Donation of direct remittance of the purchase price in excess of debt is a fraudulent act, and the defendant's bad faith is presumed.

The act of making a donation to the Defendant by having the Defendant remit the purchase price to the Defendant directly under excess of debt constitutes a fraudulent act detrimental to the Plaintiff, a creditor, as an act of reducing the creditor’s joint security, and the Defendant’s bad faith is presumed.

Article 30 of the National Tax Collection Act

2011Chap 4404 Revocation, etc. of fraudulent act

Korea

XX

February 29, 2012

May 9, 2012

1. A contract between the Defendant and Nonparty Park A on donation of KRW 000, which was concluded on March 18, 2010, shall be revoked.

2. The Defendant shall pay to the Plaintiff 00 won and 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. Basic facts

The following facts are either disputed between the parties, or acknowledged by Gap evidence Nos. 1, 2, 3, 4, 5, 7, 11, and Eul evidence No. 7 (including each number; hereinafter the same shall apply) and the whole purport of the arguments, and there is no other counter-proof.

A. From February 25, 2010 to March 4, 2010, the head of the tax office under the Plaintiff’s control conducted on-the-spot verification of the P2 (O27-1 O apartment 202 304, 202, and 2010. As a result of the investigation, the head of the tax office confirmed that the non-party’s business was actually conducted by the non-party 2 as the representative of the non-party 2 and the non-party 2 and the government of the workplace under the XX (****-*****)'s 471-3 OO 301 and the non-party 2 is the representative of the non-party 2 and the government of the workplace under the supervision of the non-party 2, the head of the tax office confirmed that the non-party 2 and the non-party 2 were on-the-party 200 to 208.5.26.06.

B. On March 4, 2010, ParkA sold 700,000,000 square meters per annum 1,196 square meters per annum 709, 710-2 road of the same Ri, 712-1,000 square meters per annum 712-1,656 square meters per annum 712-2, and 712-2, 21 square meters per annum (hereinafter “each land of this case”) to the non-party to OA on March 4, 201, and completed the registration of ownership transfer on March 11, 2010. The OCC received a request from LA to transfer part of the purchase price to the defendant, and transferred 00 won out of the purchase price to the defendant’s post office account (hereinafter “the remittance of this case”). The mother of the defendant is the mother of LA.

다. 이 사건 송금 행위 당시인 2010. 3. 18. 박AA의 적극재산으로는 금융재산인 국민은행에 대한 예금 채권(ㅊㅊ은행) 000원, BB 자동차 평가액 000원, 피고에게 계좌이체 된 이 사건 각 토지의 매매 대금 중 000원 합계 총 000원이 있었고, 소극재산으로는 이 사건 조세채권인 000원이 있었다.

2. Referral and Determination

A. The parties' assertion

1) The plaintiff's assertion

The Plaintiff asserts that: (a) the act of remitting in excess of debt constitutes a fraudulent act detrimental to the Plaintiff, who is a creditor, as a donation to be exempted from the disposition of default on national taxes due to attachment, etc.; and (b) even if the remittance was performed under the pretext of family debt repayment, it constitutes a fraudulent act as it constitutes a fraudulent act as it was conducted in collusion with ParkA and the Defendant to prejudice other creditors, and thus, constitutes a fraudulent act; and (c) the Defendant should compensate the Plaintiff for the amount of KRW 00 and the damages for its delay.

2) The defendant's assertion

In regard to this, the Defendant alleged that the remittance of the above money was not a gift, because it was for the Defendant and Park DoD to repay the money borrowed from the Defendant and Park DoD as the money for sale at the time of the purchase of each of the instant lands, and that the remittance of this case was not a gift.

