It constitutes a fraudulent act to donate cash received from the sale price after the sale of the instant real property to the spouse.

In the absence of proof as to the assertion that KimA, a spouse of the defendant, was not a debt excess, the cash donation in this case constitutes a fraudulent act.

Article 30 of the National Tax Collection Act

2013 Gohap72722 Revocation of fraudulent act

Korea

Ansan 00

March 19, 2014

April 16, 2014

1. The cancellation of each cash donation contract of KRW 00 billion between the defendant and KimA on November 17, 2009, and KRW 00,000,000, concluded on November 30, 2009.

2. The defendant shall pay to the plaintiff 1 billion won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

3. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Facts of recognition;

A. Formation of a taxation claim

1) On September 11, 2009, KimA sold to BB Co., Ltd. 00:00:00:00; 000-0; and 000-0; and each of the above land’s above-ground factories (hereinafter referred to as “instant 00 real estate”) for sales amount of KRW 0 billion.

2) The KimA did not pay the transfer income tax following the transfer of the instant 00 real estate. The head of Sung Dong Tax Office decided and notified on April 6, 2010 to Kim Dong Tax Office the transfer income tax amount of KRW 00,000,000 on April 30, 2010, but Kim Dong Tax Office did not pay the said transfer income tax by the closing date of pleadings in this case.

3) In addition, on September 25, 2009, KimA sold to thisCC 00 00 dong 000 dong 000-00 and 000 dong 00-00 and above-ground buildings (hereinafter referred to as “instant 00 dong real estate”) for purchase price of KRW 0000,000.

4) KimA did not pay the transfer income tax following the transfer of the instant 00 real estate. The head of Sungdong Tax Office decided and notified on December 1, 2010 to Kim Dong Tax Office as transfer income tax of KRW 00,000,000 on December 31, 2010, but Kim Dong Tax Office did not pay the said transfer income tax by the closing date of pleadings in this case.

(b) Cash donation to the defendant by KimA;

The KimA remitted the total of KRW 00 billion on November 17, 2009 and KRW 000 billion on November 30, 2009 to the Defendant’s account as his wife, out of the purchase price of the instant 00 real estate.

(hereinafter referred to as "each gift of this case")

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 4 (including branch numbers for those with additional numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination

(a)the existence of preserved claims;

1) In principle, a claim protected by the obligee’s right of revocation needs to be protected prior to the occurrence of an act that can be viewed as a fraudulent act. However, there is a high probability that at the time of the fraudulent act, there has already been a legal relationship that serves as the basis for the establishment of the claim, and that the claim should be established in the near future. In the near future, where the probability is realized and a claim has been created because it has been realized in the near future, the claim may also become a preserved claim (see, e.g., Supreme Court Decision 2006Da66753, Jun. 29, 2007).

2) Regarding whether the transfer income tax claim following the transfer of 00 real estate in this case is a claim that can be protected by the obligee's right of revocation, the Plaintiff's above taxation claim has been specifically determined by the taxation authority's disposition of transfer income tax after the donation of November 30, 2009. However, in light of the following: (a) KimA's transfer of 00 real estate owned by it prior to the above donation to thisCC, the legal relationship which serves as the basis for the occurrence of the taxation claim has already been established; (b) KimA was in insolvent at the time of the above donation; (c) KimA did not pay all the transfer income tax after the transfer of 00 real estate in this case; (d) there was a high probability of establishing the near future taxation claim; and (e) it can be deemed that the above taxation claim has been established as a preserved claim for the obligee's right of revocation.

B. Establishment of fraudulent act

1) Whether the KimA was in excess of its obligation

A) At the time of the donation made on November 17, 2009 of this case, KimA’s financial status was in excess of the debt amount (0,000,000,000) that exceeds the positive property (0,000,000), as shown below.

B) At the time of the donation made on November 30, 2009 of this case, the financial status of the KimA as of November 30, 2009 exceeds the obligation amount exceeding the positive property (0,000,000,000) as shown below.

The former had been.

C) As to this, the Defendant alleged that the total sum of the small assets of KimA at the time of each of the instant donations was considerably less than the market price of the above 00:00 00 :00 :00 :00 00 :00 ; as the result of the appraisal as of January 15, 2008, was the appraised value at the time when the above land was designated as a management area, and thus, the above appraisal result is inappropriate as the data for market price calculation. However, the above appraisal result is insufficient to acknowledge the Defendant’s assertion, and there is no other evidence to acknowledge it. Therefore, the Defendant’s assertion is without merit.

2) Whether each of the instant donations constitutes fraudulent act

A) As above, KimA made each donation of KRW 00 million on November 17, 2009 and KRW 000 billion on November 30, 2009 to the Defendant, the wife, in excess of its obligation. Unless there are special circumstances, each of the donation in this case constitutes a fraudulent act committed by the intent to prejudice other creditors, including the Plaintiff, and in light of the relationship between the obligor KimA and the Defendant, and the financial status of KimA, it is presumed that KimA was prejudicial to the Plaintiff as the obligee at the time of each of the donation in this case, and further, it is presumed that the Defendant, the beneficiary, was aware that each of the donation in this case was detrimental to the Plaintiff as the obligee at the time of each of the donation in this case.

B) As to this, the Defendant is originally owned by the Defendant, and thus, each of the instant donations does not constitute a fraudulent act, but there is no evidence to acknowledge it, the Defendant’s above assertion is without merit.

C. Sub-decision

Therefore, each of the instant gift contracts concluded between KimA and the Defendant shall be revoked in its entirety as a fraudulent act, and the Defendant is obligated to pay damages for delay at the rate of 5% per annum under the Civil Act from the day following the day when the judgment became final and conclusive to the day when full payment is made with respect to the amount of KRW 00 million and the damages for delay.

3. Conclusion

Thus, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

shall be ruled.