The act of making provisional registration of one's own property to the wife is a fraudulent act unless there are special circumstances.

The instant real estate, the sole property of which is one’s own property under the burden of tax liability, was pre-contracted to the Defendant, who is the wife, and subsequently provisional registration was completed. The obligor’s active property under the instant sales promise and provisional registration did not reach a negative property, i.e., a state of excess of the obligation, barring any special circumstance, constitutes a fraudulent act.

Article 406 of the Civil Act, the obligee's right of revocation

2013da15459 Action for revocation, etc.

Korea

○ Kim

May 30, 2014

June 3, 2014

1. The purchase and sale reservation entered into on March 12, 2012 and the sales contract entered into on January 30, 2013, between the Defendant and Aa, respectively, shall be revoked.

2. On March 12, 2012, the Defendant shall implement the registration procedure for cancellation of ownership transfer registration completed on February 21, 2013 with the registration of ○○ court with respect to the real estate stated in the separate sheet to Aa, the provisional registration for the right to claim ownership transfer completed on March 12, 2012, and each registration procedure for cancellation of ownership transfer registration completed

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

The same shall apply to the order.

1. Facts of recognition;

(a)the formation of tax claims;

Aa runs a construction business under the trade name of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, which was the Plaintiff’s head of the tax office, given notice of value-added tax, etc. to Aa as follows, but aa did not pay it.

(b)the reservation and sales contract between aa and the defendant;

1) The Defendant is the wife of aa, bB, the wife of aa, and the wife of aa.

2) On March 12, 2012, aa entered into a pre-sale agreement (hereinafter referred to as "the pre-sale agreement of this case") with the Defendant on the real estate listed in the separate list Aa (hereinafter referred to as "the real estate of this case") and each of the following real estate (hereinafter referred to as "other real estate owned by A") as indicated in the separate list Aa (hereinafter referred to as "the provisional registration of this case") and completed the provisional registration of the right to claim ownership transfer (hereinafter referred to as "the provisional registration of this case") on the same day with respect to the real estate of this case and other real estate owned by Aa (hereinafter referred to as "the real estate of this case").

① ○○○○○○○○○○○○○○○○ 761 square meters.

② ○○○○○○○○○○○○○○○○○○○ 832 square meters on the ground, and a lub roof 89.46 square meters on the ground, 89.46 square meters on the multi-story, and 81.9 square meters on the lub roof of an affiliated building.

③ ○○○○○○○○○○○○○○○○○○, and 50 square meters on its ground, earth, bricks, and coagulations, apapap, one house, 9-3 Hobbes, and 9-37.

④ ○○○○○○○○○○○○○○○ 17 square meters

3) On February 21, 2013, with respect to the instant real estate, sale and purchase on January 30, 2013 (hereinafter “sale and purchase”).

The principal registration of ownership transfer based on the above provisional registration (hereinafter referred to as the "registration of ownership transfer of this case") was completed in the future of the defendant as the sales contract of this case.

(c)The real estate(a) was the only property Aaa at the time of promise to sell and purchase this case.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 10, purport of the whole pleadings

2. Determination

A. Judgment on the ground of the plaintiff's claim

1) The base point for determining fraudulent act

A) Summary of the Defendant’s assertion

The base point of time to determine a fraudulent act is at the time of the juristic act that caused the provisional registration, and the juristic act that caused the provisional registration of this case was conducted on December 26, 2011, not on March 12, 201, which is the date of promise to sell or purchase on the register. In other words, Aa, on December 26, 2011, prepares a loan certificate and a letter with the intent to transfer the real estate to the Defendant when it is impossible to repay the amount under the loan certificate by the end of the year of December 26, 2012. As such, the base point of time to determine a fraudulent act should be December 26, 201.

B) Determination

(1) In a case where a principal registration has been made on the basis of provisional registration, whether a legal act which is the cause of provisional registration and a legal act which is the cause of principal registration are not clearly different shall be determined at the time of the juristic act which is the cause of provisional registration (see, e.g., Supreme Court Decision 9Da2515, Apr. 9, 199).

(2) As alleged by the Defendant, the Defendant’s assertion cannot be accepted on the ground that the Plaintiff did not believe that the juristic act that caused provisional registration was conducted on December 26, 2011, and that it was consistent with the Plaintiff’s statement No. 18-2 (each note) cannot be considered as a pre-contract for sale and purchase, which is the cause of the provisional registration of this case, on December 26, 2011. Even if the Defendant prepared and delivered the evidence No. 18-2 (each note) to the Defendant on December 26, 2011, each of the above statements promised to repay the borrowed money by December 31, 201, and provided that if the payment was not made by December 31, 2011, it is merely a promise to transfer the real estate of Aa to the Defendant’s name, which is the pre-contract for sale and purchase, which is the cause of the provisional registration of this case. Therefore, the Defendant’s assertion is without merit.

(3) Therefore, the base point of time for determining a fraudulent act is March 12, 2012, which is the date of trade reservation, which is the legal act that caused provisional registration.

(ii) the existence of the preserved claim

A) At the time of the fraudulent act, there has already been legal relations that form the basis for the establishment of the claim; and

In the near future legal relations, there is a high probability that a claim should be established in the near future, and in the near future, where a claim has been established as a result of realization in the near future, such claim may also become a preserved claim (see, e.g., Supreme Court Decision 2004Da53173, Aug. 19, 2005).

