in excess of obligations, the property is donated to the spouse and constitutes a fraudulent act.

In light of the fact that, immediately after the tax investigation in excess of debt, the real estate, which is the active property with the largest value, was donated to the spouse without any particular reason, the conclusion of the donation contract would have been known to the effect that the creditors would be prejudicial to the creditors, and the beneficiary's bad faith should be presumed to have

2012 Gohap30755 Revocation of Fraudulent Act

Korea

ThisAAA

March 21, 2013

April 4, 2013

1. (a) The contract of donation concluded on July 5, 201 between the Defendant and leB regarding the real estate listed in the separate sheet shall be revoked within the limit of 000 won.

B. The defendant shall pay to the plaintiff 00 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

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

The gift contract concluded on July 5, 201 between Paragraph 1(b)(b) of the order and the defendant and the leB person for real estate indicated in the attached list shall be revoked.

1. Facts of recognition;

A. Tax claims against the Plaintiff’s leB

"(1) A person who has filed a tax return and paid taxes in the course of operating the lease business in the trade name of "CC gas station" and "DD DD gas station". (2) The director of a tax office affiliated with the Plaintiff did not pay taxes as of April 24, 201 as of September 30, 201, as a result of the investigation into trade order with respect to theCC gas station during the period from June 7, 201 to July 11, 201, the director of a tax office affiliated with the Plaintiff notified the leB of the payment period of taxes in 10 years and 000 won of value-added tax for 2 years and 000 won for 2 years as described in the following table.

(The following table omitted):

(b) disposals and liabilities in excess of leB;

(1) On July 5, 2011, leB entered into a gift agreement (hereinafter referred to as “instant gift agreement”) with the Defendant, the spouse, regarding the real estate listed in the separate sheet (hereinafter referred to as “instant real estate”), and completed the registration of ownership transfer to the Defendant on July 11, 201, as Seoul Central District Court No. 26606, Jul. 11, 201.

(2) At the time of the instant donation contract, leB had been in excess of the value of the passive property, which exceeds the value of the positive property, as follows.

[affirmative Property]

① Real estate of this case: Market price of approximately KRW 000

(2) The term "bealy cruise motor vehicle": approximately KRW 000 won at the market price.

3FFFF 50% of the equity interest in an automobile: 00 won at the market price; 000 won at the fourth: 00 won

(A) The Defendant asserts that the amount equivalent to the value should be included in active property, but according to the evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence No. 6, the OD gas station was already closed on April 10, 201, and on July 31, 2009. Thus, since the share of each of the above stations is not real property value, it cannot play a role as a joint security for claims, it is excluded from active property.

[negative Property]

① The instant tax liability: 000 won in total of the notified tax amount

(2) Loans to HH banks: 00 won

(3) Mortgage obligations against GG life insurance Co., Ltd.: 00 won of the maximum debt amount.

(4) 50% of the collateral obligations against Hphphism social corporations: 000 won with the maximum debt amount.

(5) Total amount: 000 won

[Reasons for Recognition] The non-contentious facts, Gap evidence 1 through 8 (if there are household numbers, referring to the number number), Eul evidence 2, and three evidence, and the purport of the whole pleadings

2. Hunting about a fraudulent act;

(a)the existence of preserved claims;

Income tax claims and value-added tax claims are naturally constituted under law without any separate procedure between the customs office and the taxpayer (Article 21(1)1, 4, and 7, and 2(2)2 of the Framework Act on National Taxes) on the last day of the month in which the amount constituting the tax base occurs, while income tax claims and global real estate tax claims are set at the tax base date when the taxable period ends, and the transfer income tax claims are legally established without any separate procedure between the customs office and the taxpayer (Article 21(1)1, 4, and 7, and 21(2)2 of the Framework Act on National Taxes). Accordingly, each tax claim in this case was set at the date on which the "the date on which the tax liability is established" in the above table

(b) Fraudulent act;

