It is difficult to see that a real estate sales contract was concluded to evade tax liability, and there is no intention of deception.

Although a sales contract constitutes a fraudulent act against a creditor, barring special circumstances, since it constitutes an act of selling real estate, which is substantially the only property of the non-party company, and changing it into money which is easily consumed, it is difficult to deem that a sales contract was concluded to evade tax obligations, and it is reasonable to deem that there was no intention to harm the creditor’s joint security at the time of the sales

2012 Gohap 100016 Revocation of Fraudulent Act

Korea

KoreaA

September 26, 2012

October 10, 2012

1. The plaintiff's claim is dismissed.

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

The sales contract concluded on October 15, 2007 between the Defendant and BB with respect to each real estate listed in the separate sheet shall be revoked within the limit of 000 won. The Defendant shall pay to the Plaintiff 5% interest per annum from the day following the day on which the judgment becomes final and conclusive to the day of full payment.

1. Basic facts

The following facts are not in dispute between the Parties, and are described in Gap evidence 1 through 12, evidence 14, evidence 16, and evidence 7, and evidence 7, and may be found in view of the overall purport of the pleadings, and found:

(a) Disposition of non-value added tax on the corporate tax and non-value added tax on Company BB;

(1) BB Co., Ltd. (hereinafter “B”) was established on August 17, 2001 for the purpose of the new construction sale of a building, and was dissolved on December 1, 2010, and filed an annual corporate tax and value-added tax return for each year from 2002 to 2007.

(2) From December 5, 2007 to December 18, 2007, the director of the Seogu Daejeon District Tax Office under the Plaintiff’s jurisdiction conducted a general investigation of corporate tax (hereinafter in this case’s tax investigation 1) on the non-party company, and found that the non-party company omitted tax as above and notified each unpaid portion as set out in the table 1 to 7 below, and notified the non-party company of the correction disposition as set forth in the table 8 to 10 as to the value-added tax for 2007, which the non-party company served on each reported period, and the non-party company did not pay the unpaid portion until now.

B. A real estate sale contract between the defendant and the non-party company

(1) 소외 회사는 대전 유성구 OO동 000 지상에 0층 건물을 신축하여 2002. 2. 9. 소유권보존등기를 경료한 후，위 건물 제0층 제000호，제0층 제000호(제000호는 2008. 12. 9. 제000호와 000호로 분리되었다， 이하 '이 사건 부동산'이라 한다)에 대하여 2005. 9. 14 대전서부QQQQ 앞으로 채권최고액 000원으로 된 근저 당권설정등기를 마쳐주었는데， 이후 대전서부QQQQ의 신청으로 인해 2007. 2. 7 대전지방법원 2007타경3476호로 이 사건 부동산에 대한 임의경매(이하 '이 사건 경매' 라 한다) 절차가 개시되었다. 이 사건 경매는 2회 유찰된 이후 3회 경매 기일이 2007 10. 22로 지정되었다

(2) On October 15, 2007, the non-party company entered into a sales contract with the Defendant for the purchase price of the instant real estate at KRW 000 (hereinafter referred to as “the instant sales contract”), and completed the registration of ownership transfer of the instant real estate with the Dae District Court No. 8316, Oct. 17, 2007 to the Defendant.

(3) 이 사건 부동산에 관한 대전서부QQQQ의 위 근저당권설정등기는 2007. 10. 17 계약해지를 원인으로 말소되었고，이 사건 경매절차는 2007. 10. 22. 취하되었다.

2. Determination on this safety defense

A. Summary of the defendant's assertion

The plaintiff, through the standard balance sheet on December 31, 2006 submitted by the non-party company, was able to know the fact that the non-party company was in capital impaired, and confirmed the fact that the non-party company was selling the real estate of this case through the tax investigation of this case, and the plaintiff, who confirmed, determined, and notified the tax claim on the tax evasion of the non-party company after the completion of the tax investigation of this case, was able to know the reason for cancellation around December 18, 2007. Since the plaintiff filed the lawsuit of this case only on January 16, 2012 after one year from the end of the tax investigation of this case, the lawsuit of this case is unlawful because it was filed with the exclusion period excessive.

B. Determination

The "date on which the creditor of the non-party 1 became aware of the cause for cancellation" in the exercise of creditor's right of revocation means the date when the creditor became aware of the requirements for creditor's right of revocation, and immediately, he knows that the debtor engaged in a fraudulent act. Thus, it is insufficient to grasp the fact that the legal act constitutes an act detrimental to creditor's disposal, and that it is not possible to fully satisfy the debtor's claim because the legal act is insufficient to cover the amount of common security at the expense of the claim, or that there was an intention to harm the debtor. According to the above facts that the non-party 2 was found to have been in excess of the value of the non-party 1's total assets at the time when the non-party 2 was found to have been in excess of the value of the non-party 1's assets at the time of 7th of March 31, 208, and that the non-party 1's tax investigation was conducted by the non-party 2's non-party 1's non-party 1's financial statements.