(b) the existence of preserved claims;

As seen earlier between May 7, 2010 and May 26, 2010, the Plaintiff’s notice of tax payment to ParkA was issued from May 7, 2010 to May 26, 2010 following the instant remittance. However, the Plaintiff’s instant tax claim to ParkA against the Plaintiff is naturally established without any special act of the tax authorities or taxpayers for establishing the relevant tax liability when the taxation requirements prescribed by the Act are satisfied. In the case of global income tax and value-added tax, it is established when the taxable period expires pursuant to Article 21(1) of the Framework Act on National Taxes. According to Article 5(1) of the Income Tax Act, the taxable period of income tax is from January 1 to December 31, 200; pursuant to Article 3(1) of the Value-Added Tax Act, the taxable period of value-added tax is from January 1 to June 30; and from July 1 to December 31, 2010, it constitutes the obligee’s right of revocation prior to March 18, 201.

(c) the status of the property of ParkA;

1) On March 18, 2010, ParkA’s active property, which was at the time of the instant remittance, was KRW 000, KRW 000, KRW 000, and KRW 000,000, total amount of the claim for the purchase and sale of each of the instant lands transferred to the Defendant, while the claim for the instant tax claim was KRW 00,00,000, in total, as seen earlier, at the time of the instant remittance, ParkA had been in excess of its obligation in excess of its active property at the time of the instant remittance.

2) The Defendant asserts that the purchase price of the instant land is KRW 000, and that the remaining KRW 000,000, excluding the amount of the secured debt of the right to preferential reimbursement, which is the secured debt of the right to preferential reimbursement, is included in active property at the time of the instant remittance, is KRW 00,000.

In light of the above, the obligor’s insolvency as a requirement for revocation of a fraudulent act means that the obligor does not have sufficient means to repay. In particular, if it is impossible to expect voluntary repayment, repayment through compulsory execution should be taken into account. Thus, whether the obligor is a small property, active property, or property that can meet the above purpose should be an important factor to determine whether the obligor has sufficient means to repay (see, e.g., Supreme Court Decision 2004Da2564, Feb. 10, 2006). However, barring any special circumstance, the obligor’s active property at the time of disposing of the property should be excluded from the sale price of the above property that cannot serve as joint collateral for the obligor’s claim because of its lack of real value (see, e.g., Supreme Court Decision 2001Da32533, Oct. 12, 201). Considering the above facts and the purport of the entire pleading No. 6-2, 200 won, excluding the remaining amount of money transferred to the Defendant’s account, 300.

Therefore, the above argument by the defendant is without merit ( even if all of the 000 won are included in active property, it is merely 000 won active property, and it does not affect the conclusion that Park Jong was in excess of the obligation at the time of the remittance of this case).

D. Establishment of fraudulent act

1) Legal nature of the remittance of this case

A) In a case where the obligor’s joint security by repaying the obligation to a specific obligee in excess of his/her obligation results in a decrease, such repayment does not constitute a fraudulent act, in principle, unless the obligor has performed performance with the intent of harming other creditors, in particular with some creditors. However, in a case where the obligee seeking revocation of a fraudulent act claims that the obligor’s monetary payment to the beneficiary was a donation of the obligor’s existing obligation, where the beneficiary contests that the aforementioned monetary payment constitutes a donation, it should be proved that the said monetary payment constitutes a donation in order to be recognized as a fraudulent act, or that the said monetary payment constitutes a donation of the obligee’s intent to prejudice the obligee, but the burden of proof is on the part of the obligee asserting a fraudulent act (see, e.g., Supreme Court Decision 2005Da28686, May 31, 2007). In addition, whether the obligor and the beneficiary were aware of the obligor’s obligation to the beneficiary at the time of 2005Da286865, supra, and whether the obligor and beneficiary were actually aware of the beneficiary’s obligation.

B) In light of the above legal principles, the following facts are examined as to whether there is actual claim against Park DoD and the Defendant Park Park A, and each of the following facts is without dispute between the parties, or there is no other counter-proof as to Gap evidence 5, Gap evidence 8 through 11, Eul evidence 1, Eul, Eul evidence 6, 7, and 8 (including each number), and the result of the court's inquiry of facts about the government branch of the citizen bank in the Republic of Korea, the whole purport of the pleadings is added to the whole purport of the pleadings. The statement of evidence Nos. 4 and 5 is contrary to this, and there is no other counter-proof.

