, is lawful, since the special tax investigation of this case was conducted before the imposition of the gift tax on the dueB and the default of the gift tax on the dueB, and Article 30 of the National Tax Collection Act provides that the person who is in the status of the delinquent taxpayer, may file a lawsuit for revocation of the fraudulent act.

The defendant's assertion about the exclusion period of the exclusion period of the defendant is without merit.

3. Judgment on the merits

(a)the existence of preserved claims;

In full view of the provisions of Article 21(1)3 of the Framework Act on National Taxes and Article 45-2(1) of the Inheritance Tax and Gift Tax Act, the gift tax of this case against MaB is established between January 1, 2000 and January 1, 2006 as of the last day of the year following the year in which MaB was entrusted with the ownership of shares of ○○○○○○ Co.,, Ltd. (from December 31, 1998 to December 31, 2004) by MaB. The Plaintiff’s claim against MaB was already established prior to the date of the instant mortgage contract. Accordingly, the Plaintiff’s claim against MaB constitutes the obligee’s right of revocation that covers the instant mortgage contract.

(b) Presumption of fraudulent act, intent to commit suicide, etc.;

1) Comprehensively taking account of each of the aforementioned evidence and evidence, Gap evidence Nos. 6 and 9 (including each number), and the purport of the entire pleadings, it is recognized that JungB only has a deposit claim of less than KRW 80,000,000,000,000 in total, except the real estate of this case at the time of the instant mortgage agreement, and there was no particular property, while the Plaintiff’s claim of gift tax against JungB was about KRW 10,10,000,000,000,000,0000 won. Thus, the JungB seems to have been in excess of its obligation at the time of the instant mortgage agreement.

2) In addition, the act of an obligor’s offering of real estate, the sole property of which exceeds the obligation, as collateral security, to any one of the creditors becomes a fraudulent act in relation to other creditors (see, e.g., Supreme Court Decision 86Meu83, Sept. 23, 1986). The instant collateral security contract, the real estate of this case, the real property of which is actually only its own property, is assessed as a fraudulent act. As such, insofar as the instant mortgage contract between BB and the Defendant is recognized as a fraudulent act, the intent of Y is presumed as well, and the Defendant’s bad faith is presumed as also.

C. Determination as to the assertion on the intention to commit suicide

1) The Defendant asserts that the time of entering into the instant mortgage contract was prior to the Plaintiff’s imposition of gift tax on BB and the Plaintiff’s special tax investigation on BB, so it could not be anticipated that the Plaintiff would be subject to the imposition of gift tax of this case. Thus, the Defendant asserts to the effect that the Plaintiff’s intent of deception is not recognized.

2) However, in light of the following circumstances acknowledged by each of the above evidence, i.e., ① as seen earlier, the period from December 31, 1998 to December 31, 2004 at which JungB was entrusted by the headCC with the title of ○○○○○○ stocks, a company is entitled to be able to expect the imposition of gift tax upon consignment under the above title; ② Furthermore, in a case where the general meeting of shareholders against the ○○○○ stocks, which was filed by the headCC around 2008, was recognized as a title trust with the above ○○○ stocks, a company may have anticipated that the said ○○○ stocks will be subject to gift tax, and there is no other evidence to acknowledge this otherwise. Therefore, the Defendant’s assertion in this part of this part is without merit.

D. Determination on the bona fide defense

1) The Defendant asserts to the effect that he is a bona fide beneficiary, since he was merely aware of the completion of the registration of the establishment of the instant neighboring area as security of KRW 672,432,807, total amount loaned from September 15, 2009 to September 20, 2010, and did not know at all the excess of his liabilities.

2) However, in light of the following circumstances revealed by the Defendant’s overall purport of the arguments, i.e., the entire purport of the arguments, i.e., (i) not only the birth of MaB, but also there were several monetary transactions between the Defendant and MaBB from around 2007; (ii) the Defendant’s assertion that the Defendant loaned approximately KRW 670 million to MaBB without any security deposit for about one year, and completed the registration of establishment of a loan; and (iii) the Defendant’s claim was completed the registration of establishment of a loan without any security deposit; and (iv) the Defendant’s receipt of a loan and the offer of a security without any security deposit without any security deposit as the same student of MaB, was an example, it is difficult to accept the Defendant’s argument as it is. Accordingly, each statement of 3 through 14 (including each number) is insufficient to reverse the presumption of bad faith against the Defendant, and there is no other evidence to support this part of the Defendant’s assertion.

E. Sub-committee

Therefore, since the instant mortgage contract concerning the instant real estate between the EB and the Defendant is a fraudulent act, it is revoked, and the Defendant is obligated to implement the registration procedure for cancellation of the establishment registration of the instant real estate, which was completed with respect to the instant real estate, as restitution to the original state

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.