Whether the transfer proceeds are subject to revocation of fraudulent act

It is confirmed that the capital gains tax was additionally determined and notified on the basis of the fact that the original real estate was transferred, but the capital gains tax was returned and paid, and the account transfer was made under the name of the original person and the person’s wife, which constitutes a fraudulent act detrimental to the creditor.

Article 406 of the Civil Code, Right of Revocation

1. Nonparty 1: Red ○○;

A. Within the limit of KRW 81,440,056 under the gift agreement of KRW 390,000,000 entered into on February 17, 2006 between Defendant Gab○○○:

B. The gift contract of KRW 278,00,000 between the defendant Park Jong-sik, which was concluded on February 17, 2006, shall be revoked within the limit of KRW 58,052,143.

2. The Plaintiff shall pay 81,440,056 won to the Plaintiff, Defendant Park Jong-○, and Defendant Park Park Jong-young, 58,052,143 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

3. The costs of lawsuit shall be borne by the Defendants.

The same shall apply to the order.

1. Basic facts

A. On February 17, 2006, Nonparty 1 sold 668,000,000 won (hereinafter “instant sales contract”) to Nonparty 1, 206, ○○○○○-dong ○○○○○-dong 106, 602 (hereinafter “instant real property”).

B. On the same day, red ○○○○○○ Bank’s deposit account (○○-○-○-○-○○-○○○○), which is an exclusive property of his own on the same day, deposited KRW 390,000,000, out of the sales price of the above sales price (hereinafter referred to as “the instant donation contract”) with Defendant ○○ Bank’s deposit account (○○-○-○-○-○-○-○-○-○-○-○-○-○○-○-○-○○-○-○).

C. Meanwhile, in addition to the original sales contract, the Hong○○ and the Defendant Park Jong-○ prepared a sales contract stating the sales amount of KRW 472,00,000 equivalent to 70% of the actual transaction price (hereinafter “the instant multi-sale contract”), and upon filing a transfer income tax report with the competent tax office, the transfer income tax was fully reduced by 35,738,350 won in accordance with the provisions on reduction and exemption of transfer income tax for the newly-built house acquisitors.

D. However, around February 2007, the National Tax Service's special tax audit on the ○○ area of ○○○ City was conducted, and the actual transaction of the instant real estate was revealed, and is excluded from the subject of exemption from capital gains tax due to a high-priced house of at least 600,000,000 won, and the competent tax office imposed capital gains tax and additional tax on Hong○○○ by April 30, 2007 (hereinafter referred to as "tax claim of this case").

Facts that there is no dispute over the basis of recognition, Gap evidence 1 through 9 (including paper numbers), the purport of the whole pleadings

2. The existence and scope of the preserved claim;

A. In principle, a claim that can 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, but there was a legal relationship that had already been based on which the claim was established at the time of the fraudulent act, and there was a high probability as to the fact that the claim was established in the near future in the near future. In the near future, the claim may also become the obligee’s minimum right of preservation in case where the claim was created by the realization of the probability in the near future (see, e.g., Supreme Court Decision 2006Da66753, Jun. 29, 2

B. According to the above facts, since the tax claim of this case was established on February 28, 2006, after Hong○○ sold the real estate of this case and received the price, the tax claim of this case was established after the conclusion of the gift contract of this case. However, since the gift contract of this case was established after the contract of this case, as long as the contract of this case was established after the contract of this case, there had already been a legal relationship which forms the basis for establishing the tax claim of this case. The tax claim of this case was immediately established as soon as the legal requirements are met, and it was highly probable that the tax claim of this case should be established in this legal relationship as soon as the tax claim of this case was established, and its probability has not yet been realized. Thus, the tax claim of this

C. In addition, the amount of claims covered by the preservation claim includes interest or delay damages incurred from the time of the conclusion of the arguments in fact-finding proceedings after the fraudulent act, and such legal principle also applies to the additional dues of national taxes. Accordingly, in the lawsuit seeking revocation of the fraudulent act in this case, the total amount of KRW 139,492,200 is recognized as the

3. The establishment of a fraudulent act;

A. According to the above facts of recognition, Hong○○ concluded the instant donation contract with the Defendants and donated the proceeds of the transfer of the instant real estate to the Defendants constitutes a fraudulent act by reducing joint security in relation to the Plaintiff, a creditor, barring any special circumstances. In light of the time and circumstances of the instant donation contract, the relationship between Hong○ and the Defendants, and the status of the Red○○○○’s property, etc., Hong○○ appears to have known that the instant donation contract would prejudice the creditors, and in such a case, the Defendants’ bad faith, a beneficiary, is presumed.