In light of the above facts, leB had been in excess of its obligation at the time of entering into the instant gift contract, and leB’s donation of the instant real estate to the Defendant constitutes a fraudulent act resulting from the reduction of liability property in relation to other creditors, including the Plaintiff, unless there is any special intention. Moreover, the investigation of transaction order regarding CC stations has been conducted since June 7, 201, and Article 81-7(1) of the Framework Act on National Taxes provides that the taxpayer subject to the tax investigation should be notified of the tax items to be investigated, the investigation period, and the reason for investigation 10 days prior to initiating the investigation, and the fact that leB was directly inspected at the place of business of CC stations during the investigation period, and that the instant real estate, which is the most valuable active property after the investigation into transaction order, was gratuitously donated to the Defendant, who is the spouse, the Defendant is presumed to have been aware that leB would prejudice the creditors due to the conclusion of the instant gift contract, and that leB was also presumed to have been a malicious beneficiary.

C. Determination on the defendant's good faith defense

Although the defendant did not know that the above contract constitutes a fraudulent act at the time of entering into the gift contract of this case, the defendant's defense is without merit, since there is no evidence to acknowledge it.

3. Methods of reinstatement and scope of revocation of fraudulent act;

(a) Methods for reinstatement;

(1) In a case where a legal act on a certain real estate constitutes a fraudulent act, in principle, a revocation of the fraudulent act and an order to recover the real estate itself, such as cancellation of the registration of transfer of ownership, is required. However, in a case where the restoration of the real estate itself is ordered by revocation of the fraudulent act and order the restoration of the portion which was not the initial creditors' joint collateral, and it would result in a violation of fairness and fairness, it is reasonable to revoke the fraudulent act and order compensation to the extent that the value of the real estate is deducted from the value of the real estate less the value of the portion which was not the joint collateral (see, e.g., Supreme Court Decision 2009Da60466, Jul. 22, 2010)

(2) According to the records in the health group, evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence No. 3, and evidence No. 4-2 with respect to this case, the collateral security was established in the name of HH bank with the maximum debt amount of KRW 000 (actual collateral amount of KRW 000) from April 29, 2010, and the registration of change of the collateral security with the maximum debt amount of KRW 00 on October 26, 201, which was after the contract was concluded, was made on October 26, 201, which was part of the secured debt of the above collateral security, and at the time of the change, the part of the secured debt repaid with the above collateral security amount of KRW 00 and the remaining secured debt amount of KRW 00 can be recognized. Accordingly, the donation contract of this case should be revoked to the extent that the market value of the real estate of this case was deducted as the joint collateral of the general creditors, and the defendant shall return the amount to its original status.

B. Scope of revocation and equivalent compensation

근저당권의 말소 등으로 사해행위의 일부를 취소하고 가액배상을 하는 경우，그 취 소 및 가액배상은 채권자인 원고의| 변론종결일까지 발생한 피보전채권액과 사해행위 목적물인 이 사건 각 부동산의 공동담보가액을 비교하여 그 중 적은 금액을 한도로 이루어져야 한다. 이 사건 부동산의 시가가 000원인 사실은 당사자 사이에 다툼이 없고， 위 시가 000원에서 당초 일반채권자들의 공동담보로 되어 있지 않았던 000 원(일부 변제된 피담보채무액 000원 + 잔존 피담보채무액 000원)을 공제한 000원이 원고의 피보전채권인 이 사건 조세채권액보다 적으므로， 결국 위 000원의 한도 내에서 이 샤건 증여계약을 취소하고 가액배상을 명하여야 할 것이다.

C. Sub-decision

Therefore, the contract of this case on the real estate between the defendant and leB is revoked within the limit of 000 won, and the defendant is obligated to pay the plaintiff the above 000 won and the damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day after the date this judgment becomes final and conclusive to the day of full payment.

4. Conclusion

Thus, the plaintiff's claim of this case is reasonable within the above scope of recognition, and the remaining claim is dismissed as it is without merit.