It is difficult to see that the debtor was aware of the fact that the debtor entered into a real estate sales contract in order to evade tax liability at the time of the fraudulent act, and thus it is difficult to recognize his intention.

Inasmuch as a sales contract constitutes an act of selling real estate, which is substantially the only property of the non-party company, and changing it into money easily consumed, barring special circumstances, it constitutes a fraudulent act against the creditor. However, it is difficult to deem that the beneficiary was aware of the fact that the debtor entered into a real estate sales contract to evade tax liability at the time of fraudulent act

Article 30 of the National Tax Collection Act

2013 Gohap 201435 Revocation of Fraudulent Act

Korea

KimA

August 13, 2013

September 5, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

1. The sales contract concluded between the defendant, KimB, and ChoCC on April 25, 2012 is revoked.

2. The Defendant will implement the procedure for registration of cancellation of ownership transfer registration, which was completed on April 26, 2012 by the receipt No. 9878, with respect to the real estate listed in the separate sheet to KimB and ChoCC.

1. Basic facts

“A. The Plaintiff has a total amount of the OOOB’s national tax claims (hereinafter referred to as “the instant national tax claims”) against the KimB as listed below, referring to 2 pages of the decision.”

B. On March 27, 2012, the director of the tax office of North Daegu, which belongs to the Plaintiff, seized the share of the ownership of KimB in the real estate listed in the separate sheet (hereinafter “the instant real estate”) with the preservation claim against the above KimB as the national tax claim, but the Plaintiff filed a civil petition for the seizure of the real estate by KimB, and the Plaintiff received only the payment plan without receiving national taxes and released the attachment on April 17, 2012.

C. On April 25, 2012, KimB and ChoCC sold to the Defendant the sum of 1/4 shares in KimB, 1/8 (Provided, That in the case of the instant real estate 2, KimB shares 1/8, and 1/16, KimB shares in the case of the instant real estate) among the instant real estate to OBO (hereinafter “instant sales contract”), and on the ground of this, the registration of ownership transfer was completed on April 26, 2012 by the Daegu District Court, Daegu District Court No. 9878, the receipt on April 26, 2012, and (d). At the time of the instant sales contract, KimB and ChoCC were in excess of their respective obligations.

(affirmative Property: OO-gu OO-dong 1269 EE apartment 102 Dong 301 (OOO) shares

PO also shares among the forest land (OOO) 132-5 forest land (OOO) in the OO-gun KimB, the shares of the real estate in this case among the shares of the O-gun KimB, and the shares of the OCC (OO)

KimB: A total of OOO

(OOOEX3/13 + OOOEx 1/2 + OOOE X2/3)

CCC: A total of OOO

(OOOx2/13 + OOOOx1/4 + 225,00,000 wonx1/3)

Small Property: National Tax Debt KimB: OOB

SCC: OOOO, etc.)

[Ground of recognition] A without dispute, entry (including paper numbers) in Gap evidence Nos. 1 through 18, entry (including paper numbers) in Eul evidence Nos. 1 to 10, testimony in witness F, and purport of the whole pleadings

2. The occurrence of the right to revoke the fraudulent act;

A. Formation of preserved claims

According to the above facts, KimB is obligated to pay the national tax to the Plaintiff, KimB, and ChoCC, and it can be recognized that the instant national tax claim against the Plaintiff, KimB, and ChoCC was established before the date of the instant sales contract ( April 25, 2012), and thus, the instant national tax claim is the preserved claim of the obligee’s right of revocation.

B. Whether a fraudulent act was committed

1) Summary of the defendant's assertion

On March 27, 2012, the director of the tax office having jurisdiction over the plaintiff's North Daegu District Tax Office attached KimB's share among the real estate in this case, and received a payment plan, and released the above attachment on April 17, 2012.

Since the removal of attachment by the North Daegu District Tax Office consented to the disposal of the real estate of this case, the sales contract of this case cannot be deemed to reduce the liability property or to harm the creditor.

