Daegu District Court 2014Gadan117103 ( October 27, 2015)

Whether division of property constitutes a fraudulent act

The sale of the instant real estate constitutes a fraudulent act with respect to the portion exceeding a considerable portion as a division of property.

Article 1 of the National Tax Collection Act

Daegu District Court 2015Na309801 Revocation of Fraudulent Act

AA

BB

Some of the national holidays

July 20, 2016

August 17, 2016

1.The judgment of the first instance shall be modified as follows:

A. The sales contract concluded on March 27, 2014 with respect to real estate listed in the separate sheet between the defendant and the non-party A shall be revoked within the scope of KRW 69,760,000.

B. The defendant shall pay to the plaintiff 69,760,000 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. The plaintiff's remaining claims are dismissed.

2. 3/5 of the total litigation costs is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

1. Purport of claim

On March 27, 2014, concluded on March 27, 2014 with respect to the real estate listed in the separate sheet between the Defendant and Nonparty A.

The contract shall be revoked, and the defendant shall be 174,400,000 won to the plaintiff, and this decision shall become final and conclusive.

The plaintiff shall pay 5% interest per annum from the next day to the day of full payment (the plaintiff shall be paid at the trial.

The purpose of the claim was expanded.

2. Purport of appeal

A. Plaintiff: Revocation of the part against Plaintiff in the judgment of the first instance. This judgment is identical to that of the purport of the claim.

the Gu.

B. Defendant: Revocation of the part against Defendant among the judgment of the first instance court, and the Plaintiff corresponding to the above revocation part

The claim is dismissed.

1. Basic facts

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가. 정AA는 QQ 주식회사의 대표자로서 2011년도 본인의 인정상여금 716,835,790원에 대하여 미신고하여 SS세무서장으로부터 2013. 9. 25.경 소득금액변동통지를 받았다. 이후 DD세무서장이 2014. 5. 22.경 위 인정상여금액을 기초로2011년 귀속 종합소득세 271,654,867원을 결정, 고지하였으나 이를 납부하지 아니하여,2014. 5. 31. 기준 정AA의 국세체납액은 가산금 포함 283,064,350원에 이른다(이하에서는 위 종합소득세 부과처분을 '이 사건 조세 부과처분'이라 하고, 이에 따른 원고의 채권을 '이 사건 조세채권'이라 한다). 나. 정AA는 1985. 5. 20. 피고와 혼인하여 혼인신고를 하였고, 2014. 6. 30. 피고와 협의이혼신고를 하였다.

C. On March 27, 2014, Jung-A entered into a sales contract with the Defendant for the real estate listed in the separate sheet (hereinafter “instant real estate”). On April 28, 2014, Jung-A entered into the instant sales contract with the Defendant, and completed the registration of ownership transfer as the receipt by the SS District Court registry No. 85135 on April 28, 2014. D. At the time of the instant sales contract, the instant real estate was the only real estate owned by Jung-A, and Jung-A was in excess of its obligation. At the time of the closure of the arguments in the trial, the market value of the instant real estate was KRW 190,00,000.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6 (including each number; hereinafter the same shall apply), Eul evidence Nos. 1, 6 and 7, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

D. On April 23, 2014, prior to the instant tax disposition, the director of the Korea Tax Office (hereinafter “D”) transferred the instant real estate, which is the only property of the principal, to the Defendant, who is the spouse. This constitutes a fraudulent act causing shortage of common security among general creditors. Even if the instant sales contract has the nature of property division, it constitutes a fraudulent act as it is excessive beyond a considerable degree.

B. Defendant’s assertion

The instant taxation disposition is unlawful, and there is no taxation claim based on this, since Jeong did not have the opportunity to submit documentary evidence due to the closure of business of the company. The Defendant donated the instant real estate under the pretext of property division, consolation money, etc. due to divorce under the process of divorce with Jeong on March 27, 2014, and the instant sales contract does not constitute a fraudulent act, as it does not fall under the portion exceeding a considerable portion as property division.

3. Determination

(a) Claims for preservation;

Since the fact that the Plaintiff’s instant tax claim against Jeong has occurred is as seen earlier, the Plaintiff becomes a preserved claim in exercising the obligee’s right to revoke the instant sales contract.

