Revocation of Fraudulent Act

Since active property exceeds a small-sized property, the contract of stock donation does not constitute a fraudulent act.

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

2016 Gohap 203388 Revocation of Fraudulent Act

Korea

1. ParkA, 2. KimB

oly 28, 2016

2016.12.09

1. Of the instant lawsuit, the part regarding Defendant Park Jong-A regarding the instant lawsuit was terminated on November 10, 2016 as the withdrawal of the Plaintiff’s lawsuit.

2. The plaintiff's claim against defendant KimB is dismissed.

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

Cheong-gu Office

Defendant KimB and thisCC cancel the gift agreement concluded on September 30, 2014 with respect to 10,000 common shares of D D issuance and 5,000 common shares of D issuance of GG Development Co., Ltd.

Defendant KimB shall transfer 10,00 common shares of DD issuance and 5,000 common shares of GG Development Co., Ltd. to thisCC, and notify Defendant KimB that it was transferred to D and GG Development Co., Ltd.

1. Basic facts

A. ThisCC received a donation of the sum of KRW 1 billion in cash around May 17, 2012, including KRW 3 billion in cash, around December 21, 2012, from Park Jong, a legal husband, and KRW 4 billion in cash.

B. On February 31, 2015, the Plaintiff-based MCC’s MM tax secretary decided to pay gift tax amounting to KRW 175,824,00 and KRW 1,709,952,00,00,000 among the above amount until now, thisCC paid only the amount equivalent to KRW 1,260,00,000 among the above amount. As of May 31, 2016, the amount in arrears, such as gift tax, etc. of thisCC as of May 31, 2016 = 728,851,980 + principal tax + KRW 627,341,70 + additional tax amounting to KRW 174,637,160 (hereinafter “instant gift tax”).

C. On September 30, 2014, thisCC donated 10,000 common share shares of DD issuance (value of KRW 320,000,000) and 5,000 common share shares (value of KRW 70,000,000) issued by GG Development Co., Ltd. (hereinafter referred to as “instant shares”) to Defendant KimB, and around that time, Defendant KimB completed the transfer of ownership procedure for the instant shares.

[Ground of Recognition] Unsatisfy, Gap evidence Nos. 1 through 3, 5, 7, 8

2. Determination as to the lawsuit between the Plaintiff and Defendant Park A

On October 26, 2016, the Plaintiff excluded the part of the claim made against the Defendant Park Poe in filing an application for modification of the purport of the claim and the cause of the claim. It is reasonable to deem that the lawsuit against the Defendant Park Poe is withdrawn in light of the amended cause of the claim. Accordingly, on November 10, 2016, two weeks after the filing date of the application reached the Defendant Park Poe, the part of the claim against the Defendant Park Poe was terminated by withdrawal of the lawsuit in accordance with Article 266(6) of the Civil Procedure Act.

3. Determination on the Plaintiff’s claim against Defendant KimB

(a)the existence of preserved claims;

Although it is required that a claim that can be protected by the obligee’s right of revocation has arisen prior to the commission of an act that could be viewed as a fraudulent act in principle, there is a high probability that at the time of the fraudulent act, there has already been legal relations that would be the basis for the formation of the claim, and that the claim would be established in the near future, and where a claim has been created as a result of the realization of the possibility in the near future, the claim may also become a preserved claim of the obligee’s right of revocation in the near future. Such legal principles apply to a claim for taxation, even if a claim has not yet been established at the time of a fraudulent act, where a legal relationship that serves as the basis for the establishment of the claim was created, and where a claim was established specifically through the procedure of taxation such as a high probability of establishing the claim in the near future.

In addition, when a creditor exercises his/her right of revocation, in principle, he/she cannot exercise his/her right of revocation in excess of his/her claim amount. The creditor's claim amount includes interest or delay damages incurred after the fraudulent act and the time the conclusion of the arguments in fact-finding proceedings is included in the creditor's claim amount. Meanwhile, the additional dues under Article 21 (1) and (2) of the National Tax Collection Act are the kind of incidental tax imposed in the meaning of interest on unpaid portion if national taxes are not paid by the due date, and if national taxes are not paid by the due date without the due date of payment without the due date of payment by the due date, the amount naturally accrued and the amount thereof is determined by the above provision. Therefore, as long as a gift tax claim is recognized as a creditor's right of revocation as a creditor's right of revocation, the amount of the gift tax includes the additional dues accrued after the fraudulent act and the time of the closing of arguments in fact-finding proceedings (see, e.g., Supreme Court Decisions