2) Determination

Unless there exist any special circumstances, an act of a debtor in excess of his/her obligation to sell and change his/her own real estate into money easily for consumption is a fraudulent act against a creditor, and the debtor’s intent of deception is presumed (see, e.g., Supreme Court Decisions 66Da1535, Oct. 4, 1966; 2009Da67252, Dec. 10, 2009; 2010Da41850, Jul. 26, 2012).

Inasmuch as KimB and ChoCC concluded the instant sales contract with the Defendant in excess of the debt, the liability assets for the general creditors who are still insufficient, barring any special circumstance, the instant sales contract constitutes fraudulent act in relation to other creditors, including the Plaintiff, and thus, KimB and ChoCC is presumed to be a beneficiary’s bad faith.

According to Gap evidence Nos. 8-I, 2, 3, and 4, the director of the tax office in North Daegu, which belongs to the plaintiff, seized the shares owned by KimB on March 27, 2012, and the attachment was cancelled on April 17, 2012. However, it is insufficient to recognize that the plaintiff consented to the disposal of the real estate in this case, and there is no other evidence to acknowledge it otherwise.

Even if the Plaintiff consented to the disposal of the instant real estate as alleged by the Plaintiff, considering that the obligee’s right of revocation is a system to return the property deviating from the debtor’s general property to the beneficiary for all creditors in order to preserve the debtor’s property held as joint collateral for the claim, even if the Plaintiff, which is only one of the creditors, allowed the disposal of the instant real estate, it cannot be deemed that the instant sales contract does not constitute a fraudulent act. Therefore, this part of

C. Whether the defendant acted in good faith

1) Summary of the Plaintiff’s assertion

Considering the following circumstances, the Defendant is maliciously aware of the fact that the instant sales contract would result in the shortage of common security between KimB and ChoCC at the time of the instant sales contract, and thus constitutes a bad faith.

① Around June 2011, the Defendant had planned acquisition of the instant real estate by means of the purchase, etc. of the shares in thisGG concerning the instant real estate from LeeGG, and, when acquiring the instant real estate and securing a majority of co-ownership shares, there was a benefit to make a decision independently on the management of the instant real estate to the Defendant.

② The sales price of the instant sales contract is 52% only based on the officially announced land price (based on publicly announced land price: OOO won), and thus, the sales price was set at low.

③ The instant sales contract was fully paid on the date of the contract.

④ According to the entry of the entire certificate of the registered matters of the instant real estate, provisional attachment, provisional injunction, etc. on the instant real estate have been repeatedly registered and cancelled, and the Defendant was able to see the debtor KimB and ChoCC’s credit standing.

⑤ The KimB and the Defendant acquired a 11-5 site from the OO-gu OOO at OO, and continued to engage in a continuous transaction relationship since 2008 when the Defendant entered into a lease agreement on the above ground building.

2) Summary of the defendant's assertion

Considering the following circumstances, the Defendant did not know that the instant sales contract was a fraudulent act at the time of the instant sales contract.

① The instant sales contract was concluded by brokerage of the FF, a broker, and the sales amount is also reasonable.

② The Defendant entered into the instant sales contract with a seller and a broker to complete the registration of transfer by resolving all interference with the exercise of rights, such as provisional disposition and provisional seizure. The sales price also took over the obligation to return the lease deposit of the lessee of the 1,23th floor of the instant real estate, the Defendant takes over the obligation of the provisional disposition authority, and the Defendant takes over the obligation of the HaH, the provisional disposition authority, and paid the remainder of the money that the Defendant directly transferred to KimB and the HaG to KimB.

③ On March 27, 2012, the director of the tax office having jurisdiction over the Plaintiff’s North Daegu Daegu District Tax Office attached KimB’s share among the instant real estate on March 27, 2012, and received a payment plan, and released the above seizure on April 17, 2012, the Defendant could not have known the fact of delinquency in national taxes of KimB and ChoCC at the time of the instant sales contract. If known, the Defendant did not enter into the instant sales contract.

