In the case of the seller's bad faith trust, even if the debtor disposes of real estate, it does not constitute a fraudulent act.

In a case where the registration of ownership transfer in the name of the debtor, a title trustee, is null and void because the real estate is not owned by the debtor, so it cannot be deemed as a responsible property provided by the debtor's joint security, so even if the debtor concluded a sales contract and completed the registration of ownership transfer, it is not a fraudulent act.

Article 30 of the National Tax Collection Act: Revocation and Restoration of Fraudulent Act

2014 Ghana 21888 Revocation of Fraudulent Act

Korea

DoAA

June 19, 2015

July 24, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The sales contract concluded on July 1, 2012 between the defendant and the non-party KimB on the real estate stated in the separate sheet shall be revoked. The defendant will implement the procedure for registration of cancellation of ownership transfer registration completed on July 16, 2012 by the Changwon District Court No. 47196 on the real estate listed in the separate sheet to the non-party KimB.

1. Basic facts

A. KimB is a person who has run a gas station business under the trade name, i.e., ○○○○○○○○○○○○○○○○○○○ from April 1, 2010 to October 16, 2013.

B. The head of the ○○○ Tax Office under the Plaintiff’s control notified KimB of payment by revising the amount of KRW 201,118,687 ( June 30, 2012 as of the date on which the liability for tax payment was established) in the year 2012, which was omitted on July 31, 2013 by the due date, but KimB did not pay the said amount.

C. On December 30, 2011, KimB completed the registration of ownership transfer for the instant apartment on November 22, 201 with respect to the real estate listed in the separate sheet (hereinafter “instant apartment”) owned by thisCC (hereinafter “instant apartment”). On July 16, 2012, KimB completed the registration of ownership transfer for the instant apartment on July 1, 201.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 4 (including branch numbers for those with additional numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The Plaintiff had a claim for value-added tax amounting to KRW 201,118,687 against KimB. However, KimB sold the apartment of this case to the Defendant on July 1, 2012, thereby doing so. The sales contract between KimB and the Defendant on July 1, 2012 should be revoked as a fraudulent act.

B. Defendant’s assertion

The apartment of this case is purchased from the Defendant’s funds pursuant to the contract title trust agreement between the Defendant and KimB, and is merely a sale contract owner’s name and a registration name KimB. This apartment of this case’s seller is null and void pursuant to the main sentence of Article 4(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and thus, the registration of transfer of ownership in the name of KimB pursuant to the main sentence of Article 4(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name is not a responsible property of KimB. Therefore, even if KimB concluded a sales contract on the apartment of this case with the Defendant and completed the registration of transfer of ownership in the future with the Defendant, it cannot be deemed as a fraudulent act detrimental

C. Determination

1) The title truster and the title trustee enter into a so-called contract title trust agreement, and they enter into a sales contract.

If a title trust agreement between a title truster and a title trustee is knowingly completed the registration of ownership transfer of the real estate in the name of a title trustee pursuant to the main sentence of Article 4(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name is null and void (see, e.g., Supreme Court Decision 2010Da95185, Sept. 12, 2013). In cases where the main sentence of Article 4(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name is applicable to real estate and the registration of ownership transfer in the name of a title trustee becomes null and void, such real estate is not owned by a debtor, and it cannot be deemed as a debtor’s joint collateral. Even if a debtor concluded a sales contract with a third party on the real estate and completed the registration of ownership transfer to that third party, it cannot be deemed a fraudulent act detrimental to the debtor’s general creditors, and it cannot be deemed that the debtor had an intent to harm (see, e.g., Supreme Court Decision 2007Da7874, Sept. 25, 2008).

