The Defendant’s act of using loans, etc. in cash donated to her husband by her husband cannot be deemed as having been committed in bad faith by her husband and the Defendant.

The Defendant’s act of using loans, etc. in cash donated to her husband by her husband cannot be deemed as having been committed in bad faith by her husband and the Defendant.

Article 30 of the National Tax Collection Act Revocation

2013 Gohap 101073 Revocation of Fraudulent Act

Korea

AAA

May 23, 2014

July 11, 2014

1. The plaintiff's claim is dismissed.

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

피고와 이BB 사이에 별지1 목록 기재 금원에 관하여 같은 목록 기재 각 일자에 체결된 증여계약을 취소한다. 피고는 원고에게 〇억 〇,〇〇〇만 원 및 이에 대하여 이 판결 확정일 다음날부터 다 갚는 날까지 연 5%의 비율에 의한 금원을 지급하라.

1. Basic facts

A. The Plaintiff’s taxation claim against BB

(1) On May 1, 2009, the Director of the AAB Tax Office under the Plaintiff’s AAB did not report the inheritance tax on the decedent thisCC, which was commenced on September 10, 2006, and on May 1, 2009, notified this B of KRW 00,000,000 for one inheritance tax investigation and determined pursuant to Article 76 of the Inheritance Tax and Gift Tax Act, and KRW 200,000,000 for 200,000 for 205,000 for 2005,000,000 for 200,000 for 206,000 for 200,000 for 206 (hereinafter “the inheritance tax and gift tax claim”).

(2) The Plaintiff had a claim of KRW 000,00,000 for gift tax of 2003 and global income tax of KRW 00,000,00 for gift tax of 2003 and KRW 00,000 for gift tax of 2004, and a claim of KRW 000,000 for gift tax of 200,00 for gift tax of 204.

(3) As seen earlier, the Plaintiff’s taxation claim against BB changes in the amount of increase or decrease, as seen earlier, and the notified tax amount as of June 2012 is approximately KRW 00 billion, and KRW 00 million, if additional dues are included.

B. Plaintiff’s establishment of collateral security right

(1) On January 12, 2009, thisB completed on January 12, 2009 the registration of creation of a neighboring mortgage as the plaintiff, who was the mortgagee, with respect to the part of the ZZ land 609 Japanese land (hereinafter referred to as the "Z land") located in XX Dong 609, ZZ land at the time of Z, with a view to securing the tax claim described in paragraph (1) of the said A.

(2) 이BB은 2009. 7. 30. 위 가 (1)항 기재 이 사건 상속세 및 증여세 채무에 대하여 ZZ 토지 중 별지 부동산 목록 기재 각 토지 및 이BB 소유의 부산 ◇◇구 〇〇동 143-1 〇〇역 WW쌍떼빌 제에이〇〇〇〇호(이하 'WW쌍떼빌'이라고만 한다)를 담보로 제공하면서 연부연납(1회 납부기한 2010. 7. 31., 2회 납부기한 2011. 7. 31., 3회 납부기한 2012. 7. 31.) 허가를 신청하였고, 2009. 8. 6. 위 부동산들에 관하여 원고 앞으로 채권최고액 0,000,000,000원의 공동 근저당권설정등기를 마쳐주었다.

(c) sale of land and payment of taxes on the public land by thisB;

(1) Sale before November 15, 201 and payment of taxes;

From 2009, the BB received documents necessary for the termination and cancellation of the right to collateral security with the consent of the Plaintiff, and sold part of the land of the Z, and paid the Plaintiff tax liability, including the instant inheritance tax and gift tax, with the proceeds therefrom. The details are as follows, and the total amount of tax liability paid by the above method is KRW 0,000,000 (including the instant inheritance tax and gift tax liability KRW 0,000,000).

(2) Sale and purchase on November 15, 201

In November 15, 201, thisB, with the Plaintiff’s consent, sold the purchase price of KRW 610-51, forest land in XX 610-51, and KRW 5620,000,000,000,000,000,000,000 for land in Z, and KRW 610-54, and KRW 3306,000,000,000,000,000 to E and Gohap, ③ 610-56, and KRW 610-56,46, and KRW 610-57,00,000 for forest land in ZG, respectively (hereinafter collectively referred to as “the instant land”).

