No transfer of this case may constitute a fraudulent act

The remittance of this case cannot be deemed a fraudulent act

Suwon District Court 2016Na52248

Korea

○○ ○

December 22, 2016

February 9, 2017

1. The plaintiff's appeal is dismissed.

2. The plaintiff shall bear the total costs of the lawsuit after filing the appeal.

1. Purport of claim

In the first place, each gift contract concluded between the defendant and ParkA on March 17, 201, with respect to KRW 5,000,000,000 on March 18, 201, KRW 3,000,000 on March 18, 201, KRW 20,000 on June 5, 201, and KRW 18,680,00 on June 13, 201 shall be revoked.

The defendant shall pay to the plaintiff 46,680,000 won with 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of complete payment.

Preliminaryly, the agreement on the title trust of each depositor with respect to the amount stated in the separate sheet between the defendant and Park Jong-A is revoked. The defendant shall pay to the plaintiff 46,680,000 won and 5% interest per annum from the day following the day on which the judgment became final and conclusive to the day of full payment (the plaintiff submitted an application for modification of the claim and the cause of the claim to add preliminary claim at the trial, but the subject matter of the lawsuit at the revocation of the fraudulent act is the debtor's act of reducing the property and the right to recover it. Thus, the other claim in relation to the legal assessment of the decreased property is a different claim as to the method of attack and defense, and it cannot be deemed that the claim itself differs (see Supreme Court Decision 2004Da10985, 1092, Mar. 25, 2005).

2. Purport of appeal

The judgment of the first instance is revoked. The same judgment as the primary purport of the claim is sought.

1. Basic facts

Account in the name of the defendant on the date of deposit.

March 17, 2011. 5,000,000 won 000-00-00-0000

March 18, 201 18.3,000,000 won 000-00-0000

on June 5, 2011 000,000,000 won (00) 000-00-00-0000

on June 13, 201 000,000 won (00),00-00-00-0000

June 13, 201 000-000-0000 won, June 12, 2011

Total 46,680,000

A. ParkA transferred a building and land located in 00/00 / 00 / 00 / 00 / 000 / 000 / 000 / on March 20, 1998, but did not report the transfer income tax. He did not report the interest on corporate bonds from March 20, 1996 to December 200, and did not report the house rental and real estate sales income.

B. On January 2, 2001, the head of the tax office under the Plaintiff-affiliated tax office notified the imposition of transfer income tax and the payment period on November 30, 2001 to impose global income tax and value-added tax, respectively. However, on November 23, 201, which was the date of the instant lawsuit, the amount of arrears as of November 23, 201, including additional tax, is KRW 00,000,000,000 including the amount of tax (see the details thereof).

(c) ParkA from 00 bank accounts (00-00-0000) to 5,000,000 on March 17, 2011.

Won, on March 18, 201, gold 3,00,000 won, gold 20,000,000 on June 5, 2011, and gold 18,680,000 on June 13, 2011 to the account under the name of the defendant, the spouse, the spouse of which was the agricultural cooperative and 00 bank account as listed in the following table.

D. ParkA shall pay money to the Defendant’s respective accounts as above and then collect money from the above account.

such use was made.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 7 (if any, including each number);

(hereinafter the same shall apply), each entry of evidence of subparagraphs 1 through 4, and the purport of the whole pleadings.

2. Judgment on the parties’ assertion

A. Judgment on the plaintiff's primary argument

1) The plaintiff remitted the sum of KRW 46,680,00 to the account in the name of the defendant who is the wife in excess of his/her obligation. The plaintiff asserts that the contract for each gift should be revoked because it constitutes a fraudulent act by giving money to the defendant, and that the defendant should pay to the plaintiff the above KRW 46,680,000 and the delayed damages.

2) On the other hand, a creditor who claims a fraudulent act and seeks its revocation must specifically assert and prove the facts that the secured claim and the debtor's legal act were committed against insolvency, such as the existence of the debtor's legal act, and that the debtor's intent to respect the debtor's fraudulent act, and that the debtor's act of paying money against the beneficiary is a gift to the debtor. In a case where a creditor who seeks the revocation of a fraudulent act contests the claim that the debtor's act of paying money to the beneficiary, this constitutes a denial of the creditor's assertion, and thus, it should be proved that the above act of paying money constitutes a gift to be recognized as a fraudulent act, and the burden of proof is on the part of the claimant's assertion of a fraudulent act.