2) In light of the following circumstances, in light of Gap evidence Nos. 1, Eul evidence Nos. 1 through 3, 5 through 7, 9 through 12, and 14, each of the testimony of the witness bestD, SongE and each of the testimony of the court of this case and each of the orders to submit financial transaction information to the YB Co., Ltd. against the defendant (or defendant's wife Furf) and the YB, there was a contract title trust agreement between the defendant (or the defendant's wife) and the YB to acquire the ownership of the apartment of this case. It is reasonable to deem that this apartment seller of this case was aware of the above contract title trust agreement. Accordingly, since the transfer registration in the name of KimB on the apartment of this case is invalid under the main sentence of Article 4(2) of the Act on the Registration of Real Estate under the name of the actual right holder, since this case's apartment is not owned by KimB, it cannot be deemed that it did not constitute KimB's co-mortgage's common property, nor can it be deemed that the defendantB's general apartment property decrease.

① The purchase price under the sales contract concluded on November 22, 201 with respect to the instant apartment betweenCC and KimB is KRW 154 million (the contract amount of KRW 15 million, intermediate payment of KRW 50 million, the remainder of KRW 89 million, and the remainder of KRW 89 million). On November 19, 2011, KRW 2 million with respect to the instant apartment was transferred from the Z Bond Account in the name of the Defendant’s wife FF to the account in the name of thisCC, and KRW 13 million after deducting KRW 2 million with respect to the said provisional contract amount from the Z Bond Account in the name of the Defendant’s wifeF to the account in the name of thisCC.

② 중도금 5,000만 원 중 4,400만 원이 2011. 12. 15. 추FF 명의의 XX은행 계좌에서 이CC 명의의 XX은행 계좌로 이체되었고, 나머지 600만 원이 2011. 12. 16. 김BB 명의로 이CC 명의의 XX은행 계좌에 입금되었다. 추FF은 김BB의 남편인 추QQ 명의의 YY 계좌로 2011. 12. 19. 465만 원, 2011. 12. 22. 10만 원 합계 475만 원을 이체하고, 추QQ가 추FF 명의로 대출받은 ○○공제회 대출금 원리금상환과 관련하여 추QQ 부부로부터 매월 지급받아온 125만 원을 1회 지급받지 않음으로써 위 600만 원을 변제하였다.

③ Of the remainder of KRW 89 million, KRW 30 million was agreed to substitute for the payment of KRW 30 million upon acceptance of the obligation to return the lease deposit of CC against the lessee of the apartment complex in this case. The remainder of KRW 59 million was paid from the Y account in the name of the postF to the Y account on December 29, 201. Y account in the name of the postF, the amount of KRW 59 million was deposited in KRW 59 million in the Y account in the name of the postF immediately before the withdrawal. On January 13, 2012, the Defendant repaid KRW 59 million by remitting’s transfer of KRW 59 million to the Y account in the name of the postF.

④ On February 2012, 2012, the lease deposit amount of KRW 30 million for the lessee of the instant apartment with the EE.

18. A payment was made from the W account in the name of KimB, and around that time, KRW 30 million was deposited into the said W account in the name of KimB, a new lessee of the apartment of this case. Thereafter, on March 30, 2013, KRW 30 million was paid from the VB account in the name of the Defendant on March 30, 2013.

⑤ As the mother of thisCC, mostD, which entered into the sales contract for the apartment of this case on behalf of thisCC, has been the father of this Court from this Court to the buyer on the date of the sales contract, and told that the buyer will purchase the apartment in the future. At first, the buyer prepared the sales contract with the buyer on the date of the remainder payment, at the request of the buyer to issue a seller’s certificate of personal seal impression with the buyer on the KimB before the remainder payment date, and the buyer again prepared the sales contract with the KimB on the remainder payment date. At the remainder payment date, the father of the FF and HuF received KRW 59,000,000 from the RF Na and QF NaF, and the statement from RF that the buyer would purchase the apartment of this case in the name of MBB.

6) In this Court, Song-E, the lessee of the instant apartment, stated that “A young female visiting the house to be a prospective young female, and discussed about the return of the said young female and the lease deposit.” The testimony was presented to the purport that “E-E-E, who was the lessee of the instant apartment, was deposited into the account in the name of the pF bank by calculating the first day after the change of the owner of the instant apartment, on a daily basis.”

3. Conclusion

Therefore, the plaintiff's claim against the defendant is dismissed as it is without merit. It is so ordered as per Disposition.

shall be ruled.