Suwon District Court, Goyang Branch 2010 Gohap12623, 2011.22

No obligation to return to the original state in the amount of property division paid due to marriage resolution;

The money paid to the defendant is deemed to have been donated to the defendant under the pretext of consolation money and division of property due to a reason attributable to the marriage settlement, and if a divorce is established after the marriage, it shall be settled through division of property, etc.

2011Na84214 Return of Fraudulent Gains

Korea

XX Kim

Suwon District Court Decision 2010Kahap12623 decided September 22, 2011

May 29, 2012

June 21, 2012

1. The plaintiff's appeal is dismissed.

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

1. Purport of claim

Each division of property indicated in the separate sheet 1 and 2 concluded on April 17, 2008 between the defendant and the leastA shall be revoked, and the defendant shall pay to the plaintiff 5% interest per annum from the day after the day when the judgment became final and conclusive to the day of complete payment.

2. Purport of appeal

The part of the judgment of the first instance against the plaintiff shall be revoked.

The division of property between the defendant and the leastA shall be revoked in accordance with the attached Table 2 concluded on April 17, 2008.

The defendant shall pay to the plaintiff 00 won with 5% interest per annum from the day following the day when this judgment became final and conclusive to the day of complete payment.

1. Quotation of judgment of the first instance;

The reasons for this case are as follows: ① the third party decision of the first instance, ② the defendant deleted on July 25, 2006, the part that the defendant paid KRW 000,000, out of the above money to LeeB, a creditor of the last instance decision of the first instance, and ② whether the fraudulent act of the fifth party to the 21st through 8th party decision of the first instance is constituted and the right of the claim for restitution of the original status of the second party to the second party decision of the first instance, and the second party to the 4th party decision of the first instance is the same as the corresponding part of the first instance decision of the court of the first instance in addition to the entry. Thus, this part is cited in accordance with the main sentence of Article 420 of the

3) Whether the fraudulent act was established

A) In light of the fact that the division of property following divorce is a system that has the nature of support to the other party, which is the liquidation of the common property formed through mutual cooperation between the parties during marriage, the division of property following divorce is a result of reducing the joint security against general creditors by transferring a certain property to the other party while the debtor in excess of his/her debt is divorced and transferring a certain property to his/her spouse as a result of the division of property. However, barring any special circumstance to recognize that the division of property is excessive beyond a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act, the division of property shall not be revoked as a fraudulent act; however, if there are special circumstances to deem that it exceeds a considerable degree, the exceeding part may be subject to revocation as a fraudulent act; and there are special circumstances to deem it as excessive division of property beyond a considerable degree (see, e.g., Supreme Court Decisions 200Da14101, Jul. 28, 200; 206Da3258, Sep. 14, 2006)

B) First, the fraudulent act subject to creditor's right of revocation refers to "the act of reducing debtor's responsible property that arouses or deepens the shortage of common security for general creditors." Therefore, it is examined as to whether the division of property of this case 1 and 2 results in the reduction of the common security for the general creditors including the plaintiff.

As seen earlier, the Defendant paid KRW 00 to the Defendant on July 11, 2006 upon the request of the leastA. In other words, the Defendant and the leastA, after marriage, had the right to claim consolation money and division of property against the maximumA, filed an application for provisional disposition of the prohibition of disposal of real estate under the Seoul District Court Branch 97Kahap1154 with the Defendant’s right to claim consolation money and division of property as the preserved right. Since the fact that the maximumA and the Defendant decided to divorce on December 22, 2004, were either paid KRW 100 to the Defendant at the time of divorce, or that the Defendant did not have any other reason to view that the Defendant had been able to obtain consolation money at the time of divorce by taking into account the fact that the Plaintiff had been able to view that there was no other reason to view that the Defendant had been 00 U.S.’s most debts at the time of marriage and the registration of the creation of property at the time of divorce.

The second division of property of this case is merely a re-verification of the property disposal on July 11, 2006 against the defendant of the leastA as above. Thus, the property division of the second division of property of this case cannot be deemed to have reduced since the second division of property of this case.

On the other hand, the part of the first division of property of this case is that the largestA pays 000 won to the division of property until October 17, 2008, which causes the reduction of the responsibilities of the largestA.

C) Next, we examine whether the division of property of this case 1 constitutes a fraudulent act beyond a considerable degree as a division of property.

In the instant case, the following circumstances revealed by comprehensively taking account of the aforementioned basic facts and the purport of the entire arguments, namely, the fact that the leastA did not own any active property in excess of the debt as of April 17, 2008, which was the date when the division of property is constituted, and the Defendant is a family owner with no particular occupation or income, and the mostA’s obligation to pay capital gains tax against the Plaintiff should be included in the scope of the small property subject to liquidation. However, even though the above tax liability was not divided, the fact that the mostA bears all the above tax liability and the Defendant did not share all the above tax liability. Even if the divorce between the Defendant and the LA was caused by the cause attributable to the leastA, the division of property in this case constitutes a fraudulent act, which exceeds a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act, and constitutes a fraudulent act.

The Defendant received KRW 00 on July 11, 2006 and paid KRW 000 on July 25, 2006 upon request of the leastAB, which was the creditor of the NA, paid KRW 00,000 out of the above money. The first division of property in this case was again paid KRW 00,000, which is not an excessive division of property. However, the part of the evidence No. 5, consistent with the Defendant’s assertion that the Plaintiff paid KRW 00,00, is merely a conciliation application for divorce, and there is no other evidence to acknowledge the Defendant’s assertion on the sole basis of the evidence No. 6, and there is no other evidence to acknowledge it. Rather, in light of the evidence No. 6, No. 7, and the result of the financial transaction information meeting of the NA court of the first instance, it is difficult to view the Defendant’s claim that the Defendant paid KRW 00,000 to the creditor of the NA’s account under the name of 00,7006, etc.

D) If so, the division of the property of this case between the defendant and the leastA is deemed to be a fraudulent act detrimental to the creditor by the leastA, which had already been in excess of his/her obligation, reduced his/her own property and caused the lack of joint security of his/her claim. The intent of the leastA to commit suicide is recognized, and the defendant's bad faith is presumed.

4) Appropriateness of the claim for restitution

If the bestA pays KRW 000 to the Defendant according to the first division of property of this case, there is no evidence to acknowledge it.

On the other hand, the Plaintiff asserts to the effect that since the Defendant did not pay KRW 000 to B on July 25, 2006, the Plaintiff shall restore the amount of KRW 000 to its original state. However, as determined earlier, the Defendant’s failure to pay KRW 000 to B on July 25, 2006, on the ground that the amount of KRW 00,000 paid to the Defendant should be deemed to have been reverted to the Defendant at the time of payment. Therefore, it cannot be said that the Defendant ought to return the amount of KRW 00 to its original state.

Ultimately, the plaintiff's assertion seeking restitution is without merit.

2. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.