(영문) 울산지방법원 2014. 10. 31. 선고 2014가단58237 판결

1. The contract of donation concluded on October 2, 2012 between Defendant YangA and YangD with respect to each real estate listed in the separate sheet 1 and the separate sheet 2 shall be revoked.

2. Defendant YangA shall implement the procedure for registration of cancellation of ownership transfer registration completed on October 4, 2012 by Ulsan District Court’s Jungbu Registry on the real estate listed in the separate sheet No. 1 to YangD, and implement the procedure for registration of cancellation of ownership transfer registration completed on October 5, 2012 with respect to the real estate listed in the separate sheet No. 2.

3. The gift agreement concluded on October 2, 2012 between Defendant YangA and YangD with respect to the real estate listed in the separate sheet 3 shall be revoked within the limit of OOO members.

4. Defendant Yang-D shall pay to the Plaintiff 5% interest per annum from the day following the date when the judgment became final and conclusive to the day of full payment.

5. Revocation of a gift agreement concluded on October 2, 2012 between Defendant YangB and YangD with respect to the real estate listed in the attached Table 4.

6. Defendant BB will implement the procedure for registration of cancellation of ownership transfer registration completed on October 4, 2012 by the receipt OOOOOO of the Ulsan District Court with respect to the real estate listed in the attached list 4 to YangD.

7. The sales contract concluded on July 11, 2013 with respect to the real estate listed in the separate sheet 5 between Defendant YangCC and YangD shall be revoked, and the sales contract concluded on September 9, 2013 with respect to each real estate listed in the separate sheet 6, the separate sheet 7, and the separate sheet 8 shall be revoked.

8. The Defendant YangCC shall implement the procedure for registration of cancellation of ownership transfer registration completed on July 12, 2013 with respect to the real estate listed in the separate sheet 5 to YangD on July 12, 2013, such as Daegu District Court and racing support, and implement the procedure for registration of cancellation of ownership transfer registration completed on September 11, 2013 with respect to each real estate listed in the separate sheet 6, the separate sheet 7, and the separate sheet 8.

9. The costs of lawsuit shall be borne by the Defendants.

Cheong-gu Office

The same shall apply to the order.

Reasons

1. Indication of Claim: It is as shown in the reasons for the claim (However, the "OOOO" in Paragraph 7 is corrected as a clerical error in the "OOOO".

2. Claim against Defendant YangA and YangB: Judgment on deemed confession (Article 208 (3) 2 of the Civil Procedure Act)

3. Claim against Defendant YangCC: Judgment by public notice (Article 208 (3) 3 of the Civil Procedure Act).

Cheongwon of the Gu

1. The relationship between the defendants and the non-party Yang D

Defendant 1 is the head of Non-Party DoD (hereinafter referred to as "non-party 1"), Defendant 2 is the south of the Non-party 2, and Defendant 3 is the same livelihood of the Non-party 3 (referring to the "non-party 1's evidence 1-2's proof 1-2's proof 1-2's proof 1).

2. Details on establishment of tax claims, which are preserved claims;

A. On September 4, 2012, the Nonparty sold the forest land No. 110-1 located in the OOdong, Seoul Special Self-Governing Province and did not report the transfer income tax. On September 20, 2012, OO also sold the forest land No. 155 located in OOdong, OO-dong, and did not report the transfer income tax. As such, the head of Dongsan Tax Office under the Plaintiff-affiliated Tax Office notified OOOOOOOO as the due date for payment on August 31, 2012 from August 12, 2013 (see, e.g., the “1 capital gains tax decision resolution” in the evidence No. 2, e.g., the “OOO-dong”).

In addition, in relation to the business operated by the non-party, the non-party notified the non-party of the notice of the scheduled value-added tax return for the second period of EE shopping (O-O-O-OOOOOOO) operated by the non-party as the payment deadline on September 5, 2012, and the non-party notified the non-party of the notice of the scheduled value-added tax return for the second period of EE shopping (O-O-O-OOOOO) in October 25, 2013 (referring to the 2's global income tax correction resolution on the evidence No. 2-3's global income tax correction resolution, and the 3's evidence No. 2-3's collection decision on the value-added tax).