① Around November 2008, ParkA purchased each of the instant lands from Lee K, and completed the registration of ownership transfer on each of the instant lands on February 11, 2009. On January 7, 2010, the Defendant also purchased from Dongcheon-si, AAri 710-1 square meters, 478 square meters for 710-5 square meters for 711 square meters for 711 square meters for 146 square meters for 716 square meters for 146 square meters for 200 won for each of the instant lands (hereinafter referred to as “other AAri land”) and completed the registration of ownership transfer under the name of the Defendant on January 12, 2010. Each of the instant lands and other AAri lands were within the land transaction permission zone, and the designation of a land transaction permission zone was revoked on January 30, 209.

② On November 18, 2008, the Republic of Korea District Court, Macheon Registry Office, 49598, the maximum debt amount of which was KRW 0 million, the debtor, the debtor, the mortgagee, the defendant, and the joint mortgage establishment registration (hereinafter referred to as the "joint mortgage of this case") composed of Park Jong-A, was terminated on March 4, 2010, and the same registry office was cancelled on March 11, 2010 by the receipt of No. 8464 on March 11, 2010.

③ On November 20, 2008, around the time of the purchase of each of the instant lands by the government of the National Bank of ParkA’s member XX Dong branch accounts (hereinafter “National Bank accounts”), KRW 000 won was deposited from the Defendant on November 20, 2008, and KRW 000 on November 24, 2008. Thereafter, KRW 000 on December 31, 2009 was deposited on a cashier’s check of KRW 000 on the same day. However, there is no evidence to deem that 00 won was deposited on November 24, 2008 and deposited from the passbook of ParkA, and there is no other money than KRW 00 deposited on November 20, 2008.

④ On January 29, 2010, the Defendant purchased 307 units of YY building (hereinafter “YY”) at the Government-Sinsi 470-2, 470-3, from 000 won, provided KRW 000 out of the sales price to YA, and the tax authority, who is the tax authority, provided the Defendant with the above KRW 000 on the gift tax assessment data.

⑤ The total amount of income accrued in the year 2008 by Park Jong-A, which was confirmed as a result of the investigation of the legislative tax secretary’s report, shall be KRW 000, and the amount of income shall be KRW 00

C) In light of the aforementioned facts, the Defendant alleged to the effect that, at the time of the above-mentioned argument, it is difficult to view that the above-mentioned land and other property of 00 won were transferred to the Defendant for each of the above-mentioned land and the property of 00 won for each of the above-mentioned land and the property of 00 won for each of the above-mentioned land and the property of 00 won for each of the above-mentioned land. However, in light of the fact that the Defendant had completed the registration of the establishment of the right of 00 won for each of the above-mentioned land and the property of 00 won for each of the above-mentioned land, it is difficult to view that the above-mentioned land and the property of 0 won were already purchased for each of the above-mentioned land and the property of 00 won for each of the above-mentioned land and the property of 00 won for each of the above-mentioned land and the property of 00 won for each of the above-mentioned land were already purchased for the purpose of securing ownership transfer.

2) Whether a fraudulent act was established

A) Determination

If a debtor donated his/her own property to another person in excess of his/her obligation, such act constitutes a fraudulent act, barring special circumstances (see, e.g., Supreme Court Decision 2005Da28686, May 31, 2007). According to the above findings of recognition, an act of donation of KRW 00 to the defendant by way of having ParkA, which was in excess of his/her obligation, remits the purchase price to the defendant directly to the defendant, constitutes a fraudulent act that causes damage to the plaintiff, which is the creditor, by reducing the

B) Judgment on the defendant's argument

(1) As to this, the Defendant asserts that the assessment of the disposal of the purchase price acquired through the sale of real estate as a fraudulent act is not permissible as a double-evaluation of the same property, unless the determination of a fraudulent act on the disposal of real estate has

In principle, in a case where an obligor has engaged in multiple property acts in succession, it is reasonable to judge whether each act causes insolvency as to the obligee’s right of revocation. However, in a case where there exist special circumstances to regard the series of such acts as a single act, it should be determined as a whole as a whole. Whether there exists such special circumstance should be determined based on the identity of the other party, the time closeness of each act, the relationship between the obligor and the other party, and the unity of motive or opportunity of the act (see Supreme Court Decision 2010Da15387, May 27, 2010).

