Changwon District Court Tongwon Branch 2012 Gohap1470 ( October 17, 2013)

The sales contract for the repayment of the obligation to the defendant in excess of the obligation of the delinquent taxpayer constitutes a fraudulent act.

Since the delinquent taxpayer entered into the instant sales contract for the repayment of the debt to the defendant in excess of the debt, this constitutes a fraudulent act, and the defendant's intention to commit a fraudulent act is presumed to be the beneficiary.

Revocation of Fraudulent Act by Busan High Court (Chowon) 2013Na20154

Appellant-Appellants

Korea

Appellant-Appellant

Gangwon A

Changwon District Court Decision 2012Gahap1470 decided January 17, 2013

December 5, 2013

January 23, 2014

1.The judgment of the first instance, including a claim for exchange change in the trial, shall be modified as follows:

A. The sales contract concluded on December 20, 2010 with respect to each real estate listed in the separate sheet between the Defendant and ParkB shall be revoked within the limit of KRW 0,000,000.

B. The defendant shall pay to the plaintiff 0 million won with 5% interest per annum from the day following the day when this judgment became final to the day of complete payment.

2. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim and plaintiff's purport of appeal

It is the same as the order (the plaintiff requested for the cancellation registration procedure of ownership transfer registration in the first instance on the real estate in the attached list Nos. 16 and 17 on the real estate in the attached list, but the plaintiff sought compensation for value in the trial, and the purport of the claim was changed in exchange).

2. The defendant's purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Basic facts

A. Tax claim against the Plaintiff’s stuffB

1) The Plaintiff separately decided and announced 2 cases of global income tax No. 1, 5 due to non-report on global income tax for 2009 and 2010 as listed in the following table, and 3 cases of global income tax No. 2, 3, and 4 as to the amount of credit for the year 2007 to 2009, and 2, 3, and 4 as to the amount of credit for the recognition of the amount of credit for the year 2009, as listed in the following table, and 6, 7 cases of transfer income tax No. 2 cases of transfer income tax on January 31, 201 and February 28, 201, and 8 cases of non-report on transfer income tax on real estate transferred in 209, but bB did not pay it, and thus, national taxes as listed in the next table are in arrears.

2) For global income tax, each tax liability is established on the end of the pertinent taxable period, and on the end of the month of transfer of real estate.

3) The notified tax amount of capital gains tax of No. 7 No. 400,00,000 multiplied by the ○○○○○○ Dong, 401-4, 401-12 land that was transferred on December 7, 2010, ○○○○○○○○○, 561-2, 58-2, 559, 559-1, 561-4, 561-8, 669, 669-1 and 669-1 and 2010 and individually transferred each real estate listed in the separate sheet transferred on December 20, 201 (hereinafter collectively referred to as "real estate of this case"); the transfer income tax of less than 0,000,000 capital gains tax amount of 0,000 capital gains tax amount of 0,000 capital gains tax amount of 0,000 capital gains tax amount of 10,007 capital gains tax amount of 20.

B. Claims against the Defendant’s ParkB

1) In around 2001, the Defendant became aware of ParkB’s work as an employee ofCC Construction (hereinafter “CC Construction”) with whom ParkB was the representative director. After the withdrawal of the construction ofCC, the Defendant was employed as a director after entering the Minedong Construction Co., Ltd.

2) From October 2006, the Defendant traded money with the CC Construction and ParkB. On November 201, 2010, the Defendant borrowed money from the Defendant at CC Construction and ParkB to KRW 00,000,000.

3) On November 30, 2010,CC Construction and ParkB borrowed an additional amount of KRW 000,000,000 from the Defendant, and the Defendant: (a) determined and borrowed from the Defendant 0,000,000,000 from the due date until December 20, 2010; (b) decided to transfer to the Defendant the Defendant the real estate owned byCC Construction and ParkB in the event that the repayment date is not possible; and (c) written a loan certificate stating that ParkB shall jointly and severally guarantee the above obligation ofCC Construction.

4) After that,CC Construction and ParkB paid to the Defendant KRW 00,000,000,000 on December 3, 2010, and KRW 00,000,000 on December 12, 2010, the Defendant additionally lent KRW 00,000,000 toCC Construction and ParkB on December 10, 2010, and eventually, the Defendant’s loan obligations owed to the Defendant ofCC Construction and ParkB at the time of December 15, 2010, including the interest accrued up to that point, was KRW 0,00,000,000.