The non-party has failed to pay the above national taxes and the tax liabilities currently in arrears are as follows: (See Evidence A No. 2-4 of the Act).

Details of preserved credit (in arrears) (as of June 2014)

(unit: source)

Sub-Items :

E =

Date of establishment of tax liability

Deadline for payment

Notice Tax Amount

Amount in arrears

(including additional charges)

Transfer Income Tax

2012

September 30, 2012

August 31, 2013

OOO

Global Income Tax

2012

December 31, 2012

September 30, 2013

OOO

Value-added Tax

2013.2 Scheduled

September 30, 2013

October 25, 2013

OOO

B. Although it is required that a claim protected by the obligee’s right of revocation was, in principle, incurred prior to the commission of an act that can be viewed as a fraudulent act. However, it is highly probable that at the time of the fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of the claim, and that the claim should be established in the near future by virtue of such legal relationship. In the near future, where a claim has been established by realizing the probability thereof in the near future, the claim may also become a preserved claim. The legal relationship that serves as the basis of the establishment of the claim is not limited to the legal relationship under an agreement between the parties, but shall be deemed to include a quasi-legal relationship or fact-finding that is probable to establish the claim (see Supreme Court Decision 2002Da42957, Nov. 8, 200

C. As stated in the purport of the claim, the Nonparty’s donation to Defendant 1 of the real estate indicated in attached Tables 1 through 3 (hereinafter “instant real estate 1-3”) was made on October 2, 2012 by the Nonparty, and on October 2, 2012, the Nonparty’s donation to Defendant 2 of the real estate listed in attached Tables 4 (hereinafter “instant real estate 4”) was made on October 2, 2012. The Nonparty’s fraudulent act that the Nonparty purchased and sold the real estate listed in attached Tables 5 (hereinafter “instant real estate 5”) to Defendant 3 was made on July 11, 2013, and on September 9, 2013.

However, at the time of each fraudulent act, the basic legal relations of the claim against the non-party in arrears (on December 31, 2012, / December 30, 2012, when the liability for tax payment was established) with respect to the non-party at the time of each fraudulent act was highly probable to be realized, and as such, the head of the Dongsan Tax Office notified national taxes to the non-party, and thus, it becomes highly probable that the non-party's claim against the non-party in arrears can be protected as the right to cancel the fraudulent act in light of the above Supreme Court precedents.

3. Fraudulent act and reduction of liability property;

A. Although the Nonparty voluntarily reported and paid national taxes in good faith pursuant to relevant statutes, such as the Income Tax Act, he/she did not report the transfer income tax after transferring the real estate, such as the above 2.A, and did not report the transfer income tax in the near future, and completed the registration of transfer on October 2, 2012 with the receiptOOOO on the real estate stated in the attached Table 1 as the reason of donation on October 2, 2012. On October 2, 2012, the Nonparty completed the registration of transfer on October 5, 2012 as the receiptOOO on the real estate stated in the attached Table 2. The Nonparty completed the registration of transfer on October 5, 2012 with the receipt of the receiptOO on October 2, 2012 due to the donation on the attached Table 3.

In addition, on October 2, 2012, the registration of ownership transfer was made on October 4, 2012 with respect to the real estate stated in Attached List 4 by the Ulsan District Court, the Busan District Court, the Busan District Court’s Branch Office, the receipt of October 4, 2012, and the registration of ownership transfer was completed on July 11, 2013 by the Daegu District Court and the receiptOOOOOO on July 12, 2013. On September 9, 2013 with respect to the real estate listed in Attached List 6-8, the property was reduced by completing the registration of ownership transfer on September 11, 2013.