3) Determination

In full view of the following circumstances, it is recognized that the Defendant, a beneficiary, was unaware of the fact that the instant sales contract was detrimental to the general creditors of KimB and ChoCC at the time of the instant sales contract.

① 피고는 2011. 5. 20. 이GG로부터 이 사건 부동산 중 이GG 지분 전부(이 사건 제1부동산 지분 1/2, 제2부동산 지분 1/4, 제3부동산 지분 1/2, 제4부동산 지분 1/2)를 OOOO원에 매수하였는데, 이 사건 부동산 중 건물 부분(이GG 지분 1/2) 을 제외한 ㎡당 매매대금은 OOOO원[OOOO원/(102.1㎡+3.6㎡/4+29.8㎡/2)]으로, 이 사건 매매계약의 이 사건 부동산 중 건물 부분(김BB, 조CC의 지분 합계 3/8)을 제외한 ㎡당 매매대금 OOOO원[OOOO원/(I02.1㎡X3/8+3.6㎡X3/16+29.8㎡X3/8)과 큰 차이가 나지 않는다.

② The Defendant concluded the instant sales contract as a broker of the Licensed Real Estate Agent HeadF, and paid fees to the HeadF.

③ On March 27, 2012, the director of the tax office in North Daegu, which belongs to the Plaintiff, seized the shares of KimB in the ownership of the instant real estate with the preservation bond against the national tax claim against the above KimB, and released the seizure on April 17, 2012. On April 17, 2012, the director of the tax office in North Daegu, which confirmed the cancellation of the seizure of the Plaintiff’s real estate and recommended the Defendant to purchase the instant

④ On April 20, 2012, the Defendant: (a) assumed the Defendant’s obligation to refund the lease deposit of the lessee of the first, second, and third floor of the instant 4 real estate; (b) paid KRW OOOO in total by paying KRW 00,000 to the Defendant’s debt to Cho Ha, who is the provisional disposition authority; (c) the provisional attachment obligation to Lee GG; and (d) the provisional attachment obligation to this GG bank; and (e) paid KRW OOOO in total by paying the remainder of the sales price to KimB and ChoCC on April 25, 2012.

⑤ On May 20, 201, the Defendant purchased the GG ownership shares on the instant real estate on May 20, 201, and necessary to purchase KimB and ChoCC shares on the instant real estate.

(6) At the time of the instant sales contract, the Defendant was unable to ascertain the existence of the instant national tax claim due to the cancellation of the Plaintiff’s attachment. Other obligations, such as provisional attachment or provisional disposition related to shares in KimB and ChoCC, among the instant real estate, were resolved by the Defendant by training or direct payment.

④ In the case of 1269 OE apartment No. 102, 301, 1269 OE apartment No. 302, 102, 301 (EB equity 3/13 and 2/13) (EB equity 3/13 and ECC equity 2/13), the right to collateral security was established with a national bank, the maximum debt amount, and the maximum debt amount OOO. However, it is difficult to deem that the Defendant was aware of the fact that the Plaintiff was not subject to the instant sales contract, and it is difficult to deem that the Defendant was aware of the fact that the Plaintiff was not personal and publicly notified.

[Ground of recognition] The evidence Nos. 8-1, 2, 3, 4-A-1, 2-2, 3-2, 3-5, 8-1, 2, 3, 4, 5, 9-9-1, 2, 3, 3, and 10 of the evidence Nos. 8-2, 3-2, 3-5, 8-2, 3, and 10 of the evidence Nos. 8-2, 4-2, 3, and 10

Therefore, the claim of this case based on the premise that the Defendant, who entered into the contract with KimB and ChoCC, was aware of the fact that the contract constitutes a speculative act is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.