3. Judgment on the merits

A. Formation of preserved claims

(1) In principle, a claim that can be protected by the obligee's right of revocation needs to be protected before the act was committed, but it is highly probable to the effect that the claim has already been established at the time of the fraudulent act, and that the legal relationship has already been formed in the future, and that it is true in the near future, the claim can also be a preserved claim of the obligee's right of revocation in case the claim has been established. This legal principle also applies to the taxation claim. Therefore, even if there was a basic legal relationship as to the occurrence of the taxation claim even though the taxation disposition has not yet been taken by the specific decision of correction, etc. at the time of the fraudulent act, and it is highly probable that the tax claim has been established specifically in the future through a series of procedure, such as a series of decision of correction, etc. at the time of the fraudulent act, and such taxation claim can be a preserved claim of the obligee's right of revocation (see, e.g., Supreme Court Decision 200Da37821, Mar. 23, 2001).

(2) The liability to pay corporate tax and value-added tax shall come into existence at the end of the taxable period (Article 21(1)1 and 7 of the Framework Act on National Taxes), and the taxable period of the corporate tax shall be the business year, and in the case of a corporation for which there are no provisions in the statutes or the articles of incorporation or the business year, or no provisions are reported to the head of the tax office having jurisdiction over the place of tax payment for the business year, the business year of the corporation shall be January 1el through December 31 of each year (Article 6 of the Corporate Tax Act), and the taxable period of value-added tax shall be from January 1 to June 30 and from July 1 to December 31 of each year (Article 3(1)

(3) Tax claims in the title 1 to 8 of the above table are ① Tax claims in the instant case were established at the end of each taxable period prior to the date of each contract in the instant case, and they fall under the basic legal relationship of the pertinent tax claim that has been disposed of as a conclusive cause thereafter, and ② Tax officials are entitled to conduct a tax investigation by selecting the object and conducting a tax investigation to verify the propriety of the return when it is determined periodically or as necessary (Article 81-6 of the Framework Act on National Taxes) and the right to collect national taxes is five years after the expiration of the statute of limitations (Article 27(1) of the Framework Act on National Taxes). In light of the fact that the tax investigation and its corrective disposition are made before five years elapse from the date of each tax claim establishment, and it is highly probable that the above tax claim is confirmed and confirmed through the instant tax investigation, and the above tax claim becomes the obligee’s right to revocation. However, the tax claims in the title 9 through 10 are not established after the date of the instant sales contract.

B. Whether the act constitutes a fraudulent act

(1) The debtor's act of selling real estate, which is the only property of the debtor, and changing it into money which is easily consumed, constitutes a fraudulent act against the creditor, barring any special circumstance. Thus, the debtor's intent of deception is presumed to be presumed (Supreme Court Decision 2000Da41875 Decided April 24, 2001).

(2) The fact that the non-party company sold the real estate in this case to the defendant on October 15, 2007, and completed the registration of ownership transfer on October 17, 2007 is as seen above. Meanwhile, at the time of the sales contract of this case, the non-party company owned OO00 OO apartment 000 OO apartment 00 in addition to the real estate in this case, the non-party company held YO 000 OO apartment 200, and on September 18, 2007, the auction procedure for the above apartment was initiated on August 4, 2008, 2008, and the apartment was sold to the non-party company on October 17, 2007, and the above apartment was sold to the non-party company at the time of the sale of the apartment, and the above apartment was sold to the non-party company at the time of the sale of the apartment, and there is no special circumstance that the non-party company was the only secured claim in this case.