C. Disposition of the instant real property by ParkB

B. As between December 20, 2010, the Plaintiff sold the instant real estate to the Defendant. Among them, KRW 13,14,00,000 among the real estate was KRW 0,00,00, and KRW 9,16,17 of the instant real estate (as of the time of the instant sales contract, KRW 7 of the instant real estate was divided as of April 6, 201), KRW 00,000, KRW 10,000, KRW 000, KRW 000, KRW 000, KRW 000, KRW 000, KRW 110, KRW 000, KRW 000, KRW 000, KRW 12 of the instant real estate was to be sold to the Defendant, KRW 00, KRW 000, KRW 000, KRW 000, KRW 000, KRW 0000, KRW 0000, KRW 0000.

(d) Status of excess of obligations of ParkB;

ParkB at the time of the instant sales contract, as active property, owned the real estate indicated below other than the instant real estate, and as passive property bears the above tax liability against the Plaintiff and the above loan obligation against the Defendant, as well as the above loan obligation on the Defendant, ParkB had been in excess of its liabilities.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 10, Eul evidence 1 to 4 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's assertion

The defendant shall file a lawsuit within one year from the date when the creditor becomes aware of the cause for revocation. The plaintiff, as a government agency responsible for taxation, was aware of the fact immediately after the conclusion of the contract for the sale and purchase of the real estate of this case and the registration of transfer of ownership was completed. In particular, from August 9, 2010 to September 17, 2010, ParkB confirmed the fact of delinquency in taxation of ParkB by means of a recognized commercial disposition in accordance with the results of the tax investigation with respect toCC Construction, for which ParkB was the representative director, and on February 28, 2011, ParkB became aware of the disposal of the real estate of this case by filing a tax base return, etc. on the tax base of transfer of the real estate of this case on February 28, 2011. Thus, the plaintiff becomes aware of the cause for cancellation of the sales contract of the real estate of this case on February 28, 2011.

B. Determination

In the exercise of the right of revocation, the "date when the obligee becomes aware of the cause for revocation" refers to the date when the obligor becomes aware of the fact that the obligor had committed a fraudulent act while knowing that the obligor would prejudice the obligee. This is not sufficient to simply recognize the fact that the obligor conducted a disposal of the property, but to know the existence of a specific fraudulent act, and further know that the obligor had an intent to injure the obligor. In this case, the burden of proving the lapse of the limitation period lies in the party to the lawsuit for revocation (see, e.g., Supreme Court Decisions 200Da3262, Sept. 29, 200; 2007Da63102, Mar. 26, 2009).

In light of the facts stated in the evidence No. 4-2 and the circumstance alleged by the defendant, it is insufficient to view that the plaintiff was aware of the existence and intent of the specific fraudulent act from August 9, 2010 to September 17, 2010, or from February 28, 2011, and there is no other evidence to acknowledge it. Rather, in full view of the whole arguments stated in the evidence No. 13 to 16, the head of the Tong Young District Tax Office requested a tracking investigation as to gamblingB on March 30, 2012, and prepared and reported the tracking investigation report to the director of the Busan District Tax Office on May 17, 2012. Accordingly, the plaintiff could not be found to have known of the existence of the specific fraudulent act and the intention of causing the death of the plaintiff. Thus, the defendant's defense is without merit.

3. Judgment on the merits

A. Formation of preserved claims

In principle, a claim that can be protected by the obligee’s right of revocation should have arisen before an obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, at the time of the juristic act, there is a high probability that the legal relationship, which is the basis of establishment of the claim, has already been established at the time of the juristic act, and that the claim is created in the near future, and where a claim has arisen due to the realization in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2000Da17346,

According to the facts of the above recognition, each of the above global income tax and capital gains tax on ParkB notified by the Plaintiff was concluded after the time limit for payment of each of the above global income tax and capital gains tax, but global income tax is established at the end of the pertinent taxable period, and the end of the month in which the real estate was transferred. As such, there was a high probability that the tax claim had already been established at the time of the instant sales contract or the legal relationship which forms the basis of establishment was established, and that the claim was actually created in the near future. As such, the Plaintiff’s claim against ParkB may be the preserved claim.

