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창원지방법원 통영지원 2013. 11. 28. 선고 2013가단1678 판결
변제받은 것에 불과하다고 주장하나 금전대여 사실을 인정할 만한 증거가 사해행위에 해당된다.[국승]
Title

Although it is merely a claim that the reimbursement has been made, there is evidence to prove the fact that the money was given is a fraudulent act.

Summary

Since the status of excess of the obligation has deepened by transferring the purchase price received to the defendant without any specific property, it constitutes a fraudulent act detrimental to creditors, and the defendant's bad faith is presumed to be a beneficiary.

Related statutes

Article 30 of the National Tax Collection Act

Cases

2013 Ghana 1678 Revocation of Fraudulent Act

Plaintiff

Korea

Defendant

KimA

Conclusion of Pleadings

November 14, 2013

Imposition of Judgment

November 28, 2013

Text

1. (a) Revocation of a contract of gift made between the defendant and the least B with respect to each amount listed in the separate sheet.

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

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The primary purport of claims is as stated in paragraph (1) of this Article.

Preliminary claim: The defendant and the lowestB cancel the trust contract in the name of each depositor with respect to the remittance account listed in the separate sheet with respect to the amount stated in the separate sheet, and the defendant shall pay to the plaintiff 5% interest per annum from the day after the date this decision becomes final and conclusive to the day of complete payment.

Reasons

1. Basic facts

A. Around September 8, 2011, LB transferred the registration of transfer of 1/2 shares (hereinafter “instant shares”) out of 1565-2 square meter out of 00 O-si O-si 1565-2 and 5166.1 square meter (hereinafter “the instant shares”) to the company.

B. Accordingly, on November 29, 201, LB made a preliminary return of capital gains tax on or around November 29, 201, and the Plaintiff issued a notice of correction of capital gains tax to the largestB on or around February 9, 2012. However, LB is not paid up until now.

C. During the process of sale of the instant shares by LB, a substantial portion of the sales price was used for the redemption of the loan to the LB’s existing financial institution, etc., and the LB actually received only OO on January 3, 201, and OOO on October 25, 201.

D. MaximumB remitted the money received as above to the Defendant, who is his/her father, as indicated in the separate sheet, to the end of January 3, 2011 and end of June 13, 201, as indicated in the separate sheet, and to November 25, 201, respectively, to the end of October 25, 201 and to the end of November 25, 201.

E. At the time the largestB transferred money to the Defendant as shown in the attached list, the Plaintiff did not have any property other than the instant shares.

[Ground] Facts without dispute, entry of Gap 1 to 6 evidence, purport of the whole pleadings

2. Determination on the defense prior to the merits

The plaintiff is seeking the cancellation of fraudulent act and restitution of its original state while the mostB transferred money to the defendant as shown in the attached list constitutes a donation of money to the defendant, which constitutes a fraudulent act detrimental to the plaintiff who is the creditor of the mostB.

On November 29, 201, the Defendant asserted to the effect that the instant lawsuit was unlawful after the lapse of the exclusion period of one year, inasmuch as the Plaintiff was aware of the remittance indicated in the attached list and the Plaintiff filed the instant lawsuit after more than one year thereafter, around November 29, 201, which the largestB did not pay capital gains tax.

Then, there is no evidence to prove that the plaintiff knew of the remittance in the separate sheet around November 29, 201, the defendant's defense is without merit without any further review.

3. Judgment on the merits

A. Whether the fraudulent act was established

First of all, it is reasonable to view that the act of remitting money listed in the attached list is a donation to the Defendant by the mostB, taking into account the following circumstances: (a) the evidence and the following circumstances revealed therefrom; (b) the most part of the purchase price began to transfer to the Defendant from the date of receipt of the above-mentioned purchase price, and the Defendant was merely a receipt of the money that was lent to the most BB; and (c) there is no evidence to support the fact that the money was lent to the Defendant, but there is no evidence to support the fact that the money was lent to the most B, the act of remitting money listed in the attached list is a donation to the Defendant by the most BB (hereinafter “the donation in this case”).

In addition, the most BB is presumed to constitute a fraudulent act detrimental to the creditors, and the defendant's bad faith is presumed to be a beneficiary, inasmuch as the status of excess of the obligation has deepened by donation of the purchase price received to the defendant without any specific property other than the instant

As to this, the defendant's defense to the effect that it is merely a receipt of a loan to the least BB and constitutes a bona fide beneficiary. However, as seen earlier, there is no evidence to prove that the defendant lent money to the least BB, and the above defense is without merit.

(b) Revocation of and reinstatement from fraudulent acts;

The gift of this case constitutes a fraudulent act and thus is revoked.

In addition, it is reasonable to compensate for the equivalent amount of compensation for restitution. Accordingly, the defendant is obligated to pay the amount of money donated to the plaintiff (i.e., OO. + OO.) and damages for delay calculated at 5% per annum from the day following the day this judgment became final and conclusive to the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim is accepted on the ground of the whole reason.