If a debtor has donated his/her own property to another person under excess of his/her obligation, such act would constitute a fraudulent act unless there are special circumstances.

In the revocation of a fraudulent act, the subjective requirement means recognizing the fact that the debtor's claim cannot be fully satisfied due to the decrease in assets due to the debtor's act of disposal of assets and the lack of joint security for claims or the lack of joint security already in a state of shortage.

2013 Ghana 10874 Revocation of Fraudulent Act

Korea

Section AA

April 3, 2014

May 1, 2014

1. The contract of donation concluded on August 21, 2012 between the Defendant and the Trade UnionB on gold OO won shall be revoked.

2. The defendant shall pay to the plaintiff an amount calculated by the ratio of 5% 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. Basic facts

The following facts may be acknowledged, either in dispute between the parties, or in full view of the purport of the arguments as a whole, as follows: Gap evidence 1, 2, 3, 4-1 through 4, 5-1, 2, 6, 7, 8, 9-1 through 6, Eul evidence 2-1, 3-1, 2, 3-1, 2, 3-2, 3, 4-1, 5-2, 3, 5-1, 3, 6-1, 3, 6-1, 2, 3, 3, 3, 7, 8-12, 13, 14, and 17-2, 14, and 17-1 through 5-5, and the result of the inquiry into the facts with respect to the director of the tax office in this court:

(a) Claims for preservation;

1) On December 13, 201, NoB transferred O-dong 24-117 ground buildings and 272-10 land at O-si on December 13, 201, and made a preliminary return of transfer income tax on February 28, 2012, but did not pay the said transfer income tax.

2) Although the director of the tax office of the tax office notified NoB of the time limit for payment as of December 31, 2012, that the said time limit for payment was within the OO of the transfer income tax for the year 201, he did not pay the said transfer income tax.

3) The foregoing capital gains tax added additional charges and became an OO member in total as of July 12, 2013.

B. Delivery of the check of this case

" 1) 노BB는 2012. 8. 21. 국민은행 계좌에서 현금 OOOO원, 수표 OOOO원권 3매, OOOO원권 1매, 합계 OOOO원을 출금하여 배우자인 피고에게 건넸다(이하이 사건 수표교부'라 한다). 피고는 2012. 8. 21. 위 수표지급을 요청하여 OO시 OO동 291-9 지상 단독주택 신축공사건설 도급계약의 선금 명목으로 정CC의 우체국 계좌에서 OOOO원을 송금하였다.", 2) 피고는 OO시에 노BB를 대신하여 2012. 8. 29. 지방세 OOOO원, 2012. 9. 26. 지방세 OOOO원, 2012. 10. 25. 지방세 OOOO원, 2012. 11. 27. 지방세 OOOO원, 2012. 12. 21. 지방세 OOOO원, 합계 OOOO원을 냈다.

(c) the financial status of the unionB;

1) On August 20, 2012, prior to the issuance of the instant check, NoB agreed to designate and sell OB No. 116 EE No. 1003, 106, and 1003 to D on August 20, 2012, OB signed that OB shall succeed to D Co., Ltd. and shall be paid the remainder of OB on the date of the contract. On August 20, 2012, NoB sold OB No. 1394, FF No. 103 to D Co., Ltd., Ltd., and, at the time of the delivery of the instant check, OB received the remainder of the deposit return obligation and the remainder of the remainder of the deposit under the agreement that it received from OBD Co., Ltd., Ltd., 2000, O204 on the date of succession to the contract.

2) At the time of delivery of the check of this case, TradeB had a debt equivalent to the gold OOE in addition to the above transfer income tax.

2. The parties' assertion

A. The plaintiff's assertion

At the time, Trade UnionB, which bears a debt equivalent to the above capital gains tax against the Plaintiff, donated the instant check to the Defendant on August 21, 2012 and the amount equivalent to its face value to the Defendant. As such, the Plaintiff may exercise the right of revocation against the Defendant and seek restitution.

B. Defendant’s assertion

1) NoB is not a donation of gold OO to the Defendant, but is a delivery of the instant check in lieu of local taxes to be borne by TradeB.

2) NoB had not exceeded the obligation at the time of delivery of the instant check to the Defendant.

3) Before the delivery of the instant check, the Trade Union and the Defendant were believed to have filed a claim for correction against the No.B, claiming the correction of the instant transfer income tax, and were waiting for the decision on the claim for correction. The Trade Union and the Defendant did not have any intention to prejudice the creditor.

3. Determination

A. Establishment of obligee's right of revocation

1) Determination as to the cause of claim

If the obligor donated his/her own property to another person in excess of his/her obligation, such act constitutes a fraudulent act (see, e.g., Supreme Court Decision 97Da57320, May 12, 198). In revocation of a fraudulent act, the intent to revoke the fraudulent act refers to recognizing the fact that the obligor’s disposal of the debtor’s property is so reduced that the obligor’s joint security of claims is insufficient or that the joint security of claims is less than one story (see, e.g., Supreme Court Decision 2012Da107198, Apr. 11, 2013). Accordingly, according to the foregoing facts, the Plaintiff was aware that the obligor would not be able to fully satisfy the obligee’s claims due to the decrease in assets by the obligor’s act of disposal of the debtor’s property (see, e.g., Supreme Court Decision 201Da107198, Apr. 11, 2013).

2) Determination on the bona fide defense

In accordance with each of the statements in No. 8-1 through No. 21, No. 8-21, the No.B or the Defendant had no intent to prejudice the No.B’s creditors at the time, the fact that the No.B filed a claim for correction of the transfer income tax of this case in the No. 8-2 book prior to the issuance of the instant check is recognized, but such circumstance alone is insufficient to recognize that the No.B or the Defendant was unaware of the No.B’s failure to harm the No. 2’s creditors, and there is no other evidence to acknowledge otherwise. Accordingly, the Defendant’

(b) Methods and scope of reinstatement;

Ultimately, the act of donation by the delivery of the check of this case shall be revoked, and the defendant shall be obligated to pay to the plaintiff the amount of delay damages calculated at the rate of 5% per annum under the Civil Act from the day following the day when the judgment becomes final to the day when full payment is made.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted for the reasons, and it is so decided as per Disposition.