B. Determination of the defendants' assertion

The Defendants asserted that, at the time of the instant gift contract, it was difficult to expect that the instant tax claim should be imposed on Hong○○○ at the time of the instant gift contract, and that the Defendants did not know that the instant gift contract was detrimental to other general creditors such as the Plaintiff, etc., because they were talking that the instant real estate would be reported by the broker as the standard market price rather than actual transactions, and that the instant real estate would be exempted from capital gains tax because it was a new apartment and thus, it would not be exempt from capital gains tax.

In light of the above facts, since Red ○○ sold the instant real estate to ○○ in KRW 668,00,000, in full view of the statement No. 5 (including a serial number) and witness testimony and the overall purport of oral argument, since the Defendants did not believe that the instant gift contract was detrimental to the general creditors such as the Plaintiff, there was no other evidence to acknowledge that the Defendants did not know that the instant gift contract was detrimental to the general creditors such as the Plaintiff, etc., the Defendant ○○○, who is an infant of Hong ○○, was selling the instant real estate to ○○○○, for the purpose of having the Defendant ○○○, who was the child of Hong ○○ at the time of the conclusion of the instant gift contract, knew that the transfer income tax was imposed on ○○ by selling the instant real estate, with the broker, for the purpose of having the Plaintiff’s transfer income tax reduced or exempted, the Defendants received the instant tea contract as a sales price and received an amount equivalent to 70% of the actual transaction price as the purchase price.

4. Revocation of fraudulent act and reinstatement;

A. In a case where a debtor has engaged in a series of acts of disposal of several properties in principle, it shall be judged whether each act causes insolvency (see, e.g., Supreme Court Decision 2000Da69026, Apr. 27, 2001). However, when there are special circumstances to regard the series of acts as a single act, it shall be determined as a whole. In such a case, whether the other party to the disposition is the same and whether each disposition is adjacent to the time should be specific criteria (see, e.g., Supreme Court Decision 2002Da23857, Sept. 24, 2002).

B. As seen earlier, both parties to each of the above dispositions are specially related to the children of Hong○○, and the instant gift contract was concluded at the same time and place, and Hong○○ concluded the instant gift contract with the same intent to donate the purchase price of the instant real estate to the Defendants. As such, it is reasonable to deem that there exists a special circumstance to deem that the instant gift contract is a series of acts in accordance with the same intent. As such, it is reasonable to deem that there exists a special reason to believe that the instant gift contract is a single act in respect of the whole of the instant gift contract, which can be evaluated as a single act of the Plaintiff, within the scope of KRW 139,491,200, in total amount of the instant tax claim.

C. However, even in cases where a fraudulent act committed between the debtor and several beneficiaries is revoked, the creditor may exercise the right to revoke the fraudulent act only within the scope of the preserved claim, and in such a case, it is consistent with the equitable principle to divide the amount by proportion of the amount granted based on the fraudulent act in this case subject to the revocation. As such, if the secured claim is divided in proportion to the ratio of the amount received by the Defendants, the pro rata amount shall be calculated as KRW 81,440,056 ( KRW 139,492,199, X390,000,000, KRW 668,000,000,000 for convenience of calculation, and less than KRW 58,052,142,142 ( KRW 139,492,99, KRW 278,000,608,600).

D. Sub-committee

Therefore, within the limit of KRW 81,440,00,000, which was concluded on February 17, 2006 between Hong○ and Defendant Gamb○○○○, the contract between Defendant Lb○ and Defendant Lb○○, was revoked within the limit of KRW 58,052,143, respectively, within the limit of KRW 278,00,00,000, which was concluded on February 17, 2006 between Defendant Lb○ and Defendant Lb○, and each of the above amounts was obligated to pay to the Plaintiff an amount equivalent to KRW 81,440,056, Defendant Lb○○○, Defendant Lb○○, and KRW 58,052,143, and KRW 55% per annum under the Civil Act from the day following the day this judgment became final to the day of full payment.

5. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted for all reasons and it is so decided as per Disposition.