If a debtor, who is in excess of his/her obligation, donates real estate to his/her children, it constitutes a fraudulent act, except in extenuating circumstances.

The fact that an obligor, who is in excess of the obligation at the time of the donation contract of this case, donated the real estate of this case to the Defendant, who is a debtor, constitutes a fraudulent act knowing that the act would reduce joint security in relation to the general creditors including the Plaintiff, and would prejudice the general creditors including the Plaintiff, barring special circumstances as seen earlier.

2012 Ghana 4811 Revocation of Fraudulent Act

Korea

KimAAAA

January 16, 2013

February 27, 2013

1. The contract of donation concluded on September 7, 2010 with respect to the real estate listed in the separate sheet 1 between the defendant and KimB, and the contract of donation concluded on September 29, 2010 with respect to the real estate listed in the separate sheet 2 shall be revoked.

2. As to the real estate stated in the attached list 1 attached hereto to the Plaintiff, the Defendant shall have the Seoul Western District Court 2010.

9.7. The registration procedure for the cancellation of the ownership transfer registration completed under No. 88875, and the registration procedure for the cancellation of ownership transfer registration completed under No. 19351, Sept. 30, 2010, with respect to the real estate stated in No. 88875, and the list No. 2

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

The same shall apply to the order.

1. Basic facts

A. On September 24, 2009, KimB sold No. 0000 of the Daegu Seo-gu Office to EO on September 24, 2009, and sold No. 00000 of the Daegu Seo-gu Office to Eo on January 6, 2010, he did not report the tax base of transfer income. Accordingly, the director of the tax office affiliated with the Plaintiff notified KimB that the transfer income tax of 000 won for the transfer income tax of 2009 and December 1, 2010 should be paid to EO by December 31, 2010.

B. Meanwhile, on September 7, 2010, KimB entered into a contract with the defendant, who is his own son, to donate real estate listed in the separate sheet 1 (hereinafter referred to as "real estate 1") and completed the registration of ownership transfer on the same day, and on September 29, 2010, entered into a contract with the defendant to donate real estate listed in the separate sheet 2 (hereinafter referred to as "second real estate"), and completed the registration of ownership transfer on the above real estate to the defendant on September 30, 2010 (hereinafter referred to as "the donation contract of this case").

C. At the time of the instant donation contract, KimB’s active property was each real estate listed in the separate sheet (Article 1 real estate 000 won, and Article 200 won for the second real estate), but the small property was in excess of its obligation due to KimB’s obligation of capital gains tax (excluding additional dues) against the Plaintiff.

[Ground of Recognition] The non-contentious facts, Gap evidence 1, 2, and 4 through 7, and the market price appraisal results for the original O of this Court, and the purport of the entire pleadings

2. The assertion and judgment

A. Formation of preserved claims

In principle, a claim that can be protected by obligee's right of revocation should have arisen before a juristic act for the purpose of property right with the knowledge that the obligor would prejudice the obligee. However, it is highly probable that at the time of the juristic act, there has already been a legal relationship that forms the basis of the establishment of the claim, and that the claim would have been created based on the legal relationship in the future, and that the probability has been realized in the near future, and the claim may also become a preserved claim against the obligee's right of revocation (see, e.g., Supreme Court Decision 2000Da37821, Mar. 23, 2001). According to the above basic facts, the Plaintiff's claim against KimB at the time of the donation contract of this case was not yet finalized, but since KimB's transfer of real estate, which forms the basis of the establishment of the transfer income tax claim of this case, was highly probable as the Plaintiff's claim against the transfer of real estate in this case was actually created on September 24, 2009 and 10B.

B. Establishment of fraudulent act

The fact that an obligor KimB, who is in excess of the obligation at the time of the instant donation contract, donated the instant real estate to the Defendant, who is the Plaintiff, constitutes a fraudulent act knowing that the act would reduce joint security in relation to the general creditors including the Plaintiff, and would prejudice the general creditors including the Plaintiff, and the Defendant, who is the beneficiary, was presumed to have known that the donation was a fraudulent act detrimental to the other creditors framework of KimB.

C. Judgment on the defendant's argument

(1) Grounds for abuse of rights

Since the market price of the first real estate is at least 000 won, it is sufficient to exercise the creditor's right of revocation only for the first real estate, the defendant asserts that exercising the creditor's right of revocation also for the second real estate exceeding the amount of the plaintiff's preserved claim is abuse of right. The fact that the market price of the first real estate is at least eight million won, and the total amount of the present real estate does not reach the amount of the plaintiff's preserved claim, and therefore, the defendant's above assertion on a different premise is without merit.

(2) The title trust claim

피고는， 제2부동산은 피고의 아버지 김ㅁㅁ이 매수하여 그 소유명의만을 김BB에게 한 것인데， 김ㅁㅁ이 지병으로 건강이 나빠지자 장남이 피고에게 위 부동산의 관리를 맡기기 위해 증여한 것이므로 원고의 청구에 응할 수 없다는 취지로 주장한다. 살피건대，을 제1호증의 1 내지 6의 각 영상， 을 제2， 3호증의 각 기재만으로는 OO이 김BB에게 제2부동산을 명의신탁하였다는 사실을 인정하기 부족하고 달리 이를 인정할 증거가 없으므로 이와 다른 전제에 선 피고의 위 주장은 더 나아가 살펴볼 필요 없이 이유 없다.

(d) Revocation of fraudulent act and reinstatement;

Therefore, the instant donation contract concluded between KimB and the Defendant upon the Plaintiff’s exercise of the Plaintiff’s right of revocation shall be revoked in entirety, and the Defendant is obliged to implement the procedure for registration cancellation of each transfer of ownership as stated in Paragraph (2) of this Article by restoring the original state following the revocation

3. Conclusion

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