a fraudulent act to evade compulsory execution by a taxation right holder;

An act of making a monetary donation of the money for transfer of his own real estate to his spouse in excess of his/her obligation, which further deepens the excess of his/her obligation, constitutes a fraudulent act detrimental to creditors.

Article 30 of the National Tax Collection Act

2014 Ghana 33624 Revocation of Fraudulent Act

AA

○ ○

August 20, 2015

September 24, 2015

1. BB (*****************)) and the Defendant respectively revoke the gift agreement of KRW 00,000,000, concluded on February 22, 2011 and that of KRW 00,000,000, concluded on February 25, 2011.

2. The defendant shall pay to the plaintiff 00,000,000 won with 5% interest per annum from the day following the day when this judgment became final and conclusive to the day of complete payment.

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. BB had a construction business conducted at ○○○-dong from January 1, 2006 to November 30, 201. With respect to the said business, the head of the tax office having jurisdiction over the Plaintiff notified BB of KRW 00,000,000 in total of value-added tax and global income tax as listed in the following table, and as BB did not pay it, the current tax amount in arrears is KRW 00,000,000 in total (hereinafter “instant tax claim”).

B. On February 18, 201, BB sold KRW 00,000,000,000 (hereinafter “instant real estate”) to CCC at ○○○○○, 000,000,000 (hereinafter “instant real estate”). CCC, at the request of BB, remitted KRW 00,000,000 out of the said purchase price to an account under the name of the Defendant, the wife of BB on February 22, 2011 (hereinafter “instant financial transaction”).

C. BB was in excess of its obligation at the time of the instant financial transaction and the time of the closing of the argument in the instant case.

[Ground for recognition] Unsatisfy

2. Determination on this safety defense

A. The defendant's assertion

After investigating the property of BB, the Plaintiff seized the land owned by BB and took a disposition of deficit on March 2012, and thus, at that time, became aware of the existence of the fraudulent act and the grounds for its revocation. Therefore, the instant lawsuit filed on September 12, 2014, which was one year after the date of its investigation, is unlawful.

B. Determination

In the exercise of obligee's right of revocation, "the date when the obligee becomes aware of the cause for revocation" means the date when the obligor becomes aware of the fact that the obligor had committed a fraudulent act while knowing that the obligee would prejudice the obligee. This is not sufficient to simply recognize the fact that the obligor conducted a disposal of the property, and it is also required to know the existence of a specific fraudulent act and to know the fact that the obligor had an intent to deceive the obligor. On the other hand, the burden of proof regarding the degree of limitation period lies in the party to the lawsuit for revocation (see Supreme Court Decision 2007Da63102, Mar. 26, 2009).

In full view of the purport of the argument as a result of the order issued to submit financial transaction information to △△ Tax Office, the Plaintiff-affiliated Tax Office attached ○○○○○○○-gun, which is the ownership of BB on February 10, 2012, and attached one parcel of land, ○○○-ri, 00-0, and one parcel of land from February 15, 2012. The said value-added tax and global income tax were written off from February 15, 2012 to May 6, 2013. According to the provision on the collection of national tax, the fact that the delinquent taxpayer’s property should be investigated in advance is recognized.

However, according to the evidence mentioned above and Gap evidence No. 4 (including the provisional number), the following circumstances are acknowledged. In light of this, it is insufficient to readily conclude that the above facts alone are sufficient to conclude that the plaintiff was aware of the cause of revocation of the fraudulent act before September 12, 2013, which was from September 12, 2014 to September 12, 2013, by which the plaintiff filed the lawsuit in this case, and there is no other evidence to acknowledge it. The defendant's assertion is without merit

① Since the instant financial transaction was directly transferred from the CCC account, the purchaser of the instant real estate, to the Defendant’s account without going through the BB account, it is difficult to deem that the Plaintiff became aware of the existence of the said financial transaction solely based on the property inquiry of the delinquent taxpayer BB’s real estate and financial assets conducted prior to the disposition of deficit.

② On February 10, 2012, the Plaintiff took measures, such as attaching the land owned by BB, which was identified through the above BB’s property inquiry. Afterwards, the Plaintiff received a written statement from CCC, the purchaser of the instant real estate, around December 2013, to recognize the instant financial transaction. Accordingly, the Plaintiff was resulting in the instant lawsuit.

3. Judgment on the merits

A. According to the above facts acknowledged, the instant taxation claim was already established before February 22, 2011, which was the starting date of the instant financial transaction, and thus, can be deemed as the preserved claim in the instant lawsuit seeking revocation of fraudulent act.

B. BB, while selling the instant real estate owned by it under excess of the debt, requested CCC to transfer the purchase price directly to the account in the name of the Defendant, the buyer, and accordingly, the fact that the instant financial transaction was conducted is as seen earlier. In light of the foregoing, it is reasonable to view BB as the amount that BB donated to the Defendant according to the instant financial transaction. This constitutes a fraudulent act that deepens the debt excess status of BBB, and the Defendant’s bad faith is recognized as the beneficiary.

C. If so, the contract of donation between BB and the Defendant on the above KRW 00,000 shall be revoked as a fraudulent act. Accordingly, the Defendant shall be liable to pay the Plaintiff the amount of KRW 00,000,000 and the damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day following the day when the judgment became final and conclusive to the day of full payment.

4. Conclusion

Thus, the plaintiff's claim of this case is reasonable and acceptable.