B) A preserved claim;

(1) In the instant case, the Plaintiff’s claim for value-added tax on February 2, 201, and the earned income tax claim on February 2012 constituted a tax liability prior to March 12, 2012, which is a juristic act that caused provisional registration, as at the time of the instant purchase and sale reservation, which is the juristic act

(2) Although the Plaintiff’s remaining tax claims were established after March 12, 2012, the date of concluding the instant trade reservation, which is a juristic act causing provisional registration, it shall be deemed that the value-added tax and global income tax were imposed in relation to the transaction or income that occurred during the taxable period, and there was a high probability that there was a legal relationship which is the basis of establishment of the taxation claim prior to March 12, 2012, which is the date of concluding the instant trade reservation, and that there was a high probability that specific taxation claim should be established based on such legal relationship in the near future. As such, the probability is realized and it was established on the date of establishing each tax liability in the said table, the obligee’s right of revocation

3) Whether a fraudulent act was committed

A) Summary of the Defendant’s assertion

Aa, under the trade name of ○○, was engaged in construction business normally and was paid taxes from time to time.Aa has a claim for unpaid debts and owned several real estate, such as housing sites, buildings, and farmland, so it cannot be concluded that it is a debt excess.

B) Determination

Aa. We examine whether the instant real estate had other property than the instant real estate at the time of the promise to sell and purchase the instant real estate, and there is no other evidence to acknowledge it. Aa has completed provisional registration or registration of transfer of ownership with respect to all the instant real estate in accordance with the delinquent amount under Aa. The Plaintiff filed a claim for this case only for the instant real estate, which is part of the instant real estate, in accordance with the delinquent amount under Aa... However, the Defendant appears to have asserted as above on the erroneous premise that the Defendant did not complete provisional registration or registration of transfer of ownership with respect to “other real estate owned by Aa” in addition to the instant real estate as the subject of the instant claim, and that the Defendant did not have completed provisional registration or registration of transfer of ownership. This is an assertion by mistake or mistake on the erroneous premise that Aa had the aforementioned assertion.

Aa has made a promise to sell and purchase the instant real property, the sole property of which is one of the instant real property, under the status of having a tax obligation against the Plaintiff as above, to the Defendant, who is the wife, and the provisional registration of this case was completed based on the promise to sell and purchase the instant real property and the provisional registration of this case. The active property of Aa, as the promise to sell and purchase the instant real property and the provisional registration of this case, did not reach a negative property, i.e.

4) Sub-determination

Thus, the reservation for sale and purchase of the instant real estate shall be revoked as a fraudulent act, and the Defendant shall be obligated to implement the provisional registration of the instant real estate and the procedure for cancellation registration of ownership transfer registration of the instant real estate to aa for restitution to its original state.

B. Judgment on the defendant's argument

1) Summary of the defendant's assertion

A) CC is an agent of BB, the wife of Aaa. Aa. Aa borrowed KRW 100 million from CC on September 1, 1991. AA was unable to repay the above loan to CC upon the lapse of a period of time thereafter. Accordingly AA promised to pay KRW 165,00,000 to CC.

Aa requested the Defendant, who was the first South Korea, to pay the above loan by subrogation.

Thus, until February 8, 2011, the defendant paid 165,000,000 won to cC on behalf of Aa and repaid the debt of Aa with respect to cC.

B) Aa entered into the instant sales promise and sales contract with the Defendant regarding the instant real estate in relation to the obligation of subrogated payment of KRW 165,000,000, and completed the instant provisional registration and the instant registration of transfer of ownership, and paid in kind.

C) Since the Defendant did not know at all that the Plaintiff’s above taxation claim was established against Aa, it is not a fraudulent act.

2) Determination

A) It is not sufficient to acknowledge only the statement of No. 9 and No. 10, as alleged by the Defendant, that aa bears the obligation of the borrowed money to c as alleged by the Defendant, and there is no other evidence to acknowledge it.

B) Each entry in the evidence Nos. 12, 13, and 14-1, 17, and 18-1, 12, 13, and 14-1, 17, and 18, which appears that the Defendant subrogated to ccc for the obligation of borrowed money under Aa, are without any evidence to prove that Aa bears the obligation of borrowed money as alleged by the Defendant; 2, ccc in which each of the above documentary evidence is prepared, is not trusted by the Defendant, in light of the fact that the Defendant is the Defendant’s agent, cc in which the above documentary evidence Nos. 12, 13, 14-2, 15, and 16-2, 15, and 16-1, are insufficient to acknowledge it, and there is no other evidence to prove it otherwise.

(c) whether aa was paid in lieu of the defendant

(1) Aa cannot be deemed to have paid in kind the instant real estate to the Defendant, inasmuch as there is no evidence to support that Aa bears the obligation of the borrowed money to cc or that the Defendant subrogated to cc for the obligation of the borrowed money under Aa.

(2) Even if payment in kind was made in accordance with the Defendant’s assertion, if the debtor’s responsible property decreased, thereby resulting in excess of his/her liability, such act shall be deemed as a fraudulent act, barring any special circumstances.

D) Whether the defendant acted in good faith or not

The defendant, a beneficiary, is presumed to be bad faith, and the evidence presented by the defendant alone is insufficient to reverse the presumption (in light of the relationship between Aa and the defendant, the circumstances leading up to the establishment of the above taxation claim, the developments leading up to the reservation of the sale and purchase of this case, and all the circumstances as seen earlier, the defendant seems to have known that the plaintiff's taxation claim against Aa is established at the

E) Therefore, the defendant's assertion is without merit.

3. Conclusion

Thus, the plaintiff's claim of this case is accepted on the ground of the reasons.