In regard to this, the Defendant asserts that there is no taxation claim of this case, which is a preserved claim, when it comes to the trial. On the other hand, it is rarely apparent that 90 days have elapsed since the date when the tax disposition of this case reaches the Defendant. In the case where there exists an error of law, which is merely a ground for revocation in the tax disposition of this case, the fairness of the administrative disposition has already occurred and it is impossible to revoke it (see Supreme Court Decision 94Da2800, Nov. 11, 1994). In addition, as long as the Plaintiff imposed the tax disposition of this case pursuant to Article 67 of the Corporate Tax Act and Article 106(1)1 of the Enforcement Decree of the same Act, as argued by the Defendant, even if it is recognized that the Plaintiff did not have the opportunity to submit evidentiary materials due to the closure of business as argued by the Defendant, the taxation disposition of this case cannot be deemed null and void due to serious defect in the taxation disposition of this case. Therefore, the Defendant’s above assertion is

B. Determination as to whether the instant sales contract can be deemed as division of property

In light of the following circumstances, which are acknowledged as comprehensively considering the aforementioned evidence and evidence evidence No. 5 as well as the purport of the entire pleadings, namely, ① the Defendant and AA reported the marriage on May 20, 1985 and reported the divorce on June 30, 2014; ② the Plaintiff did not appear to have divided the instant property other than the instant real estate at the time of the divorce; ③ there is no evidence to prove that the Defendant’s property was managed by AA after the divorce; and ③ there is no evidence to prove that the instant sales contract has the nature of division of property following the divorce.

On the other hand, while the defendant alleged that he paid the sales price of the real estate of this case to the money which he was gathered as a restaurant worker, etc. during the marriage period, he was under the name of regular AA, it is insufficient to recognize the defendant's assertion only by the descriptions of the evidence Nos. 8 through 14 and 20, and there is no other evidence to acknowledge it.

C. Determination as to whether it constitutes a substantial division of property

1) In a divorce, the division of property, at the same time, contributes to the maintenance of the other party’s livelihood after liquidation and distribution of the real property that the married couple had, but at the same time, after divorce, may be divided including the nature of the mental damage (deficiencies) incurred by divorce by the act of the split-off. In determining the amount and method of division of property, considering the amount of the property achieved by mutual cooperation between the parties and other circumstances is apparent under Article 839-2(2) of the Civil Act, and thus, even if the property division is insolvent, the amount and method of division may be determined including the amount of the debt already borne by the split-off and the amount of the joint property division, even if it has contributed to the formation of the common property. Even if the property division becomes insolvent by the split-off and reduces the joint security against the general creditor, such division of property may not be deemed to go against the purport of Article 839-2(2) of the Civil Act, and there is no special circumstance to recognize it as a fraudulent act.

The subject of creditor's right of revocation as a fraudulent act under such special circumstances as above.

The scope of revocation shall be limited to the portion exceeding a considerable portion (see, e.g., Supreme Court Decision 2004Da58963, Jan. 28, 2005) (see, e.g., Supreme Court Decision 2004Da58963, Jan. 28, 2005). 2) In light of the health class, the above-mentioned evidence and the statements in the evidence No. 5, 6, 7, 9, 10, and 11; and the overall purport of the pleadings in part of the testimony by the witness of the trial of the party concerned, the following circumstances are as follows: ① is deemed to have performed the formation, maintenance, and management of the property while working in the textile-related company; ② the Defendant appears to have been able to obtain property division from the Defendant 30, Oct. 15, 2000, the Plaintiff’s property division of the Plaintiff and the Plaintiff’s property division of 30,000.

On the other hand, the above evidences and evidence Nos. 8, Eul evidence Nos. 1, 3, and 4 and some of the statements Nos. 2-1, 2-2 of the evidence No. 2, and the court of the first instance found as follows in addition to the whole purport of the pleadings as a result of the order to submit a statement of financial transaction to the JJ branch of the HAC branch of the HAC branch of the court of the first instance, i.e., the defendant, upon completion of the marriage report on May 20, 195, 29 children were married for 29 years, and the defendant had contributed to increasing property by type and type until her divorce with Jeong. ② The defendant appears to have contributed to the increase of property until her divorce with Jeong. 60% of the market price of the above real estate at the time of 10% of the above real estate was set at 00, 30% of the market price at the time of 50% of the above real estate.

