Busan High Court-2014-Na51312 ( December 04, 2014)

Where a divorce is a fraudulent act, compensation for the value based on the market price at the time of the conclusion of trial proceedings.

Where the division of property due to divorce constitutes a fraudulent act, the scope of compensation for value shall be calculated on the basis of the market price at the time when the fact-finding hearing is concluded.

Article 30 of the National Tax Collection Act, Revocation of Fraudulent Act and Restoration to Original State, Article 406 of the Civil Act

Supreme Court Decision 2014Da236915 Decided Fraudulent Act

Korea

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Busan High Court Decision 2014Na51312 Decided December 4, 2014

May 14, 2015

The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. The summary of the judgment of the court of first instance cited by the court below is as follows.

The Defendant’s donation of this case’s real property, the sole property of which is the Plaintiff’s property, constitutes the division of property following divorce. In light of various circumstances, it is reasonable to determine the Defendant’s division rate of 50%, including consolation money, at the time of the instant donation. As such, around July 2009, at the market value of the instant real property, the amount of KRW 157,00,000 calculated by deducting KRW 49,327,00,00, from net property at the time of the instant donation, the amount of KRW 107,673,636,50, which is 50% of net property at the time of the instant registration of the establishment of a neighboring real property, shall be held as property division including consolation money. The Defendant’s donation amounting to KRW 53,836,500,00, which exceeds the above net property, constitutes a property division amount of KRW 53,836,500,000,000,0000.

2. The above determination by the court below cannot be accepted for the following reasons.

(1) In a case where a legal act on a certain real estate constitutes a fraudulent act, in principle, the revocation of the fraudulent act and the cancellation of the registration of the transfer of ownership, etc. However, in a case where the real estate on which the mortgage is established is transferred by a fraudulent act, such fraudulent act shall be deemed to be established only within the extent of the balance obtained by deducting the secured debt amount from the value of the real estate. In a case where the registration of creation of a mortgage is cancelled by repayment, etc. after the fraudulent act, ordering the revocation of the fraudulent act and the restoration of the real estate itself to the extent that the portion which was not initially constituted a joint security of the general creditors would result in a violation of equity, and thus, an order to recover the real estate itself by revocation of the fraudulent act and seeking compensation for the value thereof within the extent of the balance obtained by deducting the secured debt amount from the value of the real estate (see Supreme Court Decision 2002Da41589, Nov. 8, 2002).

(2) According to the reasoning of the judgment of the court of first instance cited by the court below, a legal act constituting a fraudulent act in this case does not constitute a donation of money exceeding a considerable portion of the property division among the gift contracts regarding the instant real estate. In addition, according to the records, in light of the fact that the market price of the instant real estate based on January 2013 near the date of closing the argument of the court of first instance is 240 million won, there is a high possibility that the market price of the instant real estate was higher than at the time of the instant gift contract, even around the date of closing

Therefore, in order to determine the scope of the value that the Defendant is liable for compensation by deeming the portion exceeding the reasonable portion as a fraudulent act among the gift contracts in this case, the lower court should have calculated the value of the portion exceeding the reasonable ratio as the division of property, after deducting the secured debt of the registration of creation of a collateral, which was cancelled from the value of the real estate in this case

(3) Nevertheless, the court below revoked the gift contract of this case only within the extent of 53,836,500 won, which exceeds a reasonable division of property, out of the amount obtained by deducting the secured debt amount of the registration of the establishment of a neighboring mortgage cancelled from the value of the real estate at the time of the gift contract of this case, and ordered the payment of the above amount as compensation for value. In so doing, the court below erred by misapprehending the legal principles on compensation for value arising from the exercise of the right of revocation

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the plaintiff among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.