Unless there are special circumstances in excess of obligations, the Plaintiff may exercise the right of revocation against the Defendant.

As a result of each contract of this case, since the rightB’s small assets exceed positive assets, each contract of this case constitutes a fraudulent act detrimental to the plaintiff, who is the creditor, and since the defendant’s bad faith is presumed, the plaintiff may exercise the right of revocation against the defendant, who is the beneficiary, and seek restitution thereof, unless there are special circumstances.

2012Na4388 Revocation of Fraudulent Act

Korea

United Nations AAA

Suwon District Court Decision 2012Ra10722 Decided October 25, 2012

June 26, 2013

July 24, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

For each real estate listed in the separate sheet, and

(a) between the Defendant and the competentB, the reservation to trade concluded on November 18, 2010, and the sales contract concluded on September 29, 201, respectively, and the cancellation of the sales contract concluded on September 29, 201;

B. On November 18, 2010, the Defendant shall implement the procedure for the cancellation of each registration of transfer of ownership, which was completed as of October 4, 201, by the Suwon District Court: (a) the Suwon District Court’s transfer of ownership (No. 53548) registry office; and (b) the registration of cancellation of transfer of ownership, which was completed as of October 4, 201.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Basic facts

A. The chief of the Chungcheong District Tax Office under the Plaintiff-affiliated Tax Office imposed a disposition of imposition on the rightB as described in the attached Table, and the base tax amount on August 10, 2012 due to the rightB not paid by the rightB is KRW 000 [However, the base tax amount on November 18, 2010 (the base tax amount of value-added tax that was finalized on November 18, 2010, and the estimated value-added tax that was scheduled on February 2010) is 00 won and hereinafter referred to as “instant tax claim”).

B. On November 18, 2010, the rightB entered into a pre-sale agreement with the Defendant to sell each real estate listed in the separate sheet owned by the rightB (hereinafter referred to as the "real estate of this case"), and completed the registration of the ownership transfer right (hereinafter referred to as the "provisional registration of this case") on November 18, 2010, and on September 29, 201, the sales contract for selling the real estate of this case (hereinafter referred to as the "each contract of this case including the pre-sale agreement"), and completed the ownership transfer registration, etc. (hereinafter referred to as the "ownership transfer registration of this case") on October 4, 201, by the same registry office (hereinafter referred to as "the ownership transfer registration of this case").

C. On January 11, 2011, the Plaintiff seized the respective real estate listed in the separate sheet Nos. 2 and 3 on June 14, 2011, the title B owned at the time of the seizure, and the real estate owned at the time of the seizure was not located outside the instant real estate and the instant land No. 1,484 square meters.

.

[Based on Recognition] Facts without dispute, Gap evidence 1 to 4, and Eul evidence 1 and 2 (if available, including each number, and hereinafter the same shall apply), the purport of the whole of the arguments and arguments

2. Determination on the defense prior to the merits

A. The assertion

The plaintiff asserted that each of the contracts of this case between the defendant and the rightB regarding the real estate in this case were fraudulent acts, and sought cancellation and restoration thereof, and that the defendant sought cancellation of the provisional registration of this case in the name of the defendant and the transfer registration of ownership in this case, and the plaintiff seized each of the real estate listed in the separate sheet Nos. 2 and 3 as of January 11, 201, each of the real estate in this case owned by the plaintiff on June 14, 2011, and in this process, the rightB should have known that the provisional registration in this case was completed and that it would be prejudicial to secure the plaintiff's claim. Accordingly, the lawsuit of this case brought on August 10, 2012 after the expiration of the exclusion period of this case is unlawful.

B. Determination

The "the date when the creditor becomes aware of the grounds for exclusion in the exercise of creditor's right of revocation" means the date when the creditor becomes aware of the requirements for creditor's right of revocation, and the date when the debtor becomes aware of the facts that the creditor had committed a fraudulent act while being aware of the grounds for revocation, and the fact that the creditor merely knew of the fact that the debtor conducted a disposal of the property is insufficient, it is necessary to know the existence of specific fraudulent act and that the debtor was aware of the objective facts of the damage, and it is not presumed that the plaintiff was aware of the grounds for revocation. Accordingly, the plaintiff was not aware of the facts that the contract was conducted on January 11, 201, and that it was conducted on June 14, 201, and on June 20, 201, it was difficult to find that the plaintiff was not aware of the facts that the debtor had committed a disposal of the property in this case, and that there was no other evidence that the plaintiff did not know of the fact that the contract was conducted on June 14, 2011.

3. Judgment on the merits

(a) The existence and scope of the preserved claim;

As prescribed in Article 21(1) and (2) of the Framework Act on National Taxes, the time when national tax liability comes into existence is each tax liability when the interim prepayment period expires in the case of income tax and value-added tax being prepaid, and when the interim prepayment period expires in the case of the value-added tax being prepaid, and according to the above facts of recognition, all the tax claims in this case against the rightB were established before November 18, 2010, which is the date when the plaintiff's fraudulent act was established.

(b) Hunting to commit a fraudulent act and intent to commit suicide;

1) The financial status of the non-party company at the time of entering into each of the instant contracts

(A)affirmative property;

According to Gap evidence Nos. 1 and 4, while at the time, the real estate in this case and the land in this case may be recognized, comprehensively taking into account the entries and arguments in Eul evidence No. 3, and the base value of the above real estate possessed by the rightB in January 201 is as listed below:

(The following table omitted):

However, the rightB may recognize the fact that the secured debt amount of 00 won is set up on October 24, 2007 as the secured debt amount of 00 won by providing the land of 00 won as the secured debt to obtain a loan from the Geumsung Agricultural Cooperative. If the secured debt amount of 00 won is provided as the secured debt for other creditors, only the balance of the secured debt amount of 0 won by other creditors should be assessed as the debtor's active property from the value of the property offered as the secured debt of 0.0 won by deducting the secured debt amount of 0 won from the value of the property offered as the secured debt of 0.10 won by the method of 00 won as of June 14, 2011, and there is no difference between the secured debt amount of 00 won and 0.10 won as of November 18, 2010, and each of the above secured debt amount of 0.10 won as of October 18, 2010.

b)negative

As seen earlier, there was KRW 000 of the above tax liability against the Plaintiff as of November 18, 2010 with respect to the small property of MOO as seen earlier.

2) Whether the instant reservation for sale and purchase and the instant sales contract were fraudulent and intent to commit suicide

The small property of the holderB after the promise to sell and purchase the instant case and the sales contract remains, while the Plaintiff’s above taxation claim 000 won remains, among active property, only the land of this case (000 won) remains. Ultimately, since the small property of the holderB exceeds the obligation exceeding the active property due to each contract of this case, each contract of this case constitutes a fraudulent act detrimental to the Plaintiff, the obligee, and the Defendant’s bad faith is presumed, barring special circumstances, the Plaintiff may exercise the obligee’s right of revocation against the Defendant, the beneficiary, and seek restitution.

(c) Methods of reinstatement;

Each contract of this case constitutes a fraudulent act, and the defendant has the obligation to cancel it and restore it to its original state, and the defendant has the obligation to implement each procedure for registration of cancellation of ownership transfer registration completed on November 18, 201 by the Suwon District Court, the Dongcheon District Court, the Dongcheon District Court, the 53548, the provisional registration of the claim for transfer of ownership, and the registration of cancellation of ownership transfer registration completed on October 4, 201 by the receipt No. 473

4. Conclusion

If so, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.