Seoul Central District Court-2015-Ga group-5352 (2016.07.07)

Revocation of Fraudulent Act

In excess of the debt, the act of donation made by Nonparty 1 to his wife and the Defendants, who were in possession of the instant real estate was a fraudulent act and presumed to be a beneficiary’s bad faith.

Article 30 of the National Tax Collection Act

2016Na47538 Revocation of Fraudulent Act

Korea

AA, etc.

Seoul Central District Court 2015Kadan518352

June 8, 2017

1. Revocation of a judgment of the first instance;

2. To revoke a gift agreement concluded on October 1, 2013 with respect to real estate stated in the separate sheet between the Defendants and thisA.

3. Of the real estate listed in the separate sheet, Defendant NewB shall implement the procedure for registration of cancellation of ownership transfer registration completed under No. 16486 of receipt on October 8, 2013 with respect to the shares of 4/10, the shares of 3/10, and the shares of 3/10, each of these shares, with respect to the respective shares of 3/10.

4. All costs of the lawsuit are borne by the Defendants.

The place of the Gu office and the place of the appeal shall be the same as the place of the Gu office.

1. Basic facts

The reasoning for this part of this Court is as stated in Paragraph 1 of Article 420 of the Civil Procedure Act, except for the dismissal of part of the judgment of the court of first instance as follows. Therefore, this Court shall accept it as it is in accordance with the main sentence of Article 420

Pursuant to the judgment of the first instance court, the 2nd 15 to 3rd 4th am as follows: 2) this am 10 billion won from KimE on September 30, 2013, 2013, 30 million won on October 21, 2013, 71, 436 won on October 31, 2013, 200. 3rd 14th am 14 through 17th am 5th am 10th am 6th am 10th am 7th am 10th am 10th am 5th am 10th am 10th am 6th am 10th am 10th am 10th am 6th am am 10th am am 16th am am 10th am am 10th am 10th am 16th am am.

2. The parties' assertion

A. The plaintiff's assertion

This case’s forest land was donated to the Defendants by this case’s forest land in excess of debt, and the Defendants were well aware of this circumstance as the wife or children of this case’s forest land. Thus, the gift of this case’s forest land should be revoked as a fraudulent act.

B. The defendants' assertion

At the time of donation of the forest land of this case, thisA was not in excess of its obligation, and even after the said donation, it had been capable of paying the transfer income tax of this case, and thisA had no intention to harm, and therefore, the act of donation of the forest land of this case is not a fraudulent act.

3. Determination

(a)the existence of preserved claims;

(1) Although it is necessary to deem a claim to be protected by the obligee’s right of revocation as a matter of principle, there is a high probability that the above legal relationship has already arisen at the time of the fraudulent act, and that the claim is established in the near future. In fact, where a claim has been established as a result of realizing the possibility in the near future, such claim may also become a preserved claim of the obligee’s right of revocation. Such legal principle applies to a taxation claim, and the transfer income tax claim subject to a fraudulent act includes additional charges and increased additional charges arising from the time of closing argument in the fact-finding court after the fraudulent act until the time of closing argument (see, e.g., Supreme Court Decisions 200Da37821, Mar. 23, 201; 2006Da6753, Jun. 29, 2007; 2006Da14440, which is a high probability that the Plaintiff’s right of revocation was established in the future based on the instant legal relationship.

B. Whether the fraudulent act was established

(1) Whether the debtor is insolvent

(A) In order for a debtor to become a fraudulent act, the act of disposal of the debtor's property shall cause a decrease in the debtor's whole property and in short of joint security for claims (see, e.g., Supreme Court Decision 2002Da23857, Sept. 24, 2002). In other words, the debtor's small property should be more active property than active property (see, e.g., Supreme Court Decision 2002Da69026, Apr. 27, 2001; Supreme Court Decision 2009Da47852, Oct. 29, 2009). In addition, in determining whether the debtor's debts exceed the debtor's property, the issue of whether the debtor's insolvency is insolvent should be determined at the time of the fraudulent act, including the debtor's debts, if there is a high probability that the debts are established in the near future based on the legal relations, and the debtor's debts are actually established in the near future (see, e.g., Supreme Court Decision 2013A.

(B) According to the health stand, each of the evidence mentioned above, and each of the statements and arguments stated in Gap Nos. 11 through 13 (including paper numbers) as to the instant case, thisA’s active and small property at the time of donation of the instant forest land is as follows.

(i)affirmative property;

① Balance claim KRW 3.95 billion due to a sales contract for the same real estate (i.e., total purchase price of KRW 4.05 billion - down payment of KRW 100 million paid on September 30, 2013)

The plaintiff asserts that this part of the plaintiff's assertion is that, since it is expected that the same real estate should be separated from the property held by thisA's responsible property, this part of the transfer income tax in this case is also imposed with the purchase price of the same real estate as KRW 4 billion, and as long as the transfer income tax in this case is deducted from the debt 2.8 billion with respect to the same real estate, it is difficult to view that this part of the plaintiff's assertion is without merit, since this part of the real value of the same real estate is limited to the purchase price actually received by thisA, so long as this part of the transfer income tax in this case is deducted from the small property as follows.

