The requirements for obligee's right of revocation

At the time of the gift contract, there was a high probability of the establishment of the claim, and when the tax claim becomes final and conclusive due to the reality of the claim, the tax claim is the preserved claim of the creditor's right of revocation.

Article 30 (Cancellation of Fraudulent Act) of the National Tax Collection Act

1. The contract of donation concluded on May 21, 2005 between the defendant and Lee ○○ shall be revoked.

2. The defendant shall implement the procedure for the registration of cancellation of ownership transfer registration completed by the ○○○○ District Court on May 24, 2005, which completed the registration of cancellation of ownership transfer as of May 24, 2005, to the plaintiff.

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

The same shall apply to the order.

1. Facts of recognition;

A. On June 16, 2005, the Plaintiff notified ○○, an oligopolistic shareholder holding 60% of the total stocks of the non-party company, as the non-party company did not pay the unpaid tax amount when the claim for value-added tax, etc. was established on the ○○ Machinery Co., Ltd. (hereinafter referred to as “non-party company”), and notified ○○, an oligopolistic shareholder holding 60% of the total stocks of the non-party company, as the second taxpayer, to pay part of the unpaid tax amount of the non-party company.

B. As seen in paragraph (c) above, the real estate listed in the separate sheet was donated to the Defendant on May 21, 2005, which had been notified to this ○○○. As of May 21, 2005, the tax liability established as of May 21, 2005 reaches KRW 21,134,030 in total, and KRW 21,134,030 in total, and KRW 93,700 in earned income tax for the year 2004, and KRW 28,241,460 in total, including the corporate tax for the year 204, KRW 7,013,730 in total, and KRW 28,241,460 (Provided, That the tax liability

C. On May 21, 2005, ○○ (hereinafter “○○”) donated the real estate indicated in the separate sheet (hereinafter “instant real estate”) to the Defendant, the wife, and completed the procedure for the registration of ownership transfer under the name of the Defendant as of May 24, 2005 under the receipt No. 35411 on the ground of the instant donation.

D. In addition to the real estate in this case as active property from the time of donation, ○○○ owns 1,500 shares issued in ○○ Tech (e.g., face value KRW 7,500,000), 12,50 shares issued in ○ Food Co., Ltd. (e., face value KRW 12,500,000), and 6,000 shares issued in the non-party company (e.g., face value KRW 60,000).

[Ground of recognition] Unsatisfy, Gap evidence 1 to 7, the purport of the whole pleadings

2. The assertion and judgment

A. Whether the preserved claim is established

The second tax liability is established and confirmed separately from the main tax liability, and it is abstractly established by the occurrence of legal requirements, such as the shortage of collection to the main taxpayer, and it is specifically finalized by the notice of payment stipulated in Article 12 of the National Tax Collection Act. There is no evidence to acknowledge that there was a lack of collection to the main taxpayer at the time of May 21, 2005, which is the date of the donation contract of this case. Although the plaintiff commenced a disposition on default to the non-party company, the plaintiff sent the second tax obligor designation and notice of payment to this non-party company on June 16, 2005, which had no property to meet the above tax claim, and thereafter the above notice was delivered to this non-party at that time. Thus, it cannot be said that the plaintiff's tax claim against this non-party at the time of the donation contract of this case was established or specifically finalized.

However, at the time of the legal act subject to the revocation of fraudulent act, there is a high probability that the claim is created in the near future based on the legal relationship, and in the near future, the claim is also a preserved claim for the obligee's right of revocation. As seen earlier, the Plaintiff's taxation claim against the non-party company, i.e., corporate tax in 2004, value-added tax, and earned income tax claim has already expired at the time of the donation contract of this case, and the taxation period or statutory due date of return has already expired. At the time of the donation contract of this case, the Plaintiff's taxation claim against the non-party company, who is an oligopolistic shareholder of the non-party company of this case, was also established, and as long as the non-party company did not pay corporate tax and value-added tax in 204, it was highly probable that ○○○'s secondary tax payment obligation was created in the near future. The Plaintiff's obligee's right of revocation against this case's taxation claim of this case became final and conclusive on June 16, 2005.

B. Whether the debt exceeds ○○

According to the facts of Paragraph (1), as of May 21, 2005, the date of the donation contract of this case, the property of ○○ is the real estate of this case and the 1,500 shares issued in ○○○○, 12,50 shares issued in ○○ Food Co., Ltd., 12,500 shares issued in ○○○○ Food Co., Ltd., and 6,00 shares issued in ○○○○○. As ○○ Food Co., Ltd. closed on February 26, 199, respectively on December 31, 2004, it is difficult to evaluate the shares issued by the above companies that closed on December 29, 2005, and the non-party company also did not pay the value-added tax for 204 years and corporate tax for the plaintiff. Thus, it is difficult to deem that the value-added tax for the non-party company as of the donation contract of this case as of December 26, 2009 as the total amount of 4 tax liabilities.

Therefore, ○○○ is deemed to have omitted in excess of the obligation by donating and disposing of the instant real estate to the Defendant.

C. The defendant's intention to commit suicide

As seen earlier, ○○○ is a shareholder who owns 60% of the shares of the non-party company and substantially controls the above company. At the time of the instant donation contract, the non-party company had already not paid the value-added tax and corporate tax for 204 years, and the non-party company entered into the instant donation contract in light of the fact that the second taxpayer was designated and notified to the non-party company, and that the contract was concluded, this would have known that the above donation contract would cause harm to other creditors including the plaintiff, and the defendant was presumed to have known of such circumstances.

Although the defendant has proved that he had different knowledge that he would harm the plaintiff or other creditors at the time of the above donation contract, it is not sufficient to recognize this only with the statements of No. 1 through No. 7 and the testimony of No. 200, and there is no other evidence to acknowledge this otherwise.

3. Conclusion

Therefore, the gift contract of this case must be revoked as a fraudulent act, and the defendant is obligated to implement the procedure for registration of cancellation of ownership transfer registration of this case's real estate to the plaintiff due to restitution, so the plaintiff's claim of this case is justified and it is so decided as per Disposition.