(b) The intention to commit fraudulent acts and to injure himself;

In a case where a debtor, in collusion with one of the creditors, in a situation where his/her debts exceed his/her assets, sold real estate owned by the debtor to obtain preferential satisfaction of his/her claims, and entered into an agreement to offset the above sales price claim and claims against the debtor, the debtor's sales act constitutes a juristic act with the intent to prejudice other creditors even if the domestic sales price is a reasonable price or exceeds a reasonable price (see, e.g., Supreme Court Decisions 94Da2961, 94Da2961, 94Da2978, Jun. 14, 1994; 2002Da35669, Sept. 24, 2002). As long as the debtor's act of disposal of property against a third party constitutes a fraudulent act subject to creditor's right of revocation, the creditor may cancel such juristic act and claim restitution (see, e.g., Supreme Court Decision 2002Da35669, Sept. 24, 2002).

In light of the above facts, ParkB entered into the instant sales contract for the repayment of obligations to the Defendant under excess of obligations. Therefore, the instant sales contract constitutes a fraudulent act, and the Defendant’s intent to commit suicide is presumed as the beneficiary. Therefore, barring any special circumstance, the instant sales contract should be revoked as a fraudulent act.

C. Determination on the defendant's good faith defense

The defendant asserts that the real estate in this case owned by ParkB was only acquired at the market price in order to obtain loans toCC Construction and ParkB, and that there was no intention to harm the plaintiff.

In light of the following circumstances, i.e., (i) the Defendant had been employed as a representative director at the time of entering into the instant sales contract; (ii) Defendant lent money several times from October 2006 to CC Construction and GabB; and (iii) the Defendant had additionally lent KRW 00 million to CC Construction and GabB without being reimbursed KRW 00 million on November 201, 201; (iv) the Defendant was unable to receive the said loan; (iii) the Defendant entered into the instant sales contract in lieu of repayment of the said loan; (iv) the Defendant was in a state of excess of debt at the time of entering into the instant sales contract; and (v) it appears that the Defendant was aware of the fact that GaB’s creditors including the Plaintiff were harmed due to the conclusion of the said sales contract; and (v) there was no evidence to acknowledge that the Defendant did not know the fact that she would harm the creditors of GaB including the Plaintiff, as well as the number 1 to 7 (including the Plaintiff).

(d) Methods and scope of reinstatement;

1) The amount of preserved claims by the Plaintiff

If a creditor exercises his/her right of revocation, in principle, he/she cannot exercise his/her right of revocation in excess of his/her own claim amount, and the amount of the creditor’s claim includes interest or delay damages incurred after the fraudulent act and until the closing of argument in fact-finding proceedings. Meanwhile, additional dues and aggravated additional dues as prescribed by Article 21 of the National Tax Collection Act (amended by Act No. 10527, Apr. 11, 201) are the kind of incidental tax imposed in the meaning of interest on unpaid portion if national taxes are not paid by the due date, and if national taxes are not paid by the due date, it is naturally created pursuant to Article 21 of the same Act and the amount thereof is determined unless national taxes are paid by the due date without the due date of payment by the due date by the person who has the right of taxation, so long as a transfer income tax claim is recognized as a preserved right of the obligee’s right of revocation, the transfer income tax includes additional dues and aggravated additional dues accrued until the closing of argument in fact-finding proceedings after the fraudulent act

With respect to the amount of the Plaintiff’s preserved claim, the tax claim amount against the Plaintiff’s ParkB is KRW 0,000,000,000,000,000,000,000,000,000,000, which is the aggregate of the increased tax amount incurred by ParkB from its failure to pay the said tax in accordance with the above statutory provisions, including additional tax, and thus, the scope of the amount of the preserved claim amount for which the Plaintiff is entitled to exercise the right of revocation is KRW 0,00,00,00,000,00,000,000,000,000,00

2) Determination as to the claim on the real property of this case Nos. 1 through 15

In a case where a juristic act on real estate constitutes a fraudulent act, in principle, cancellation of the fraudulent act and cancellation of the registration of transfer of ownership, etc. However, in a case where a fraudulent act is committed on real estate on which a mortgage is established, such fraudulent act shall be deemed only to be established within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate. Therefore, in a case where the registration of creation of a mortgage is cancelled by repayment, etc. after a fraudulent act, ordering cancellation of a fraudulent act and restoration of the real estate itself would be an order to recover the portion that was not originally constituted a joint security of general creditors, thereby going against equity. Therefore, an order to cancel a fraudulent act and seek compensation for the value thereof is only possible within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate, and such amount shall be calculated at the time of conclusion of fact-finding pleadings (see, e.g., Supreme Court Decision 201Da3734, Dec.

