Whether the exclusion period of a lawsuit seeking revocation of a fraudulent act is expired, and whether the fraudulent act and the intention to commit fraud exist.

In light of the fact that a disposition of taxation is imminent and a gift contract is concluded, it is deemed that the above gift contract would have known that it would prejudice other creditors including the plaintiff, and thus, it constitutes a fraudulent act.

Article 406 of the Civil Code / [Right of Revocation]

1. On April 19, 2005, each gift contract concluded on April 19, 2005 between the defendant and Kim○ (○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, 370 meters, such as a written notice of the origin, is revoked.

2. The defendant on April 2005, 2005, the Daegu District Court of Justice as to each of the above real estate to Kim○○○.

19. The procedures for registration of cancellation of each transfer of ownership completed under Article 9929 shall be complied with.

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

The same shall apply to the order.

1. Facts recognized;

A. The plaintiff imposed corporate tax on the ○○○○○○○○○○ (hereinafter the "non-party company") with the defendant’s wife as the representative director on March 31, 2005 and did not pay it. On May 30, 2005, the non-party company’s representative director, who held 40% of the shares issued by the above company, as the secondary taxpayer under Article 39 of the Framework Act on National Taxes, imposed corporate tax on the 25,394,720 won (including additional dues 2,096,780 won) until June 9, 2005, and the above disposition of imposition on the ○○○○○○○○○ (hereinafter the above disposition of imposition on the non-party company) around June 3, 2005.

B. On the other hand, on April 19, 2005, ○○○○○○○○○○, the only real estate owned by ○○○○○○, ○○○○○, ○○○○○○, ○○○○○○○, 2,370 meters, entered into a donation contract with the Defendant, who is his husband, regarding each of the instant lands, and completed the registration of ownership transfer for each of the instant lands on the same day (Seoul District Court No. 9929). At the time of entering into the donation contract, there was no special property other than each of the instant lands.

[Ground of recognition] Each entry of Gap evidence 1 to Gap evidence 8-2 (including additional number), and the purport of the whole pleadings

2. Determination on the defense prior to the merits

As to the plaintiff's assertion that the contract of this case entered into between the defendant and Kim ○, should be revoked because it is a fraudulent act, the defendant, on April 19, 2005, at the time of the plaintiff's fraudulent act, the plaintiff, who is the tax payer, was aware of the conclusion of the contract of this case, by reading the register through the computer network, which was at the time of the plaintiff's fraudulent act. Thus, the lawsuit of this case was filed one year after the date when the plaintiff became aware of the grounds for revocation, and it is unlawful as it is asserted that the plaintiff was aware of the above fact through the computer network as of April 19, 2005, which is the date when the contract of this case was entered into, and there is no other evidence to acknowledge the fact of the plaintiff's awareness of the grounds for revocation. Thus,

3. Judgment on the merits

(a) Occurrence of preserved claims;

In principle, a claim that can be protected by the obligee's right of revocation needs to be created prior to the commission of an act that can be viewed as a fraudulent act. However, if there is a high probability that at the time of the fraudulent act, there has already been legal relations that form the basis of the establishment of the claim, and that the claim should be established in the near future, the claim may also become a preserved claim in the near future.

According to the above facts, since the plaintiff's taxation claim against the non-party company, that is, corporate tax claim in 2003, had already expired at the time of the gift contract in this case or the statutory due date of return, the plaintiff's taxation claim against the non-party company, the representative director and the shareholder of the non-party company, also has legal relations that form the basis of its establishment at the time of the donation contract in this case, and as long as the non-party company had not already paid corporate tax in 2003, it was highly probable that the second tax obligation of Kim ○ was created in the near future. In fact, the possibility was realized around May 30, 2005 and the plaintiff's taxation claim against the non-party ○○ became final and conclusive, the plaintiff's taxation claim against the non-party ○○ becomes the preserved claim of creditor's right of revocation.

In regard to this, the defendant asserts to the effect that Kim ○ is not a real representative director, and there is no secondary person liable for tax payment, so the taxation disposition is valid until it is lawfully revoked through the process of administrative action or the executory power, so the effect of the taxation disposition cannot be denied in the civil procedure (see Supreme Court Decision 99Da20179 delivered on August 20, 199), even if Kim ○ is recognized that it is not a real representative director of the non-party company, and thus, even if the disposition of this case was unlawful, it cannot be deemed that the defect is serious and obvious, and only can be revoked in the civil procedure of this case, which is a civil procedure, the validity of the taxation disposition of this case cannot be denied. Thus, the defendant's above assertion cannot be denied.

(b) The existence of the intent to commit fraudulent acts and to injure himself;

As seen earlier, in light of the fact that at the time of the instant donation contract, the non-party company had already not paid corporate tax for the year 2003, and that the instant disposition of taxation against the Plaintiff Kim ○○ was imminent and concluded the instant donation contract, Kim ○ was deemed to have known that the said donation contract would prejudice other creditors including the Plaintiff, and the Defendant is presumed to have also known such circumstances.

Although the defendant has proved that he had known that he had been detrimental to the plaintiff or other creditors at the time of the donation contract of this case, it is not enough to recognize the above only the descriptions of the evidence Nos. 1, 2, 6-1, 6-2, 8-1, 2, 3, 16 and the testimony of the witness Kim ○ as well as the testimony of the witness Kim○, and there is no other evidence to acknowledge them.

C. Sub-decision

Therefore, since the donation contract of this case is a fraudulent act, it is revoked, and the defendant is obligated to implement the procedure for cancellation registration of each transfer of ownership to Kim○-○ for each land of this case.

4. Conclusion

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