The above duty to pay gift tax constitutes a basic legal relationship equivalent to KRW 728,851,980, which has been disposed of in the future after this obligation to pay gift tax was created after thisCC received cash KRW 4 billion from Park E-E and became abstract. In light of the fact that the Plaintiff did not report and pay the above gift tax, thereby imposing gift tax in this case on thisCC, it was highly probable that this case’s gift tax claim should be established in the near future in the near future from the point of the point of the gift of this case, and its probability has been realized in the near future, and the gift tax claim of this case has been specifically established since this case’s gift tax claim of this case can be a preserved claim of the obligee’s right to revoke.

(b) Fraudulent act;

(1) Relevant legal principles

"Juristic act detrimental to a creditor, who is the requirement for creditor's right of revocation, is an act of disposing of the debtor's property, and thereby means that it is impossible to fully satisfy the creditor's claims due to a decrease in the debtor's assets or a lack of joint security in the situation where the debtor's assets are insufficient due to a decrease in the debtor's assets. Thus, such fraudulent act may be established not only where the debtor has already been in excess of his/her obligations prior to the disposal of assets, but also where the debtor is in excess of his/her obligations due to the pertinent disposal act."

㈎ 이 사건 증여계약이 이루어진 2014. 9. 30. 당시 이CC 재산은 아래 표인 사실, 표 ②, ③ 기재 주식은 이 사건 주식인 사실 등은 당사자 사이에 다툼이 없다.

㈏ 이 사건 주식이 이 사건 증여계약으로 처분됨으로써 적극재산이 줄어들어 표 기재 금액 상당이 된다.

㈐ 표 ⑥ 기재 주식에 관하여 원고는, 이CC가 박EE으로부터 명의수탁한 재산이므로 이 사건 증여계약으로 인한 적극재산은 표 기재 금액이므로 이 사건 증여계약에 의하여 채무초과 상태에 빠졌다고 주장한다.

According to the statement in Gap evidence No. 17, it is recognized that the shares indicated in Table 6 were owned by thisCC, and that the shares were transferred to ParkE on or around the end of 2015. However, as alleged by the plaintiff, insofar as the trustr does not terminate even if the above shares were property related to title trust between the parties, it is reasonable to view the above shares as the property owned by thisCC in relation to the third party, including the plaintiff, as long as the trustr does not terminate the trust. The evidence submitted by the plaintiff alone is insufficient to deem that the title trust of the plaintiff's assertion on the above shares was terminated at the

Therefore, since the active property of thisCC is equivalent to the amount indicated in the table at the time of the instant donation contract, and the passive property is equivalent to the amount indicated in the table, it is difficult to deem that thisCC had a status of exceeding its liability or that it was omitted from its liability due to the instant donation contract.

(6) The shares indicated in the table 6 were owned by thisCC since the time the Park E acquired the said HH corporation around 1970. On March 2012, Park E-E expressed the intention to terminate the title trust of the shares of the said company to Park E-E. On the other hand, since Park E-E donated the said shares to thisCC at the time of the acquisition of the said company, it cannot be ruled out that the said shares were transferred to Park E-E in the course of negotiations or arranging the distribution of property among them, the shares of the said company, etc.

In addition, there is no dispute between the parties, or the following facts and circumstances that are recognized or known when adding the purport of Gap evidence and the entire argument, namely, thisCC appears to have received the above 4 billion won under the pretext of property division, etc. i.e., the circumstances leading to the imposition of the gift tax in this case, including the circumstances leading up to the imposition of the gift tax in this case, and thisCC appears to have not been aware of the subject matter of the gift tax in relation to the above 4 billion won. Furthermore, it seems that the old CC did not have the property in this case since it was the reason for the stocks in this case, and it would have tried to divide its property into descendants by donation of the stocks in this case to the defendant KimB, a family member of this case. Defendant KimB reported the gift tax on the stocks in this case to the lower court on December 2, 2014. Furthermore, it is sufficient to view that the remaining CC had no obligation to lease the real property in this case, such as the secured debt amount, lease deposit amount, 8600 million won, etc.

4. Conclusion

Therefore, since the lawsuit between the plaintiff and the defendant Park Dong has been terminated as the withdrawal of lawsuit, the termination declaration of lawsuit shall be made, and the plaintiff's claim against the defendant KimB shall be dismissed as it is without merit, and it is so decided as per Disposition.