Suwon District Court Busan District Court Decision 2012 Gohap21017 ( October 17, 2013)

Inasmuch as the divorce agreement constitutes an excessive division of property beyond a considerable degree, it constitutes a fraudulent act.

Although a delinquent taxpayer and his/her spouse entered into a division of property on the grounds of divorce, it is reasonable to view that the division of property is 50%, and therefore, the exceeding portion constitutes a fraudulent act subject to revocation as it constitutes an excessive division of property.

2013Na2025109 Revocation of Fraudulent Act

Korea

Park ○

Suwon District Court Decision 2012Gahap21017 decided October 17, 2013

July 9, 2014

August 11, 2014

1. Revocation of a judgment of the first instance;

2. The division of property, which was concluded on August 20, 2007 between Si/Gun/Gu and the Defendant, shall be revoked within the limit of 000 won.

3. The defendant shall pay to the plaintiff 00 won with 5% interest per annum from the day after the day when the judgment of this case became final to the day of complete payment.

4. All costs of the lawsuit shall be borne by the defendant.

same as the entry.

1. Basic facts

A. On March 27, 2007, on the part of ○○○-dong, ○○-dong, ○○○-dong, and building on land (hereinafter “the instant real estate”) were sold to KRW 0 billion. However, on the date of the contract, the intermediate payment of KRW 00 billion was concluded, and the remainder of KRW 0 billion was paid on April 30, 2007, respectively (hereinafter “the instant sales contract”). On January 18, 2008, △△△△△ completed the registration of ownership transfer on the instant real estate in the name of ○○○-dong, ○○○-dong, ○○-dong, ○○, and ○○-dong, ○○, but did not report the transfer income tax arising from the instant sales contract to the tax office.

B. Meanwhile, from February 28, 1987, the Seoul Special Self-Governing Province and the Defendant had a legal marital relationship with the Defendant. While the Special Self-Governing Province and the Defendant agreed on the divorce on August 20, 207, the Special Self-Governing Province and the Defendant agreed on the division of property, the Special Self-Governing Province and the Defendant shall pay the Defendant the solatium deposit amounting to KRW 0 billion and the remainder of the sales price of the real estate of this case, with the consolation money and the division of property, and the Defendant shall receive the above money, and the Defendant shall receive the payment of the above money and the child support of the two parties, including the child support.” The agreement on September 16, 2008 was completed.

C. On September 1, 2009, the head of the △△△△ Tax Office, under the Plaintiff’s control of the Plaintiff, determined that the sum of KRW 000 of the transfer income tax on the instant real estate and KRW 000 of the additional tax due to the filing of the report and the nonperformance of payment, should be imposed, and notified to the △△△△△△△. Moreover, on September 30, 2010, the amount of the tax to be paid to the Plaintiff as of September 30, 201 is the total amount of

[Ground for Recognition] Facts without dispute, Gap evidence 1 (Certificate of Marriage), Gap evidence 2 (Written Decision on Determination of Transfer Income Tax), Gap evidence 3-1, 2-1, 4-1, 6-2, Gap evidence 6-2, Gap evidence 8 (No. 9-1, 9-2, Gap evidence 9-2, Eul evidence 9-2, Eul evidence 1 (prior notice of tax investigation), Eul evidence 2 (Notice of Results of Tax Investigation), Eul evidence 2 (Notification of Results of Tax Investigation), and the purport of whole pleadings

2. Determination on this safety defense

A. The defendant's main defense

On July 21, 2011, the Defendant sent a prior notice of tax investigation to the Defendant regarding the acquisition of the Defendant’s multi-family house in △△△-dong, △△△-dong, and conducted an investigation into the source of acquired funds, and notified the completion of tax investigation on August 29, 201. The Plaintiff was aware of the instant fraudulent act on August 29, 201, prior to August 29, 2011. Thus, the instant lawsuit filed after the lapse of one year thereafter, which is unlawful for the exclusion period, shall be the defense that the instant lawsuit filed after the lapse of one year.