(3) The remaining Z land

별지 부동산 목록 기재 ZZ 토지 중 이BB이 위 (1), (2)와 같이 매도하고 남은 나머지 토지(이하 '나머지 ZZ 토지'라 한다)들에 대하여 원고가 2013. 7. 22. 대전지방법원 ZZ지원에 2013타경3〇〇〇호로 임의경매를 신청하여 위 법원은 2013. 7. 23.임의경매개시결정을 하였고, 2013. 8. 13. 현재 나머지 ZZ 토지들의 감정평가액 합계는 0,000,000,000원이다.

D. Disposition of the purchase price of the instant land

(1) AB paid 00 million won out of the total purchase price of the instant land of KRW 000,000,000,000,000 as the debt repayment to BH, and received the remainder of KRW 00,000,000,000.

(2) 이BB은 위와 같이 수령한 매매대금 0억 0,000만 중 0억 0,000만 원(이하 '이 사건 금원'이라 한다)으로 아래 표와 같이 피고 명의의 부산 ◇◇구 ◇◇동 693-1 ◇◇파크리치 103동 〇〇호(이하 '◇◇동 아파트'라 한다)에 마쳐진 부산은행 저당권설정등기의 피담보채무를 변제하였다(이하 '이 사건 각 처분행위'라 한다).

E. Status of this case’s disposal at the time of each disposition

(i)affirmative property;

(A) Real estate;

(Omission of List)

(b) Cash;

Of the purchase price of the instant land, KRW 00 million received by the Plaintiff

(C) Total amount

KRW 0,000,000 (=real property of KRW 0,000,000,000 + Cash of KRW 000,000)

(D) The value of active property after each disposition of this case

KRW 0,000,000,000 (=0,000,0000 - KRW 000,0000)

(2) Petty property

(A) approximately KRW 00 billion of tax liabilities;

around August 2013, BB’s tax liability, including the additional dues, is about KRW 0 billion, but around June 2012, the notified tax amount is about KRW 000,000,000,000 and the additional dues are included.

(Omission of List)

(b)other liabilities of 000,000,000

o The obligation of loans from Busan Bank (the senior collateral security obligation established on the land of ZZ) 00,000,000

o The obligation of loans from the Bank of Korea (WWWWWWWWWWWWWWWWWC) KRW 000,000

o The obligation to return the deposit money in Section II (Priority on a deposit basis set forth in WWwelg Loans) KRW 000 million

(C) Total amount

0,000,000,000 won (=00,000,000 +00,000,000)

(f) Plaintiff’s claims secured by collateral security;

Each disposition of this case is KRW 00,000,000 for claims secured with preferential payment right among the Plaintiff’s tax claims at the time of each disposition of this case.

The actual tax amount is 0,000,000,000 won (=the remaining public land 0,000,000,0000,000 won + WWWWWWWWWWWW Borrowing 00,000 won)

The actual tax amount is KRW 000,000,000 in aggregate of the senior credit amount secured by the remaining Z land and WWWW-lurg Loans from Busan Bank + KRW 000,000,000 in loans from South Korea Bank + KRW 000,000 in deposit money for lease on a deposit basis under Section II)

The actual tax rate shall be 00,000,000 won (=0,000,000,000 - 000,000,000 won) which has the preferential right to payment of the tax claims on the remaining Z land and Wblurggs

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 12, Eul evidence Nos. 1 and 2 (including each number), the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

(1) The plaintiff's assertion

The plaintiff asserts that this case's disposition of this case's donation of this case's money to the defendant in excess of the debt amount, such as the maximum amount of tax liability against the plaintiff, constitutes fraudulent act, and thus, it should be revoked pursuant to Article 30 of the National Tax Collection Act and Article 406 of the Civil Act, and the defendant, as equivalent compensation, is obliged to pay the plaintiff KRW 00 million to its original state.

(2) The defendant's assertion

① Since the Plaintiff consented to the termination at each time of disposing of the Z land, on November 15, 201, the date of the sale of the land in the instant ZB, the Plaintiff was aware of the receipt of the purchase price by this BB on November 15, 201, which was the date of the sale of the land in the instant ZB. Moreover, the Plaintiff became aware that there was a fraudulent act around the time of each of the instant disposition, as the State was in a position to grasp the current status of the debtor’s property. In addition, the Plaintiff received the dividends as a mortgagee during the commencement of the voluntary auction on W BW Sheggg Loans. Therefore, the Plaintiff was aware of each of the instant disposition dispositions at least at the time of commencement of voluntary

② The Plaintiff’s taxation claim not only secured preferential payment right, but also did not become insolvent due to each of the instant dispositions, and there was no intention of deception. Therefore, each of the instant dispositions does not constitute fraudulent act.