Comprehensively taking account of the overall purport of the pleadings as to the above real estate: (a) 13, 14, and 15 on November 8, 2007; (b) 13, 100,000 won for the establishment of a mortgage; (c) 1 to 9,000 won for the establishment of a mortgage; (d) 00,000 won for the principal and interest of 00,000 won for each of the above immovables; (e) 00,000 won for the establishment of a mortgage; (e) 0,000,00 won for the principal and interest of 0,000 won for 10,000 won for 10,000 won for 10,000 won for 10,000 won for 10,000 won for 10,000 won for 10,000 won for 10,000 won for 10,000 won for each of the instant immovables; and

Comprehensively taking account of the overall purport of the pleadings as to the joint collateral value of the real estate Nos. 1 to 15, the value of the real estate No. 1 to 7, 9, and 15 (the value of the real estate No. 1 to 7, and the value of the real estate No. 8 of this case according to the standard market price, the value of the real estate No. 1 to 7, 9, and the value of the real estate No. 8 of this case) as of December 27, 2010 can be recognized as being stated in the following column, and the value at the time of the closing of argument of each of the above real estate shall also be confirmed as identical.

According to the above facts, the joint collateral value of the real estate of this case 1 through 15 is 0,000,000,000 won calculated by deducting the actual secured claim amount of the right to collateral cancelled from the total value of each of the above real estate at the time of the closing of argument of this case 0,00,000,000 won (=0,000,000,000 -0,000,000 won).

3) Determination as to the claim on real estate Nos. 16 and 17 of the instant case

In principle, restitution following the cancellation of fraudulent act shall be based on the return of the object itself, but where it is impossible to return the object itself or where it is considerably difficult to do so, it shall be based on the value compensation, and in calculating the value compensation, the value thereof shall be objectively assessed at the time of closing argument in fact-finding proceedings, regardless of the price actually received by the beneficiary from the subsequent purchaser (see, e.g., Supreme Court Decision 2009Da104564, Apr. 29, 2010). According to the evidence No. 17 and evidence No. 21, according to the evidence No. 17 and No. 21, the defendant should be deemed impossible to complete the registration of transfer of ownership on April 24, 2013 as the receipt of No. 16 of this case No. 2134, Mar. 22, 2013; ② The defendant should be deemed to have completed the registration of transfer of ownership under the name of Nonparty 1, 2013.

Furthermore, according to the health class, Gap evidence Nos. 18, and Gap evidence No. 20 as to the scope of return of the value, the individual land price of the real estate No. 16 of this case is 0,000,000, and the individual land price of the real estate No. 17 of this case is 0,000,000, and the individual land price of the real estate No. 17 of this case is 0,000,000. In light of the fact that the ordinary individual land price does not exceed the market price of the real estate in this case, the market price of each real estate is 0,000,000

4) Sub-determination

In a case where a part of a fraudulent act is revoked due to cancellation of a right to collateral security, etc. and compensation for value should be made within the scope of either the amount of joint collateral held by the subject matter of a fraudulent act and the amount of creditor’s preserved claim. Therefore, barring any special circumstance, the amount of KRW 0,000,000 shall be limited to the amount of the Plaintiff’s delinquent tax claim against ParkB, whichever is smaller. Therefore, it is clear that the amount of KRW 0,000,000,000, and the amount of joint collateral value of the real estate of KRW 16,17,000,000 (=0,000 +0,000,000 + the amount of KRW 0,000,000,000, the amount of the sales contract of the real estate of this case shall be set at the rate of KRW 5,00,000,000, which is the amount of the Plaintiff’s preserved claim, and the Defendant shall pay the amount of KRW 00,0000.

4. Conclusion

Therefore, the contract of this case concerning the real estate between the defendant and ParkB shall be revoked within the limit of KRW 0,00,000,000, and the defendant is obligated to pay to the plaintiff 0,000,000,000 and damages for delay calculated at the rate of KRW 5% per annum from the day following the day when the judgment became final and conclusive to the day when the payment is fully made. Thus, the plaintiff's claim of this case shall be accepted as reasonable, and the judgment of the court of first instance shall be accepted as a different conclusion and it is unfair for the court of first instance to accept a claim for exchange change in the plaintiff's appeal and the court of first instance to change it as above (the plaintiff's claim for cancellation registration of transfer of ownership concerning real estate of this case of this case of this case of 16,17) and the judgment of the court of first instance becomes null and void since it was withdrawn due to the exchange change of litigation in the court of first instance).