Property division, unless the property division is excessive, is not revoked by the creditor.

Unless there are special circumstances to recognize that division of property is excessive beyond a considerable degree, a fraudulent act is not subject to revocation by a creditor, and there is a creditor who bears the burden of proving that division of property is an excessive division of property exceeding a considerable degree.

Article 839-2 of the Civil Act

2014 Gohap50951 Revocation of Fraudulent Act

Korea

○ Kim

November 6, 2014

November 27, 2014

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

A property division contract concluded on June 17, 2010 with respect to ○○○○○○○○dong, ○○○○○○ apartment (hereinafter “instant apartment”) with respect to the Defendant’s ○○○○○○○○○○○○○○○○○○○ apartment (hereinafter “instant apartment”) on June 17, 2010 shall be revoked within the limit of KRW 00,000,000, and the Defendant shall pay to the Plaintiff 5% interest per annum from the day following the day when the instant judgment became final and conclusive to the day when the instant judgment is fully paid.

1. Basic facts

A. On April 5, 2010, Nonparty ○○○○-dong, ○○○-dong, 000 square meters and the same as 00 square meters for ○○-dong, ○○-dong, ○○-dong on the same basis

Although a contract was concluded to sell 00 m200 m2 (hereinafter referred to as the "real estate of this case") to the ○○○○ Road of this case (hereinafter referred to as the "real estate of this case"), the transfer income tax arising from the above contract was not reported to the tax office.

B. Meanwhile, from May 23, 1984, ○○○ and the Defendant had a legal marital relationship with the Defendant. The Gangnam○ and the Defendant agreed to divorce on June 17, 2010, and they owned the apartment of this case, which is the only property of Gangwon○, as a property division. The Defendant acquired the debt of KRW 00 billion with the maximum debt amount for the four loans established on the said real estate, and the Defendant completed the registration of ownership transfer in the name of the Defendant with respect to the apartment of this case on August 5, 2018, with the content that the Defendant assumed the debt of KRW 4 billion with the maximum debt amount for the loans established on the said real estate, and bears the child support, etc. for his children (the same day, a notary public was certified as KRW 000 on July 19, 2010 by the Law Firm○○, etc.).

C. Around December 1, 201, the head of the ○○ Tax Office under the Plaintiff-affiliated tax office imposed KRW 000,000,000, total amount of capital gains tax on the instant real estate, including KRW 000,000,000 due to the filing of the report and the nonperformance of payment, and KRW 00,000,000 due to the failure to pay the penalty tax on the instant real estate, on December 31, 2011. However, the Gangwon-do Tax Office notified that the said notified tax amount was not paid by the due date, and around February 10, 2014, the amount in arrears as of February 10, 2014, is KRW 00,000 (hereinafter “instant tax claim”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 2, and the purport of whole pleadings

2. Determination

A. Whether there is a preserved claim

A transfer income tax claim is naturally established without any separate act of a tax authority or a taxpayer on the last day of the month in which the amount forming the tax base of capital gains tax occurs (see Article 21(2)2 of the Framework Act on National Taxes and Supreme Court Decision 88Nu2519 delivered on October 13, 1989).

As of April 30, 2010, the establishment date of the duty to pay the instant tax claim was already an abstract duty to pay taxes on June 17, 2010, when the instant property division agreement was concluded, and it was highly probable that the tax authority would impose capital gains tax upon the Plaintiff who filed a return of capital gains tax pursuant to each of the instant real estate sales contract in the near future. After that, the Plaintiff actually decided on December 31, 201 with the Gangwon ○○○ by determining and notifying the capital gains tax on December 31, 201, and thus, the instant tax claim becomes a preserved bond of the obligee’s right to revoke the instant tax claim.

Meanwhile, the secured claim of the obligee’s right of revocation includes the interest or delay damages incurred from the date of the closure of pleadings in the fact-finding court. The additional charges prescribed in Article 21 of the National Tax Collection Act are the kind of incidental tax imposed in the meaning of the interest on the unpaid portion in the event national taxes are not paid by the due date. As long as the tax claim is recognized as the preserved claim of the obligee’s right of revocation, the amount of the relevant tax claim includes the additional charges incurred from the time of the completion of arguments in the fact-finding court after the fraudulent act (see Supreme Court Decision 2006Da66753, Jun. 29, 2007). As such, the additional charges for the delinquency of the preserved claim in the instant tax

B. Whether the fraudulent act was established

1) Division of property following divorce shall be the liquidation of the joint property created by the cooperation of both spouses during marriage.

Inasmuch as the economic difficulty of supporting the other party is a system that has the nature of supporting the other party, and even if a debtor in excess of his/her obligation has a result of reducing the joint security against the general creditor by transferring a certain property to his/her spouse through division of property, such a division of property does not become subject to revocation by a creditor as a fraudulent act, barring any special circumstance that may deem that such division of property exceeds a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act, barring any special circumstance. However, it cannot be deemed as a legitimate division of property as to a portion exceeding a considerable degree, and thus can be subject to revocation. However, the burden of proving that there are special circumstances that it is excessive division of property beyond a considerable degree is the creditor (see, e.g., Supreme Court Decision 2006Da3258, Sept. 14, 206).

2) The instant agreement on division of property is deemed excessive division of property as seen above.

In light of the above facts, it is difficult for ○○○○○○○○○○○○ to transfer the ownership of the instant apartment to the Defendant, the only real estate for which ○○○○○○○○○○○○○○○○○○○○○○○○ to share the Plaintiff’s property division, as seen earlier. According to each of the evidence Nos. 7 and 8, ○○○○ at the time of April 3, 2013, ○○○ still registered as residents of the instant apartment. On the other hand, according to the above evidence, No. 1 and the purport of the evidence No. 1, the Defendant’s claim for property division of the instant apartment on June 22, 2010, based on the premise that the Plaintiff’s claim for property division of KRW 00,000,000 and KRW 20,000,000,000,000,000 won, which are the Defendant’s 200,000 won.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.