Seoul Central District Court-2007-Gohap-53735 (O6.10, 2013)

Fraudulent Act Revocation and Claim for Payment of Money

The part of the claim for revocation of a fraudulent act is illegal, and it is not unlawful because it does not specify the subject matter of a lawsuit with the source of the claim seeking payment of money or fulfillment of the obligation.

Article 30 of the National Tax Collection Act

2013Na40218 Revocation of Fraudulent Act

00

000 et al.

Seoul Central District Court 2007Gahap53735 ( October 10, 2013)

on 15, 2017

on 13, 2017

1. The plaintiff (appointed party)'s appeal is dismissed.

2. We dismiss all the primary claims and ancillary claims added at the trial of the case.

3. The costs of the lawsuit after the appeal shall be borne by the plaintiff (appointed party).

1. Purport of claim

A. The primary purport of the claim

1) The defendants confirmed that the judgment of Daejeon District Court Decision 2006Ma4259 dated 2006 and each of the relevant documents (illegal certificates, etc.) evidencing the title of the application is invalid against the plaintiff and the defendant jj prepared for the purpose of infringing (aaaaa corporation (hereinafter referred to as "appointed party") and the plaintiff (hereinafter referred to as "the appointed party", and the combination of the designated parties and the plaintiff)'s rights by means of conspiracy, conspiracy, deception, etc. (hereinafter referred to as "the plaintiff") and the plaintiff (hereinafter referred to as "the plaintiff"). The defendant bb and ccc cancel each of the above fraudulent acts (the Daejeon District Court Decision 2006Ma4259 around 206, the trade and financial transactions verifying the title of the application, and related documents).

2) The Defendants jointly and severally pay 80,910,420 won to the Plaintiffs and 6% interest per annum from January 31, 2006 to the delivery date of the instant complaint, and 20% interest per annum from the next day to the day of full payment.

3) The Defendants jointly and severally remove three tax invoices in the name of Defendant B, Inc. on December 200, and April 2005 and September 2005, equivalent to the amount of value-added tax of KRW 25,000,000 and the amount of value-added tax of KRW 2,060,00,000, as well as the amount of value-added tax of KRW 2,000 and the amount of value-added tax of KRW 2,060,00, and accordingly, return (provision) to the Plaintiff the tax invoices subject to the duty to issue (tax invoices) in the name of Defendant Cc, the amount of the tax invoices subject to correction, the decision on correction, and the eee-mail’s receipt (or the certificate of delivery).

4) Defendant B andjj Co., Ltd. shall jointly and severally pay to the Plaintiffs 54,210,000 won and 9% per annum from January 30, 2012 to the date of delivery of the instant complaint, and 20% per annum from the next day to the date of full payment.

5) Defendant b and C Co., Ltd. jointly registered the Plaintiff with respect to the establishment registration of superficies 284-3 and 185 square meters (hereinafter “the instant real estate”) of km-dong 284-3 and 185 square meters (hereinafter “the instant real estate”), ① Voluntary registration of the decision on commencement of auction completed on March 22, 2006 by Daejeon District Court Branch Decision k branch office 28034, ② registration of provisional seizure completed on March 31, 2006, ③ registration of provisional seizure completed on May 20, 192, ③ registration of the establishment of neighboring superficies completed on May 20, 192, ④ registration of the establishment of superficies completed on May 20, 192 as 1763, ⑤ registration of the establishment of superficies 200% from the date following the date of receipt to the date of performance of each of the Defendants’ respective claims with respect to the Plaintiff as 50% interest payment of superficies 150% from the date of delivery.25%

B. Preliminary purport of claim

1) The Defendants jointly and severally pay to the Plaintiffs 10,910,420 won as well as 6% interest per annum from March 31, 2006 to the delivery date of the instant complaint, and 20% interest per annum from the next day to the day of full payment.

2) Each tax invoice of December 31, 2005 (which was issued by Defendant BC around December 10, 2005) issued by Defendant BC on and after November 30, 2005 and after January 20, 2006 by Defendant BC on and after December 31, 2006 is a false certificate that has no effect on the Plaintiffs and Defendantjj.

3) Defendant cc andjj pay to the Plaintiffs jointly and severally, KRW 27,230,00 and the amount of 9% per annum from April 25, 2005 to the date of delivery of the complaint of this case, and KRW 20% per annum from the next day to the date of full payment. Alternatively, Defendant c andjj pay to the Plaintiffs the amount of 27,000,000 won and the amount of 20% per annum from the next day to the date of delivery of the complaint of this case from December 2, 2007 to the date of delivery of the complaint of this case.

4) Defendant b and C Co., Ltd. jointly and severally pay to the Plaintiffs 54,200,000 won with 9% interest per annum from September 12, 2006 to the delivery date of the instant complaint, and 20% interest per annum from the next day to the day of full payment.