B. Determination

1) In the exercise of the obligee's right of revocation, "the date when the obligee becomes aware of the cause for the revocation" means the date when the obligee became aware of the requirement for the obligee's right of revocation, that is, the date when the obligee becomes aware of the fact that the obligee had committed a fraudulent act with the knowledge that it would prejudice the obligee. In order for the obligee to be aware of the cause for revocation, the mere fact that the obligee was aware of the act of disposal of the property is insufficient, and further, it is required to know the fact that the obligor was aware of the existence of a specific fraudulent act and that the obligor had an intent to deceive the obligor (Supreme Court Decision 2002Da23857 Decided September 24, 20

2) Comprehensively taking account of the overall purport of the pleadings in each of the statements in Gap evidence Nos. 7-1 (Report on Termination of the Investigation into Sources), Eul evidence Nos. 1 (Notice of Tax Investigation Results), and Eul evidence Nos. 2 (Notice of Tax Investigation Results), with respect to the instant case, the head of △△△△△ District Office, on July 21, 201, issued a notice to the Defendant on August 28, 2008, that the Defendant would make a tax investigation into the acquisition fund in relation to the purchase of the multi-family house located in △△△△△△△△△dong, △△△△△△△dong (hereinafter referred to as the "multi-family house located in △△△△△△△△△△), and the fact that the Plaintiff acquired the multi-family house under the status of the spouse of △△△△△△, a large-sum delinquent taxpayer, with no special source of income, and that the head of △△△△△△ District Office did not report the acquisition of the property fund for the purpose of 000 billion.

3) According to the above facts, the Plaintiff may be acknowledged to have become aware of the fact that, through the above fact-finding survey, the △△△△, a large-amount delinquent taxpayer, had made the instant agreement with the Defendant on the division of property. However, it is insufficient to acknowledge that the instant agreement on the division of property constitutes a fraudulent act, and that there is no other evidence to acknowledge that there was any intention to know. Furthermore, it is reasonable to deem that the Plaintiff’s specific fraudulent act and the time when △△△△△ became aware of the intention to know about the company of △△△△△△, a large-amount delinquent taxpayer, was filed on August 29, 201 by the said report on the completion of the contract, and it is evident in the record that the instant lawsuit was filed on August 17, 2012, within one year thereafter. Accordingly, the Defendant’s defense that the instant lawsuit had been filed with the exclusion period, was either vague or groundless.

3. Judgment on the merits

A. Summary of the parties' assertion

1) The plaintiff's assertion

A) At the time of August 20, 2007, the agreement on division of property in this case was concluded on August 20, 2007, the following was in excess of the obligation. The active property of the Si/Gun/Gu in Seoul Special Metropolitan City is ① The sales amount of the real estate in this case is KRW 0 billion (the sales amount of the real estate in this case was KRW 0 billion on March 27, 2007, KRW 00 billion, and KRW 00 billion on April 30, 2007, after receiving the intermediate payment of KRW 00 billion on April 30, 2007, it was used as the repayment of the collateral and the repayment of the deposit money on the real estate in this case)

B) As of September 16, 2008, the date the agreement between the Defendant and the Si/Gun/autonomous Gu was reached between the Defendant and the said couple’s active property was KRW 000,000, and the negative property was KRW 000,000,000,000,000 for the Plaintiff of Si/Gun/autonomous Gu. In view of the division ratio of property to KRW 5:5, the division amount was KRW 00,000 ( KRW 00 - 00) x 1/2). However, inasmuch as the agreement between Si/Gun/autonomous Gu and the Defendant agreed to divide the division of KRW 0,000,000 to the Defendant, the agreement in this case constitutes a fraudulent act that constitutes excessive division of property beyond

C) Therefore, the instant agreement on the division of property ought to be revoked within the scope of KRW 000, which is a part exceeding a legitimate scope ( =00 won - KRW 000), which is the part exceeding a legitimate scope. The Plaintiff seek compensation for value equivalent to the above amount to the Defendant.

