cash donation to the wife after transfer of real property constitutes a fraudulent act

In light of the above circumstances, it is reasonable to view that the donation of this case, which donated money to the wife after transferring real estate, was an excessive division of property exceeding a considerable degree.

2013 Gohap 533676 Revocation of Fraudulent Act

Korea

JO

March 4, 2014

March 27, 2014

1. The contract for donation between the defendant and the non-party OO on August 13, 2012 is revoked.

2. The defendant shall pay to the non-party O an annual interest rate of 5% from the day following the day when the judgment became final and conclusive to the day of complete payment. 3. The costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

A. On August 9, 2012, JO sold O-O land and buildings on the ground (hereinafter collectively referred to as "the real estate of this case") of O00,000,000 won to OO0,000,000,000 won. As to the above real estate, the buyer succeeded to the debt of O00,000 won including the secured debt of the right to collateral security established in the future of the OO bank and the lease debt of O0,000 won, and JO agreed to receive only the difference of O0,000,000 won as the remainder of the contract (hereinafter referred to as "the sales contract of this case"). On August 13, 2012, JO acquired the registration of ownership transfer for the above real estate from the buyer of this case, O200,0000 won, and 300,000,0000,000 won were immediately transferred from the buyer of this case.

D. Although the JO made a preliminary return on the tax base of transfer income following the sale of the above real estate, it did not pay the OOO of transfer income tax, the decision of correction was made as of January 10, 2013 with the amount determined as of January 10, 2013 as OOO (the amount added by OOO of penalty tax due to failing to pay the original determined tax amount) and is still in arrears until now. [Grounds for recognition] There is no dispute, Gap's statements, Gap's evidence Nos. 1 through 3, 7, and 10 (including paper numbers, hereinafter the same applies), witness's testimony, and the purport of the whole pleadings.

2. The occurrence of the right to revoke the fraudulent act;

(a)the existence of preserved claims;

According to the health and the facts of recognition as seen earlier, the Plaintiff’s taxation claim in this case is specifically confirmed after the gift in this case and by the tax authority’s imposition of additional tax. However, it can be deemed that OO already established legal relations which form the basis of the taxation claim by transferring the real estate in this case, which was one’s own ownership, before the gift in this case, and as mentioned later, OO had been in insolvent at the time of the gift in this case, and OO failed to pay transfer income tax after OO.S., it was highly probable that the tax claim in the near future should be established, as well as that it can be deemed that the above taxation claim has been established because it was realized in the near future, and thus it can be deemed that the above taxation claim was established. (See, e.g., Supreme Court Decision 2006Da66753, Jun. 29, 2007).

B. Establishment of fraudulent act

1) In full view of the statements in Gap's evidence Nos. 2 through 11, 15, and 16 (including paper numbers), the witness testimony and the whole pleadings, the plaintiff bears the following obligations at the time of the donation, while the plaintiff was in excess of the obligations since he had positive property of OOOO, and even he donated O0,000 won to the defendant who is the wife, barring any special circumstance, it shall be deemed a fraudulent act against the plaintiff. Accordingly, the defendant's assertion that the above obligation to OO, O, GaO, and O was extinguished at the time of the donation of this case, and thus, it shall not be accepted since the defendant's assertion that the above obligation to OO had already been paid at the time of the donation of this case, and that there was no interference with the payment of the above OO or the defendant's remainder of the obligation to 100 million won before the donation of this case cannot be accepted.

2) The defendant asserts that the gift of this case does not constitute a fraudulent act, since the gift of this case was made by division of property according to divorce with OO.

In light of the above facts, even though the debtor, who has already been in excess of his/her debt, transferred a certain property to his/her spouse as a result of the reduction of joint security against the general creditor, the above division of property shall not be subject to revocation by the creditor, unless there are special circumstances to recognize that the above division of property exceeds a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act. However, it may not be subject to legitimate division of property as to the above exceeding a considerable degree, and there is a burden of proving that the above division of property has been excessive beyond a considerable degree (see, e.g., Supreme Court Decision 200Da14101, Jul. 28, 200). In light of the above facts, it is reasonable to recognize that the above division of property had been filed by the defendant 2, 1,3,400, and 100, 2000, 300, 200, 300, 198, 2000.

3) As to this, the Plaintiff asserts that the instant donation is a division of property exceeding a considerable degree, in light of the following: (a) the amount of the instant donation; (b) the property status of OO at the time; and (c) the fact that OO sold the instant real property, and the Defendant’s actual profit derived from the mutual trade agreement with the buyer, reaches KRW KRW

(5) In light of the fact that the above 0-O-O's first sale of real estate at the time of the 2000,000,000 won-O-O-O-O's first sale of the real estate at the time of the 2000,000,000 won-O-O-O-O-O-O-O-O's first sale of the real estate at the time of the 200,000,000 won-O-O-O-O-O-O's first sale of the real estate at the time of the 1987, and that the 200,000,000 won-O-O-O-O's first sale of the real estate at the time of the 200,000,000 won-O-O-O-O-O's first sale of the real estate at the time of the 208,000,000 won-O-O-O's second sale of the real estate.

(c) A physician, etc. of the JO;

In light of the above relations between JO and the defendant, the status of the property of JOO and the amount of donation to the defendant, etc., it is reasonable to deem that JO was aware of the circumstances that the plaintiff would be harmed at the time of the donation in this case, and barring any special circumstance, the plaintiff may exercise the right of revocation against the defendant, who is the beneficiary, and seek restitution thereof.

As to this, the defendant did not know that the above gift act of the defendant was harmful to the plaintiff as the creditor at the time of the donation of this case, but there is no evidence to prove it, and there is no defense of the defendant.

3. The contents of the fraudulent act revocation and restitution are the amount calculated by adding the Plaintiff’s tax claim amount to the amount of KRW 00,000,000,000,000,0000,000,000,0000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,00

Thus, the plaintiff's claim of this case is justified and accepted.