(3) The Defendant received the apartment house from thisB, and the obligation of the loan is merely the repayment of its obligation with the fact that it should bear the debt, and the Defendant did not know that it would prejudice the creditor of the B, and thus, the Defendant constitutes a bona fide beneficiary.

B. Determination as to whether the exclusion period expires (this safety defense)

This case’s lawsuit was filed on October 14, 201, where the Plaintiff consented to the sale as a mortgagee, delivered documents necessary for the termination of the right to collateral security, and received part of the tax debt with the purchase-price. However, according to each of the statements in the evidence Nos. 7 and 8 (including the serial number) of this case’s land purchase and sale, it can be recognized that the Plaintiff was aware of the purchase and sale of the instant land from Jun. 15, 201 at the Busan Regional Tax Office where the Plaintiff was affiliated with the Plaintiff since the Plaintiff did not pay taxes even after a considerable period of time after the purchase and sale of the instant land. Accordingly, the Plaintiff was not in a position to promptly grasp the current status of the debtor’s property even if the Plaintiff was the State. Thus, it is difficult to view that the Plaintiff was aware of each of the instant disposition before the investigation on the disposal of the instant land was conducted, and there is no other evidence that the Plaintiff did not know about the exclusion period and its assertion.

C. Determination as to the fraudulent act

(1) If a primary debtor or a third party’s real estate is established in the future as to the creditor, and the debt amount exceeds the value of the real estate and the maximum debt amount, the creditor’s right of revocation is recognized only for the remaining amount of the debt which remains after deducting the amount preferentially reimbursed from the security (see Supreme Court Decision 2002Da41589, Nov. 8, 2002). In a case where the debtor’s act of reducing the liability property causes or deepens the shortage of common security for general creditors, whether the act constitutes a fraudulent act subject to revocation of creditor should be determined by comprehensively taking into account the following factors: (a) the degree of insolvency of the object; (b) the degree of insolvency; (c) the reasonableness of the act’s economic purpose; (d) the reasonableness of the act; (e) the inevitable nature of the act; and (e) the degree of awareness of the debtor and the beneficiary against the risk of lack of common security.

(2) In the instant case, it is reasonable to view that each of the instant dispositions does not constitute a fraudulent act in light of the following circumstances, which can be recognized by the foregoing facts and evidence.

(1) Claims secured preferential right to payment through the right to collateral security, etc. cannot be a preserved claim against a fraudulent act. At the time of each of the instant dispositions, preferential right to payment was secured for KRW 00 million, which is a substantial amount of the Plaintiff’s tax claims.

② In order to secure tax claims, the Plaintiff created a mortgage on real estate owned by BB, and the BB had continuously paid taxes by selling the Z land from around 2009 to the date of each of the instant dispositions. The total amount of taxes paid prior to each of the instant dispositions reaches KRW 0 billion.

③ Even after each of the instant dispositions, B had active property of KRW 0 billion in real estate at that time, and KRW 000,000 in total, KRW 000,000 in the purchase price of the instant land, and KRW 000,000 in total, as well as KRW 000,000 in the purchase price of the instant land. This exceeds the small property at that time.

④ In light of the circumstances leading up to the fact that △△dong apartment unit was sold in lots (which appears to have been sold in lots in the name of the defendant with the intention of selling it to the defendant), the nature of the instant money paid for the repayment of the money borrowed from the purchase price, the relationship between this B and the defendant, etc., the debt of △△dong apartment unit shall be borne by the husband, who is the husband, and the instant money shall not be excluded from the possibility that it was used for repayment due to such circumstance.

⑤ Although some of the Plaintiff’s taxation claims do not have preferential rights to payment, it is difficult to view BB as insolvent due to each of the instant dispositions when comparing the Plaintiff’s active and passive properties.

(6) Considering the fact that a considerable amount of the BB’s property size, financial resources, and Plaintiff’s taxation claims was secured at the time of each of the instant dispositions, it is difficult to deem that the B had known that the amount of the purchase price of the instant land would be insufficient to secure joint security due to each of the instant dispositions. Moreover, it is difficult to deem that the B had the intention of harming B, by using the purchase price of the instant land in repayment of the Busan Bank’s loan, which is a senior mortgagee, even after each of the instant dispositions.

D. Sub-committee

Therefore, since each act of this case does not constitute a fraudulent act, the plaintiff's assertion is without merit, without examining the remaining requirements of the creditor's right of revocation.

3. Conclusion

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