If a debtor has provided his/her property to a certain creditor as payment in kind or as a security, he/she would become a fraudulent act.

Where the debtor's assets are insufficient to fully repay the debtor's debts, if the debtor provided his/her assets as payment in kind or as security for a certain creditor, it is prejudicial to the interests of other creditors, and it is a fraudulent act in relation to

§ 406. Revocation of Civil Code

2013 Gaz. 106656 Maz.

Korea

Kim 00

October 28, 2014

on 13, 2015

1. As to the building of the whole part of the real estate listed in the separate sheet:

A. The sales contract concluded on November 25, 2010 between the defendant and Kim 00 was revoked, and B. The defendant will implement to Kim 00 the procedure for the registration of cancellation of ownership transfer, which was completed as the Seoul Northern District Court’s Northern Branch Registry No. 10092, Dec. 9, 2010.

2. The plaintiff's remaining claims against the defendant are dismissed.

3. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

As to the real estate listed in the attached list, the sale and purchase concluded on November 25, 2010 between the defendant and Kim 00

The contract is revoked, and the defendant revoked the contract to Kim 00 on December 9, 2010.

The procedures for the cancellation registration of transfer of ownership completed under section 10092 shall be implemented.

1. The 19 residents, such as Seoul 00-Gu 00-dong 00, 354-8, 354-12, who had resided in the above 354-12 multi-households, agreed to remove the above multi-households and construct multi-households and apartments on the ground (hereinafter “the construction of this case”) to subcontract to Kim 00, and to substitute the 11 household out of the multi-households and the 2 household out of the apartment units (201, 204) to be newly constructed in lieu of the payment of the construction cost.

B. On April 7, 2008, with respect to the building of the section for exclusive use among the real estate listed in the separate sheet (hereinafter referred to as “instant 204”), the registration of ownership preservation (ratio 1/14) was completed in the name of Kim 00, Kim00, L00, 00, 00, 000, 000, 000, 000, 000, 00, 000, 00, 100, 1/100, 1/100, hereinafter referred to as “Y 1/100, 1/14, 200) by entrustment following an application for a provisional disposition by 00 on April 7, 2008. Kim 00 completed the registration of ownership transfer under the name of the Defendant after completing the registration of ownership transfer due to a payment agreement on December 2, 205, and thereafter, the Defendant had the ownership transfer registered under the title of the instant section for exclusive use.

D. On August 5, 2011, the Defendant transferred 00, 00, 00, 00, 100, 100, 100, 200, 100, 200, 354-12, 779.8m2, 81.78/150 of the aggregate of the site in the instant subparagraph 204m2 from among 00, 00, 354-12, and 779m2, 200 (hereinafter referred to as “loss, etc.”) on the ground of an accord and satisfaction agreement on July 20, 201, and completed the site registration on August 5, 2011.

E. As of April 2, 2013, Kim 00 is in arrears with national taxes as follows (hereinafter “instant taxation claims”).

[Ground of recognition] Facts without dispute, Gap 1 through 8, 12 through 16, and the purport of the whole pleadings

2. Determination as to the establishment of fraudulent act and the scope of restitution

A. Determination as to the building of the section of exclusive ownership No. 204

Where the obligor’s property is insufficient to fully repay the obligor’s obligation, barring any special circumstance, if the obligor provided the obligor’s property to a certain obligee as payment in kind or as a collateral, it would prejudice the interests of other obligees, and barring any special circumstance, this would be a fraudulent act in relation to other obligees, and the same applies to cases where the obligor’s property provided as payment in kind or as collateral is not the sole property of the obligor or is below the obligor’s value of the claim (see Supreme Court Decision 2008Da85161, Sept. 10, 2009). The instant tax claim is established prior to the conclusion of the instant sales contract claiming that the Plaintiff is a fraudulent act. As such, the obligee’s right of revocation may become the obligor’s right of revocation. As seen earlier, inasmuch as Kim00 had already been secured due to the shortage of joint collateral due to excess of the obligation, it constitutes a fraudulent act under the pretext of payment in kind for loans to the Defendant, who is a dependent, and thus, constitutes a beneficiary of the instant sales contract.

Therefore, the sales contract concluded between Kim 00 and the defendant on the building of the former part of 204 of this case shall be revoked as a fraudulent act, and the defendant shall be obligated to implement the procedure for cancellation of ownership transfer registration on the building of the above section of exclusive ownership to Kim 00.

B. Determination on the right to a site under subparagraph 204 of this case

On November 25, 2010, the Plaintiff alleged that Kim 00, on November 25, 2010, sold not only the building of the exclusive ownership but also the right to the site of this case, which is the object of the site ownership. Thus, the Plaintiff sought cancellation of the sales contract of the above site ownership and cancellation of the transfer of ownership registration. However, there is no evidence to acknowledge it.

Rather, on December 9, 2010, the Defendant completed the registration of ownership transfer concerning the building of the section for exclusive use in this case on December 9, 201, and transferred 81.878 percent of the total amount due to the payment agreement from 00, etc. on August 5, 2011 to July 20, 201, and completed the registration of ownership transfer for the building of the section for exclusive use in this case on July 20, 201. As seen earlier, if the facts are the same, the sales contract of this case was only subject to the building of the section for exclusive use in this case on December 204, and it is reasonable to deem that the land of this case was not included in the land of this case. Thus, since the land of this case was restored to the above fraudulent act on August 5, 2011, the property liable for the creditors of

[The right to use site of a sectional owner shall be subject to the disposition of his section of exclusive ownership, and the sectional owner shall not dispose of the right to use site separately from his section of exclusive ownership (Article 20(1) and (2) of the Act on the Ownership and Management of Aggregate Buildings), but if the section of exclusive ownership and the right to use site cannot be treated together with the right to use site due to its nature, it is possible to separate the section of exclusive ownership and the right to use site. In light of the fact that the subject of the sales contract of this case asserted by the plaintiff as fraudulent act was only the building of the section of exclusive ownership No. 204 and the right to use site of this case was not included in the subject matter, even if the right to use site of this case was established later, it shall not be deemed that the section of exclusive ownership and the right to use site should be treated together even if the right to use site was revoked by fraudulent act as in this case. Thus, the right to use site of this case cannot be included in the subject matter of restitution

3. Conclusion

Therefore, each claim of the plaintiff is justified within the scope of the above recognition, and each remaining claim is dismissed as it is without merit. It is so decided as per Disposition.