2) The defendant's assertion

A) On August 20, 2007, at the time of the instant agreement on the division of property, the active property of the Si/Gun/autonomous Gu as of the time on August 20, 2007: ① the instant real estate purchase price of KRW 0 billion (or KRW 0 billion of the down payment and KRW 00 billion of the intermediate payment, which received KRW 0 billion in the instant real estate purchase price, and kept separate custody of the down payment in the passbook, and the remainder of KRW 00 million was withdrawn, but all active property should be included in the instant money), ② the ○○○ apartment lease deposit return claim of KRW 00 million in the ○○ apartment lease deposit located at ○○○○-dong, ○○○, ○○, and KRW 00 billion in the passbook’s balance, and KRW 00 billion in other individual bonds, and the small property was limited to KRW 000 in the Plaintiff’s tax liability, and the small

B) Although the Defendant agreed to receive KRW 0 billion from the Si/Gun/autonomous Gu in Seoul Special Metropolitan City, the Defendant received KRW 00,000,000,000,000,000 from the remainder of the real estate in this case, and the Defendant already used KRW 00,000,000,000,000,000,000,000,000,000,000,000 from the Defendant’s head of the Tong Special Metropolitan City Special Metropolitan City on August 14, 2008, as the remainder of the real estate in this case was already used for his children’s study. Therefore, it cannot be deemed that the Defendant’s money received as the division

B. Establishment of preserved claims

1) In principle, a claim that may be protected by the obligee’s right of revocation needs to be protected prior to the commission of an act that could be viewed as a fraudulent act. However, at the time of the fraudulent act, there is a high probability that there exists a legal relationship that is the basis of the establishment of the claim, and that the claim is established in the near future in the near future. In cases where a claim has been created by realizing the probability in the near future, such claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2007Da21245, Jul. 15, 2010).

2) On September 1, 2009, the head of ○○ Tax Office decided and notified that the sum of the transfer income tax and additional tax on the real estate in this case to Si/Gun/autonomous Gu on September 1, 2009 was KRW 00,000. As seen earlier, the Plaintiff’s claim for transfer income tax on Si/Gun/autonomous Gu in Seoul Special Metropolitan City was established after August 20, 2007, at the time of the

However, on March 27, 2007, the Seoul Special Metropolitan City Mayor and Do governor concluded a sales contract on the real estate of this case with Kim ○, and actually completed the registration of transfer of ownership through sale to Kim ○ on January 8, 2008, there was a legal relationship that serves as the basis for establishing transfer income tax and the establishment of transfer income tax claim. In the near future, the tax authorities would impose transfer income tax on the person who filed a return under the real estate sales contract of this case, and even though the Do governor did not voluntarily report the Do governor, it was highly probable that the Do governor would impose transfer income tax on the person who filed a transfer income tax, and even if so, it does not interfere with the realization of the probability that the transfer income tax claim would occur, the plaintiff's claim against the Do governor in Seoul Special Metropolitan City and Do can be the preserved

(c) The intention to commit fraudulent acts and to injure himself;

1) Division of property following divorce is a system that has the economic difficulty to support the other party, which is the liquidation of the joint property achieved through mutual cooperation between the other party during marriage. Although the debtor who has already been in excess of his/her obligation, while divorced and transferred a certain property to his/her spouse, thereby reducing joint security against the general creditor, barring any special circumstance, such division of property is not subject to revocation by a creditor as a fraudulent act, unless it is deemed that such division of property is excessive beyond the reasonable degree pursuant to the purport of Article 839-2(2) of the Civil Act. However, it cannot be deemed as a legitimate division of property for the portion exceeding a considerable degree, and thus can be subject to revocation (see, e.g., Supreme Court Decision 2006Da33258, Sept. 14, 2006).