In light of the above legal principles, the sales of each land of this case and the gift of this case are different from the other party to the act, there is no special relation between the OCC and ParkA, and there is no data that the opportunity for disposal is identical or related to the same. Thus, the sale of each land of this case and the gift of this case should not be determined as a whole as a whole, but it should be determined as to whether each act of disposal is piracy.

Therefore, in addition to the sale of each land of this case, the gift of this case, which is a disposal act of the purchase price, is not permissible as a double evaluation of the same property, and thus, the defendant's assertion is without merit.

(2) In addition, since the Defendant received the repayment of the secured debt as a mortgagee with a preferential right to reimbursement through the instant remittance, it is argued that the instant remittance act does not constitute a fraudulent act, and therefore, as seen earlier, the Defendant donated KRW 000 to the Defendant through the instant remittance act. The secured debt of the instant joint collateral security was already extinguished by the completion of the registration of transfer of ownership with respect to the instant land and other land AAA, and there is no evidence to support that the Defendant had a preferential right to reimbursement against Park Jong-A, since the instant remittance act did not constitute a fraudulent act. Accordingly, the first Defendant’s aforementioned assertion on a different premise is without merit.

E. Intention and defendant's bad faith

1) Comprehensively considering the purport of Gap evidence 5-2, 3, Gap evidence 7, Eul evidence 5, and Eul evidence 6, the head of the tax office of the Gu government has conducted on-site investigations into the actual place of business operated by ParkA from February 25, 2010 to March 4, 2010; ParkA has operated a simplified taxable person by changing its representative and trade name for two years; was omitted by repeating business closure and opening business within one year; the fact that ParkA and its employees were directly investigating at the time of the above investigation; ParkA received on-site 00 won upon termination of the above FF savings on September 10, 2010; and received on-site 300 won upon cancellation of each of the above accounts; and on March 4, 2010, he received on-site 300 won upon cancellation of each of the above accounts; and on-site 30,000 won upon cancellation of each of the above accounts; and on March 30, 2010.

Since March 4, 2010 when an on-site investigation is completed on the facts found in the above facts, in light of the fact that ParkA prepared all financial assets under his/her name and made the instant donation, and that ParkA could have sufficiently anticipated that the value-added tax and the comprehensive income tax will be imposed on himself/herself through the above investigation, it is reasonable to deem that ParkA performed the instant donation to the Defendant, who is the mother, in excess of his/her obligation to avoid the disposition on default of the Plaintiff, and at the time of the instant donation, ParkA had the intent to harm ParkA at the time of the instant donation. The Defendant’s assertion that the tax treatment is entirely granted to the certified tax accountant and the statement in the evidence No. 3 alone are insufficient to reverse the said recognition and there is no counter-proof.

2) The defendant's bad faith, which is the beneficiary of the fraudulent act, is presumed to be presumed. The defendant alleged to the effect that he was a bona fide beneficiary since he was unaware of the fact that ParkA was delinquent. However, the evidence submitted by the defendant alone is insufficient to recognize that the defendant was a bona fide beneficiary, and there is no other evidence to recognize this differently. Therefore,

(f) Scope of revocation of fraudulent act and reinstatement;

As seen earlier, the gift of this case constitutes a fraudulent act and thus its revocation is revoked, and the defendant is obligated to pay to the plaintiff damages for delay at the rate of 5% per annum as provided by the Civil Act from the day following the day when the judgment of this case becomes final and conclusive to the day when full payment is complete.

3. Conclusion

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