1) 위와 같은 재산분할의 비율에 의할 때, '이 사건 부동산의 시가에서 이 사건 근저당권의 피담보채권액을 공제한 가액'의 40%는 정AA에게, 그 60%는 피고에게 귀속되어야 할 것이므로, 재산분할로서 상당한 정도를 초과하는 위 40%의 범위 내에서 사해행위가 성립하고, 나아가 수익자인 피고의 악의는 추정된다. 이에 대하여 피고는, 정AA가 1996년 8월경 가출하여 그때부터 사실상 이혼상태로 지냈기 때문에 정AA가 QQ 주식회사를 경영하였다는 것조차 알지 못했고 채무초과 여부도 알지 못하였으므로 선의의 수익자라고 항변한다. 살피건대, 앞서 든 증거들에 의하여 인정되는 다음과 같은 사정들 즉, 정AA가 QQ 주식회사의 대표자로서 2011년도 본인의 인정상여 금액 716,835,790원에 대하여 신고하지 아니하여 GG세무서장으로부터 2013. 9. 25.경 소득금액변동통지를 받은 점, 또한 JJ세무서장이 이 사건 조세부과처분 직전인 2014. 4. 23. 정AA에게 과세확정전 납세자 의견수렴 검토표 작성을 위하여 과세예정 사실을 알린 점, 피고와 정AA 간에 이 사건 부동산을 이혼에 따른 위자료로 지급하기로 한 협약서가 2014. 3. 27.자로 작성되었으나 확정일자는 2014. 4. 28. 받은 사정에 비추어 위 협약서 작성일이 2014. 3. 27.인지 의문인 점, 피고와 정AA 간의 위 협약에 따라 피고가 결국 재산분할대상 재산 모두를 소유하게 되어 일반채권자들이 정AA에게 집행 가능한 재산이 전혀 없게 되는 점 등에 비추어 보면, 피고가 제출한 증거들만으로는 피고가 선의였음을 인정하기에 부족하고 달리 이를 인정할 증거가 없으므로, 피고의 위 항변은 이유 없다.

2) Meanwhile, in the event that a sales contract for a real estate constitutes a fraudulent act, in principle, the sales contract is revoked, and an order is issued to restore the real estate itself, such as cancellation of the registration of transfer of ownership, but the fraudulent act is performed between the persons other than the mortgagee in question with respect to the real estate on which the mortgage is established and the registration

- 9 - 매매계약 전부를 취소하여 그 부동산 자체의 회복을 명하는 것은 당초 담보로 되어 있지 아니하던 부분까지 회복시키는 것이 되어 공평에 반하는 결과가 되므로, 그 부동산의 가액에서 저당권의 피담보채권액을 공제한 잔액의 한도에서 그 매매계약의 일부 취소와 그 가액의 배상을 구할 수 있을 뿐 부동산 자체의 회복을 구할 수는 없다(대법원 1996. 10. 29. 선고 96다23207 판결). 따라서, 이 사건 매매계약은 당심 변론종결 당시 이 사건 부동산의 시가인 190,000,000원에서 이 사건 근저당권의 피담보채권액 15,600,000원을 공제한 174,400,000원의 40%인 69,760,000원 K= (190,000,000원 - 15,600,000원) × 40% �의 한도 내에서 취소되어야 하고, 그 원상회복으로 피고는 원고에게 위 69,760,000원 및 이에 대하여 이 판결확정일 다음날부터 다 갚는 날까지 민법이 정한 연 5%의 비율에 의한 지연손해금을 지급할 의무가 있다.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. Since part of the part against the plaintiff in the judgment of the court of first instance differs from this conclusion, it is unfair to accept part of the plaintiff's appeal and to revise the judgment of the court of first instance as above, it is so decided as per Disposition.