As to the instant case, the following circumstances, which can be acknowledged by comprehensively considering the purport of the entire pleadings, i.e., (i) where money is deposited in the account under the name of the Defendant and the balance exceeds KRW 1 million, the ParkA transferred money to the account in the name of the Defendant on the day or following the day of withdrawing or receiving the money, or on the following day, to the account in the name of the Defendant: (ii) it appears to be necessary to track tax authorities or avoid seizure of creditors; (iii) ParkA, who has failed to pay taxes for a long time, was unable to normally make a financial transaction; and (iv) the financial transaction necessary for business is deemed to have been made in the name of the Defendant; and (iii) ParkA transferred money to the Defendant’s 00 bank account on March 17, 201 and on the 18th of the same month.

(No. 1) The Plaintiff’s 2,00,00 won was remitted to the above KimB, but the remaining money was remitted to the 26th of April 201, 200, and the remaining money was consumed on May 16, 2016, and the amount was deposited in the above 10th of June 1, 201 in cash, and there was no evidence suggesting that the Defendant used the above money for 0.5th of June 1, 201, and the Defendant’s 10th of June 1, 201, which was deposited in the above 10th of June 1, 201, which was deposited in the above 10th of June 1, 201, which was deposited in the above 10th of June 1, 201, which was deposited in the above 10th of June 20, 201, which was deposited in the above 10th of June 20, 2011.

B. Judgment on the plaintiff's conjunctive assertion

1) If the Plaintiff cannot evaluate each of the above remittances as a gift, it shall be deemed that ParkA entered into a deposit account title trust agreement between ParkA and the Defendant on the money transferred under the name of the Defendant, and thus, it shall be revoked by fraudulent act, and the Defendant shall be obliged to pay the amount equivalent to the above remittances and the damages for delay thereof to the Plaintiff due to restitution to its original state.

2) The fraudulent act subject to creditor’s right of revocation is a debtor’s property juristic act that causes reduction of the debtor’s whole property in principle, and thus, even if the debtor’s property juristic act is a debtor’s property juristic act, it cannot be deemed a fraudulent act where it does not cause reduction of the debtor’s whole property (see, e.g., Supreme Court Decision 80Da1403, May 25, 1982)

In addition, in the case of remitting money to another person's deposit account, the remittance may be made based on various legal causes, which brings about the substantial decrease in the whole property of the remitter with no specific legal cause for the remittance.

(2) No person may be deemed to have committed a fraudulent act (see, e.g., Supreme Court Decision 2011Da82667, Oct. 11, 2012); and

See Supreme Court Decision 2012Da30861 Decided July 6, 2012, etc.

3) On the other hand, in addition to the fact that Park Do has transferred money to each account in the name of the defendant to use the deposit account in the name of the defendant in a financial transaction necessary for business, and that the defendant is also the defendant, it is reasonable to deem that Park Do and the defendant have agreed to keep and use the money that Park Do has transferred to the defendant in the name of the defendant for the purpose of using the deposit account in the name of the defendant. However, if each of the accounts of this case was used by Park Do under the consent or understanding of the defendant for the management of funds related to the business of Park Do, it cannot be readily concluded that the use relationship of each of the accounts of this case and the money transferred to each of the accounts of this case and the transfer of money in the name of the defendant only with the fact that the transfer of money to each of the accounts of this case was made in the name of the defendant, and that the actual reduction of Park Do

Ultimately, it is necessary to prove that the Plaintiff asserted that the said transfer itself constitutes a fraudulent act, including the right to use the money deposited in each of the instant accounts and the ownership of nationality, specific details and purpose of the transfer, the timing and amount of the transfer money’s authorization, investment, and withdrawal, and the purpose of its use, including whether the transferred money was used by ParkA’s business funds or for its creditors, should be proved to the effect that the money transferred due to the instant transfer was substantially out of the liability property of ParkA. (1) It is insufficient to prove that the said transfer is insufficient to prove that the money was actually out of the liability property of ParkA.

There is no evidence to prove this part of the Plaintiff’s assertion. This part of the Plaintiff’s assertion is rejected.

3. Conclusion

If so, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be dismissed.

As the conclusion is justified, the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

The decision shall be rendered as above.