(c) the existence of an intention to commit harm;

(1) The Defendant asserts that, at the instant auction procedure, the lower auction price up to KRW 000, the Nonparty Company sold the instant real estate at a higher price than it, and the Defendant sold the instant real estate to the Defendant by setting the sales price at KRW 00,000, which was determined to sufficient to repay the debt for the purpose of business normalization by repaying all debts with the purchase price, and the Defendant actually paid KRW 00,000 to the Nonparty Company and repaid the above 00,000 to the above purchase price, and that at the time of the instant sales contract, the intention of the Nonparty Company’

(2) Determination

(A) The so-called obligor’s bad faith, i.e., the obligor’s awareness that the obligor, as a subjective requirement of obligee’s right of revocation, should not prejudice the obligee, that the obligor’s common security of claims is reduced by the obligor’s act of disposal of property and the obligor’s lack of common security, and that the obligee’s claims cannot be fully satisfied due to lack of sufficient common security of claims (Supreme Court Decision 2005Da24493 Decided July 27, 2007). Meanwhile, in determining the obligor’s intention of deception, the obligor’s effort to repay and the obligee’s attitude after the obligor alleged fraudulent act should be based on the circumstances at the time of fraudulent act, and the obligor’s intention to sell and purchase real estate may be considered as indirect facts in determining the existence of intention to harm the obligee (Supreme Court Decision 2001Da5784 Decided Dec. 12, 2003).

(나) 이 사건에 관하여 보컨대，을 제2 내지 4호증， 제7 내지 9호증(가지번호 있는 것은 각 가지번호 포함)의 각 기재，증인 박KK의 증언에 변론 전체의 취지를 더하면，① 이 사건 경매가 2회 유찰된 이후 3회 경매기일에는 최저경매가격이 000원으로 결정되었는데 이는 경매개시 시점의 이 사건 부동산 감정가격인 000원의 49% 수준에 불과한 사실，② 이 사건 부동산 인근 상가인 대전 유성구 OO동 000 OOO 000호의 경매절차가 3번 유찰된 후에 위 부동산이 2007. 7. 30 감정가 대비 47.71%의 가격으로 낙찰된 사실，③ 이 사건 매매계약에 따라 피고는 소외 회사의 은 행계화로 2007. 10. 15. 000원， 2007. 10. 16. 000원， 2007. 10. 17. 000원을 각 송금하여 매매대금 0000원 전액을 현실로 지급한 사실，④ 소외 회사가 2007. 10. 16 국세채무 000원，유성구청에 대한 조세채무 000원，국민건강보험공단에 대한 채무 000원을， 2007. 10. 17 소외 배LL에 대한 채무 000원，대전서부QQQQ에 대한 채무 000원을 각 변제한 사설이 각 인정된다. 앞에서 살펴 본 기초사실 및 위 인정사설에 의하여 알 수 있는 다음과 같은 사정， 즉 ① 이 사건 부동산은 어차피 이 사건 경매 절차를 통해 매각 후 현금화될 것 이 예정되어 있었는데，이 사건 부동산이 경매 절차를 통해 매각될 경우 최저경매가격인 000원 수준에서 매각대금이 결정될 가능성이 높은 상황이었으므로， 피고가 이 사건 부동산을 5억 원에 매수하고 이 사건 경매절차를 중단시킴으로써 소외 회사의 변제 자력이 오히려 증가하였다고 볼 수 있는 점，② 피고가 소외 회사에게 매매대금 000원을 현실로 지급하였고，소외 회사는 이와 같이 수령한 매매대금 중 000원을 채무 변제에 사용한 사설에 비추어 소외 회사는 채무를 변제하고 회사 경영을 정 상화하기 위해 이 사건 매매계약을 체결하였다고 봄이 상당한 점，③ 이 사건 세무조사는 이 사건 매매계약이 체결된 이후에 실시되었고，원고 산하 서대전세무서는 2006 5. 11，소외 회사의 국세체납을 이유로 이 사건 부동산을 압류하고 압류 등기를 경료 해 두었는데，소외 회사가 2007. 10. 17 위 압류의 원인이 된 000원의 국세채무를 변제하자 위 압류 등기를 같은 날 바로 말소한 사정을 고려할 때 소외 회사가 장래의 세무조사와 이에 따른 탈루세액에 대한 경정처분을 예상하고 원고의 조세채무를 면탈하고자 이 사건 매매계약을 체결한 것으로 보기는 어려운 점 등에 비추어 보면，소외 회사는 이 사건 매매계약 당시 채권자의 공동담보에 부족을 초래한다는 인식，즉 사해의사가 없었던 것으로 봄이 상당하다. 피고가 소외 회사의 대표 이사의 사위이고，이 사건 부동산 매매 이전에 소외 회사와 피고가 다수의 부동산 매매계약을 체결하면서 매매가격을 실제 거래가격보다 낮추어서 신고한 적이 있다는 사정은 위 인정에 장애가 되지 않는다. 따라서 이 사건 매매계약 당시 피고 또는 소외 회사가 사해의사로 그 법률행위를 한 것이라는 추정은 복멸되었다고 할 것이다.

4. Conclusion

Then, the plaintiff's claim of this case is dismissed as it is without merit, and it is decided as per Disposition.