2) Evidence No. 3-1, 2 (each certified transcript), 4-2 (Defendant bank account), 6 (No. 6)

(4) Comprehensively taking account of the fact that △△△△△△△△△△△○’s deposit transaction record certificate of 1, 6-2, 4-1, 2-1, 5-1, and 4 (the details of loans each), and the fact that △△△△△△△△△△△△△△△△△△△ was paid KRW 00 million on March 27, 2007 by receiving KRW 00-00,000 from △△△△△△△△△△, and deposited KRW 00,000,000 from the above account on March 28, 2007 to 00, KRW 00,000,000,000 won was deposited from △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, and KRW 1,07,000,000 won was deposited from the above account on April 30, 200007.

According to the above facts, in spite of the fact of the fact of recognition, the △△△△ received the down payment and intermediate payment of the instant sales contract from Kim○○○○, the sum of KRW 000,000,000, out of the above money to Kim○○ and Park○○, repaid the total amount of KRW 000,000,000, and only the deposit balance of KRW 00,000 at the time of the instant property division agreement on the instant real estate. On the other hand, it can be confirmed that the △△△△△ used most of the down payment and intermediate payment of the instant sales contract until the time of the instant property division agreement.

Therefore, at the time of the agreement on the division of property in this case, the active property of the △△△△ at the time of the agreement on the division of property in this case: ① the balance of the real estate in this case, ② KRW 000,000,000,000,0000,0000,0000,0000,0000,0000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000. Furthermore, as seen earlier, in accordance with the agreement on the division of property in this case, the Defendant had a tax liability of KRW 00,00,00,00,000,000,00,000,000,000,00,00,00.

3) We examine whether the amount of money that the Do governor in Seoul Special Metropolitan City paid to the Defendant by the division of property in accordance with the instant agreement on division of property exceeds a considerable degree. The active property of the Do governor in Seoul Special Metropolitan City is KRW 000 at the time of the instant agreement on division of property, and the negative property of the Do governor in Seoul Special Metropolitan City is KRW 000,000. According to the above, the net property subject to division of property is KRW 000,000 (=00). According to the above facts, considering the marriage, marriage and marriage of the Defendant, and the circumstances divorced by agreement, it is reasonable to view that the division ratio of property is 50% in Seoul Special Metropolitan City, Do, and Defendant 50%. Accordingly, it is reasonable to deem that the property that the Defendant should have divided from the Do governor in Seoul Special Metropolitan City according to the division of property falls under the division of property, since the portion exceeding the above amount equivalent to the legitimate amount of the division of property in this case exceeds a considerable degree, and it cannot be deemed a legitimate property division of property.

4) Therefore, barring any special circumstance, the instant agreement on the division of property between Si/Gun/Gu and the Defendant constitutes a fraudulent act with the intent to prejudice the general creditors, including the Plaintiff. Meanwhile, the Defendant, a beneficiary, is presumed to have been malicious.

(d) Revocation of fraudulent act and reinstatement;

The agreement on division of property of this case shall be revoked on the ground that it constitutes a fraudulent act that causes damage to the general creditors of Si/Gun/autonomous Gu within the scope of KRW 000,00, which the Plaintiff seeks, among the extent exceeding the above KRW 000, namely, KRW 00,000 (= KRW 000). Therefore, the Defendant is obliged to pay the Plaintiff, a creditor of Si/Gun/autonomous Gu, who is the obligee of Si/Gun/autonomous Gu, the amount of compensation for damages calculated at the rate of 5% per annum from the day after the date of the final decision

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted in its reasoning, and the judgment of the court of first instance is unfair. Therefore, the plaintiff's appeal of this case shall be accepted in its reasoning, and the judgment of the court of first instance shall be revoked and the plaintiff's claim shall be accepted as above, and it is so decided as per