As a result, the non-party becomes insolvent and the plaintiff was unable to obtain satisfaction of tax claims. (A) No. 3-1's whole certificate (the real estate 1), Gap evidence No. 3-2's whole certificate (the real estate 2), Gap evidence No. 3-3's whole certificate (the real estate 3), Gap evidence No. 3-4's whole certificate (the real estate 4 of this case), Gap evidence No. 3-5's certificate (the real estate of this case), Gap evidence No. 3-6's whole certificate (the real estate of this case), Gap evidence No. 3-6's certificate (the real estate of this case), Gap evidence No. 3-7's certificate (the real estate of this case), Gap evidence No. 3-7's certificate (the real estate of this case), Gap evidence No. 3-8's whole certificate (the real estate of this case).

B. Defendant 1’s donation of this case’s real estate 1-3 is the south of the Nonparty, and Defendant 2’s donation of this case’s real estate 4 is the south of the Nonparty, and Defendant 3’s donation of this case’s real estate 5-8 purchased the real estate 5-8 is deemed to have not paid national taxes notified to the Nonparty. Thus, the Nonparty’s donation and sale of the real estate to the Defendants is not a fraudulent act to evade the Plaintiff’s compulsory execution, which is a tax claim due to the disposition of national taxes in arrears, rather than a national tax notified to

4. Whether the debts are in excess;

(a) On October 2, 2012, excess of obligations at the time of the fraudulent act;

(1) Active property.

On October 2, 2012, the Nonparty’s active property at the time of the fraudulent act on October 2, 2012, other than OOOOO which is the assessed on September 4, 2009 of the instant real property, OOOO which is the assessed on September 4, 2009 of the instant real property, OOO which is the assessed on July 19, 2013 of the instant real property, OOO which is the assessed on July 19, 2013, and OOO which is the assessed on April

OO's 262-1 appraised value of OO's 262-1 O's 2,00 O's 217-10,000 O's O's O's 217-15,000,07-16's O's 262-2,00 O's O's 262-3,262-4, and the appraised value of June 14, 2013 of the building, O's O's 262-1,000 O's O's 17-1,000 O's O's 110-4,105,00 O's 10-10,000 O-2,000 O-4,000 O-2,000 O's O-2,000 O-4,000

② Petty Property

On October 2, 2012, the Nonparty’s passive property at the time of the fraudulent act on October 2, 2012 is the sum of the total amount of KRW OOOO of a national bank secured by OOO 262-1, OOO-dong 262-2, 262-4, OO-dong 262-4, OO-dong 262-4, and the total amount of KRW OOOO of a national tax notified under Paragraph 1(a).

Therefore, the Nonparty donated the instant real estate from 1 to 4, thereby resulting in the Nonparty’s aggravation of debt (affirmative property - OOO - OO - the amount suspected of committing a fraudulent act - OO ). (A) summary statement by each taxpayer 1, A’s summary statement (property statement) 4-2, A’s transfer of real estate and calculation of excess of debt, A’s evidence 3-1 to 4, A’s complete certificate of registration (affirmative property of this case), A’s complete certificate of registration No. 4-10 to 3-10 of the evidence No. 4-10 (affirmative property of this case), A’s five-6’s entire certificate of registration No. 3-6, A’s entire certificate of registration (property of this case), A’s credit claim No. 4-11, see Claim No. 4, and see Claim No.

B. On July 11, 2013, in excess of obligations at the time of the fraudulent act.

(1) Active property.

At the time of the fraudulent act on July 11, 2013, the Nonparty’s active property is the sum of the assessed value of the instant real estate 5 and the assessed value of the instant real estate OOOOOOOOOO in Jeju Special Self-Governing Province, 10-4, 110-5, and 110-6 forest land in Busan, Sep. 9, 2013, the assessed value of September 9, 2013, OOOOOOO, OOOOOOOOO-4, 217-6 forest land 182-4, OOOOOOOO, and 217-6 forest land oOOOO.

② Petty Property

On July 11, 2013, the Nonparty’s passive property at the time of the fraudulent act was notified of the above 2. A, the OOO of the national tax notified under the above 2. A.