(2) A deposit claim of 115,134,456 won or more in total shall be 4,065,134,456 won or more.

2) Petty property

① The Defendants of the instant capital gains tax amounting to KRW 701,407,430, and KRW 237,624,98,00,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00

The issue of debtor's insolvency is as seen earlier at the time of the fraudulent act. However, even if at the time of the act of disposal, even if the debtor's act was prejudicial to creditor at the time of the act of disposal, if the debtor restores his own ability or reduces his obligation and thereby does not prejudice creditor at the time of the exercise of the right of revocation, the creditor's right to revocation is extinguished as there is no need to preserve the responsible property by the creditor's right of revocation (see, e.g., Supreme Court Decision 2007Da63102, Mar. 26, 2009). However, according to the purport of the statement and arguments in evidence No. 13 as well as evidence No. 13, this part of the defendants' assertion is without merit.

(2) Liabilities of 2.8 billion won with respect to the same real estate.

㉮ 상도동 부동산에 설정된 근저당권 �채권최고액 합계 3,471,000,000원의 피담보채무 2,670,000,000원(당사자 사이에 다툼이 없다) �

(C) 50,000,000 won due to the occurrence of chonsegwon 80,00

③ Defendants of KRW 4,095,407,430, total amounting to KRW 594,000,000 against Defendant NewB, assumed the obligation to return the lease deposit amounting to KRW 50,000,000 from the purchaser and KimE of the same real estate. Considering the above, Defendant asserted that the above obligation to return the lease deposit cannot be included in the small property.

According to the purport of the evidence No. 7 and the whole pleadings, it is acknowledged that the sales contract of this case concerning the commercial real estate between Lee Young-chul and Kim Young-han entered into an agreement to pay the balance of the sales price of KRW 4,05,000,000,000 in addition to the loan amount and the lease deposit. The facts of the actual payment amount of KRW 1,171,552,436 (Evidence No. 8) include the fact that KimE paid KRW 370,000,000 in cash (it is difficult to recognize that the above fact alone was actually paid KRW 370,000,000) are as seen earlier, and therefore, the obligation to return the lease deposit should be calculated as a small property separate from the sales amount. Accordingly, this part of the Defendants’ assertion is without merit.

(C) Determination of the defendants' assertion as to the calculation of active property

The Defendants asserted that, considering that thisA’s investment of KRW 300 million through Blust Investment Co., Ltd. on January 2002, 48,670 shares of the United States, and that the per share value of GIST is USD 8-15 US dollars, the value of the said shares should be included in the active property of thisA, since the said shares amounting to approximately KRW 467,232,00,00.

An insolvent is a requirement for revocation of a fraudulent act that means that a debtor has no ability to repay. In particular, when it is impossible to expect voluntary repayment, repayment through compulsory execution should be taken into account. Therefore, it should be an important factor to determine whether a debtor has the ability to repay. Therefore, in the case of a property which is easy to be disposed or consumed, it should be limited to cases where there are special circumstances that creditors could easily ascertain the existence of such property and consider it as an object of its execution, but it can be viewed as an active property of the debtor (see, e.g., Supreme Court Decision 2004Da2564, Feb. 106). Even if thisA holds stocks of the United States of America, even if this is held by a creditor, the plaintiff, as a creditor, cannot easily grasp the existence of such property, and even if this is understood, there is no data to deem it easy to recognize it as an active property of this case. Therefore, the above assertion by the Defendants is difficult to recognize it as an active property of this case.

(D) Sub-committee

Posive property KRW 4,095,407,430 (= KRW 701,407,430 + KRW 2,800,00,000 + KRW 594,00,000) exceeds positive property KRW 4,065,134,456 (= + KRW 3,950,00,000 + KRW 115,134,456). ThisA was in excess of its obligation at the time of the instant donation.

(2) If an obligor donated his/her property to another person under excess of his/her obligation, such an act constitutes a fraudulent act, barring special circumstances (see Supreme Court Decision 2006Da11494, May 11, 2006).

(see, e.g., a large amount of transfer where thisA sells the same property as seen earlier.

It was sufficiently anticipated that income tax will be imposed, and on the following day, the Defendant’s forest land of this case

The fact that this case’s forest land was donated to the public, and at the time of donation, this case’s forest land was in excess of its obligation. The Defendants

the family members of thisA are expected to have been fully aware of such circumstances.

The act of donation of the forest land of this case can be sufficiently recognized as the intention of this AA's death.

The defendants' bad faith constitutes fraudulent act against the plaintiff, and the defendants' bad faith is presumed.

(3) Methods of reinstatement

Therefore, the Plaintiff, the creditor, is the gift contract concluded on October 1, 2013 with respect to the instant forest.

Defendant NewB due to its restitution, 4/10 shares in

JCC and ED shall own each of them with respect to their respective 3/10 shares in the forest of this case to thisA.

There is an obligation to implement the procedure for registration of cancellation of right transfer.

4. Conclusion

Thus, the plaintiff's claim of this case against the defendants is justified.

In addition, the decision of the first instance court with different conclusions is unfair, and thus, the plaintiff's appeal is accepted and revoked.

We decide to do so as per Disposition.