5) Defendant b and CC jointly owes the obligation to jointly deliver (return) special lecture fees of an amount equivalent to 23,060,000 (Additional Tax) to the Plaintiff. Defendant b and jj jointly pays to the Plaintiff 5,000,000 (Value-Added Tax reported on January 25, 2005) for the revised return and rectification of the amount of 5,000,000 (value-Added Tax reported on January 25, 2005). At first, Defendant b and jjj jointly and severally paid to the Plaintiff KRW 22,90,000 and its amount of 22,90,000 per annum from January 26, 206 to the delivery date of the complaint of this case; Defendant c and jj jointly and severally paid to the Plaintiff the amount of 20% interest per annum from the next day to the day of full payment; Defendant c and jj from the next day to the date of full payment.

2. Purport of appeal

Of the main claims in the judgment of the court of first instance, the part of the claim for confirmation of authenticity of deed and the part of the claim for revocation of fraudulent act and the part of the claim against the plaintiff that ruled against the plaintiff that falls under the order of payment under each of the following subparagraphs shall be revoked. In the first instance court, it is confirmed that the judgment of Daejeon District Court Decision 2006 Doz. 4259 and each of the relevant documents (illegal certificates, etc.) evidencing the title of the pertinent claim shall be null and void against the plaintiff and the defendant j. The defendant b and c revoke each of the above fraudulent act (Sk branch of Daejeon District Court Decision 2006Ma4259, the trade and financial transaction of the pertinent application, the title of the pertinent application, and the related documents). The defendants jointly and severally make the plaintiff 21,00,000 and 9% of the annual payment from January 25, 2006 to the date of the delivery of the complaint of this case and 20% of the annual payment.

1. Scope of the judgment of this court;

A. In the first instance court, the Plaintiff filed the same claim against the Defendants as stated in the purport of the claim, and the court of the first instance rejected all of them as unlawful. Accordingly, the Plaintiff filed an appeal only for the part of the claim for confirmation of the authenticity of the deed, the part of the claim for revocation of fraudulent act, and the part of the conjunctive claim.

B. On the other hand, in the first instance of the trial, the Plaintiff added the claim for registration of cancellation against the Defendant Company BB and C, and the claim for payment of money against the Defendants and the claim for delivery of special lecture materials (Stetraregrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrgrg

C. Therefore, the subject of the judgment of this Court is limited to the claim for confirmation of the authenticity of the deed and the claim for revocation of fraudulent act among the main claim of the judgment of the court of first instance against which the plaintiff is dissatisfied, and part of the claim for payment of money among the ancillary claim, as well as the main and ancillary claim added in the trial, and thus, it is limited

2. Judgment on the part of the claim for confirmation of the authenticity of deed, the part of the claim for revocation of fraudulent act and the part of the conjunctive claim

This Court's reasoning is the same as the reasoning of the judgment of the court of first instance, and thus, citing it as it is in accordance with Article 420 of the Civil Procedure Act.

3. Determination ex officio as to the legitimacy of the plaintiff's primary and conjunctive claim added at the trial among the lawsuit of this case

A. Determination as to each claim for cancellation registration (former part of Paragraph 5)

The plaintiff is seeking to implement the procedure for registration of voluntary decision on commencement of auction, provisional seizure, registration of establishment of neighboring superficies, registration of creation of superficies, additional registration of transfer of superficies, and registration of cancellation of additional registration of transfer of superficies against Defendant BB and C Co., Ltd. for the first time in the trial.

First, with respect to the legitimacy of the part concerning the registration of decision on commencement of voluntary auction and the request for cancellation of registration of provisional seizure, the registration of decision on commencement of voluntary auction and the registration of provisional seizure cannot be made directly by the parties to the registration agency and must be made by the commission of the court (Articles 268, 94, and 293(3) of the Civil Execution Act). As such, in the case of registration entered by the commission of the court or by the authority of the registrar, the cancellation should also be made by the commission or the authority of the court, and therefore, there is no benefit of lawsuit to seek this part of the plaintiff's request for cancellation by lawsuit.

As a result, the Plaintiff’s claim for cancellation of the above registration cannot be specifically specified even in full view of the following: (a) whether the part of the claim for cancellation of the registration of the establishment of neighboring mortgage and the registration of the establishment of superficies is legitimate; (b) whether the Plaintiff’s claim for cancellation of the above registration is amended (application) by the trial court; and (c) the Plaintiff’s argument in the trial court. Therefore, the Plaintiff’

B. Determination on each claim for monetary payment (the latter part of Paragraph 5 of the primary claim and Paragraph 5 of the preliminary claim), and on the claim for delivery, revised declaration, and claim for corrective obligation (the first part of Paragraph 5 of the preliminary claim)

The plaintiffs seek payment of money or performance of certain obligations as to all or part of the defendants in the trial. However, even when considering the documents such as the alteration of the purport of appeal (additional) and the briefs submitted by the plaintiff in the trial and the pleadings in the plaintiff's trial court, the plaintiffs cannot specify the subject matter of lawsuit since the plaintiff's claim source seeking the payment of money or performance of obligations and the grounds for calculation of such amount cannot be known. Thus, the part concerning the claim for payment, the request for delivery, the revised declaration, and the request for performance of obligations for correction added in the trial are unlawful.

4. Conclusion

Therefore, the judgment of the court of first instance is justified, and the plaintiff's appeal is dismissed as it is without merit, and since the main claim and the conjunctive claim added at the court of first instance are unlawful among the lawsuits of this case, it is so decided as per Disposition by the assent of all.