Therefore, the Nonparty purchased and sold the instant real estate in excess of the debt, referring to the “△△OO” = (affirmative property OOO – small property OOOO) - The amount suspected of committing a fraudulent act in excess of the debt. [See A’s summary statement (property statement) by each taxpayer, A’s summary statement (property statement) No. 4-2, A’s transfer of real estate and calculation of excess of the debt, A’s 5-8’s registration statement (property 5-8), A’s entire registration statement (property 5-8), A’s certificate No. 4-10’s registration statement (affirmative)

(1) Active property.

At the time of the fraudulent act on September 9, 2013, the Nonparty’s active property at the time of the fraudulent act, as well as the instant real property 6, 7, and 8, is equivalent to the sum of the assessed value of 182-4 OO-dong O-dong, O-dong, O-dong, O-dong, O-O-O-O-O-O-O-dong, O-O-O-O-O-O-O-O-O-6, O-O-O-

② Petty Property

On September 9, 2013, the Nonparty’s passive property at the time of the fraudulent act was notified of the above 2. A, OO of the national tax notified under the above 2. A.

Therefore, according to the sale and purchase of the instant real estate 6, 7, and 8, the Nonparty: (a) under the status of excess of the debt [○○○○○ (affirmative Property OO – Limited Property OOOOO) – OOO for the suspected amount of fraudulent act]; (b) under the status of deepening the excess of the debt; (c) the summary statement by each taxpayer (written summary statement (written summary statement) No. 4-1; (d) the details of the transfer of the real estate and the calculation of excess of the debt under the evidence No. 4-2; (d) the entire registration certificate (6-8) of the evidence No. 3; and (e) the entire registration certificate (affirmative property) No. 9-10 of the evidence No. 4 (affirmative).

5. Bad faith and the Defendants’ bad faith

Under the presumption that at the time of the fraudulent act, the duty to pay national taxes against the Nonparty had already been established and that national taxes would be notified in the near future, the Nonparty was aware that 1-8 of the instant real estate, which is a property available for the appropriation of national taxes owned by himself, was harmful to the Plaintiff as a tax claim at the time of donation and sale.

Defendant 1 is the Nonparty’s South Korea, and Defendant 2 is the Nonparty’s second South Korea, and Defendant 3 should be deemed to have known the fact that the act of donation and the act of sale as the Nonparty’s mother was a fraudulent act, and that he was aware of the Nonparty’s intention of deception.

6. The date on which he becomes aware of a fraudulent act;

In the course of investigating property in order to conduct a disposition on default against the non-party by a public official belonging to Busan District Tax Office, Busan District Tax Office (hereinafter “the Plaintiff”), a certified copy of the title (as of May 30, 2014) and a full certificate of the registered matters (as of April 9, 2014) of the real estate 1-8 and the real estate of this case were issued. The real estate of this case was registered in the Defendant’s name, and the non-party’s fraudulent act was known.

7. Value compensation.

As to the instant real estate 3, the Plaintiff should seek the cancellation of the ownership transfer registration according to the principle of restitution to its original state, but it is inevitable to claim compensation for value due to the impossibility of returning the original property due to the existence of a new interested party after the date of fraudulent act.

In order to recover the amount equivalent to the amount of the plaintiff's claim within the scope of the OOO of the balance remaining after deducting the secured debt at the time of fraudulent act from the sales price of the real estate of this case, the value compensation is sought as stated in the

8. Conclusion

In light of the above facts, the act of the Nonparty’s act of completing the registration of ownership transfer to the Defendants on the grounds of donation and sale constitutes a fraudulent act, which is an act of knowing that it would prejudice the Plaintiff, a creditor, in order to evade the Nonparty’s tax liability. Therefore, the Plaintiff’s claim as stated in the purport of the claim under Article 406 of the Civil Act and Article 30 of the National Tax Collection Act was caused by the Plaintiff’s act of filing the registration of ownership transfer with the Defendants on

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