Busan District Court 2017Gadan329531 (Law No. 21, 2018)

The monetary donation contract between the Defendants and the defaulted taxpayer should be revoked because it constitutes a fraudulent act.

Each contract of monetary donation concluded between the Defendants and the delinquent taxpayers shall be revoked as a fraudulent act, and the Defendants shall be obligated to pay damages for delay calculated at the rate of 5% per annum from the day following the date this judgment became final and conclusive to the day of full payment as to the amount donated by the Defendants.

2018Na52631 Revocation of Fraudulent Act

Korea

YOOOO et al.

Busan District Court 2017Gadan329531

May 9, 2019

May 30, 2019

1. The defendants' appeal is dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

The contract of donation of KRW 80,000,000, which was concluded on August 22, 2016 between Defendant YO and YOOO shall be revoked. Defendant YOO shall pay to the Plaintiff 80,000,000 and interest calculated at the rate of 5% per annum from the day following the day this judgment became final and conclusive to the day of full payment.

The contract of donation of KRW 120,000,000 entered into on August 22, 2016 between Defendant Gab○ and Dob○○○○ shall be revoked. Defendant Gab○ shall pay to the Plaintiff 120,000,000 with 5% interest per annum from the day following the day this decision became final and conclusive to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim against the defendants is dismissed in entirety.

1. Basic facts

This part of the court's explanation is the same as the "1. Basic Facts" on the grounds of the judgment of the court of first instance, and thus, it is accepted by the main text of Article 420 of the Civil Procedure Act.

2. The assertion and judgment

A. Establishment of fraudulent act

According to the above facts, it constitutes a monetary donation to the Defendants, barring any special circumstance, that Hu○○○ paid KRW 80 million as to the instant real estate by the instant check, and that KRW 12 million as the purchase price of Defendant Gamb○○○, on behalf of the Defendants, on behalf of the Defendants, constitutes a fraudulent act as it harms all the general creditors including the Plaintiff (hereinafter “the instant fraudulent act”). In addition, it is acknowledged that Hu○○○○○, the debtor, was an intentional intent, and that the Defendants, the beneficiaries, are presumed to have acted in bad faith.

B. Determination as to the defendants' assertion

1) As to the non-existence of preserved claim

The Defendants asserted that there is no preserved claim since the tax imposition disposition on the instant taxation claim, which is the preserved claim for the instant fraudulent act, is null and void.

However, a beneficiary or a subsequent purchaser, who is the other party to a lawsuit seeking revocation, cannot contest the existence or scope of a creditor's claim established by a judgment (see, e.g., Supreme Court Decision 2003Da19572, Jul. 11, 2003). Moreover, Hu○○ filed a lawsuit against the head of the tax office in Busan District Court 2006Guhap3828 against the head of the tax office seeking confirmation of invalidity of a disposition imposing value-added tax among the tax claims in this case. On June 7, 2007, the judgment dismissing the claim of Hu○○○ on the ground that the above disposition was not null and void per se, and on June 29, 2007, the fact that the judgment became final and conclusive is significant

Therefore, it is reasonable to deem that the Defendants, as beneficiaries of the instant fraudulent act, cannot contest the validity of the taxation imposition disposition on the portion of the value-added tax among the taxation claims in the instant case, which are preserved claims for the instant fraudulent act

Furthermore, the evidence alone submitted by the Defendants alone is not sufficient to recognize that the disposition of imposition on the global income tax portion among the instant tax claims is null and void as a matter of course, and there is no other evidence to

Therefore, this part of the defendants' assertion is without merit.

2) As to the argument that the statute of limitations expired

The Defendants asserts that the instant taxation claim has expired by the lapse of five years of extinctive prescription.

However, in full view of each statement of evidence Nos. 9 and 13, the Plaintiff notified Hu○○○ of the payment of the value-added tax of the instant taxation claim until December 31, 2005, but did not pay it. However, on January 25, 2006, the Plaintiff seized Hu○○’s car (00%000) with the aforementioned value-added tax portion as the preserved bond, and the fact that the attachment registration is maintained until the date is recognized.

According to the above facts, the part of value-added tax in the instant taxation claim was suspended by the attachment, and the scope of suspension is not the value of a passenger car subject to the attachment but the entire part of value-added tax among the instant taxation claims subject to the preservation of the attachment. Moreover, the interruption of prescription by the attachment is extinguished when the attachment is revoked or the execution procedure is terminated (see, e.g., Supreme Court Decision 2016Da239840, Apr. 28, 2017). As the above attachment continues to exist until now, the interruption of prescription remains effective. Accordingly, even if the tax authority did not take the collection procedure of national tax after the attachment, the interruption of prescription does not extinguish.

Therefore, this part of the defendants' assertion is without merit (the part of the value-added tax alone exceeds the plaintiff's claim amount. Thus, it is not necessary to determine whether the statute of limitations for the part of the global income tax expires).

3) As to the assertion that the fraudulent act was not a donation but a repayment of the borrowed money

The Defendants asserted that the Defendants, ○○○○, who received the above 1 million won from the Defendant’s husband of ○○○○, was merely a fraudulent act of borrowing KRW 5 million from May 4, 2001, KRW 43 million on April 22, 2004, KRW 5 million on March 20, 2006, KRW 15 million on March 18, 2006, KRW 78 million on the gift of KRW 15 million on October 16, 207, KRW 200,000,000 from each of the Defendant’s ○○○○○○○○, the Plaintiff received the above 201,000 won on the loan of KRW 1,50,000 from each of the Defendant’s ○○○○, the wife, and KRW 2,501,000,000 on September 3, 200, 2015.

It is not sufficient to acknowledge the existence of the loan obligation to the Defendants on the part of Do○○ merely with the descriptions of Nos. 12 through 18 (including the number of branch numbers). There is no other evidence to acknowledge it.

Rather, as seen earlier, Hu○○○ sold the real estate owned by the branch office, and converted the property into money, and then used the instant checks with the purchase price of the instant real estate purchased by the Defendants around that time. Barring special circumstances, it would be a fraudulent act to change the debtor’s sale of and consumption of the real estate, which is the only property in excess of his/her obligation, into money, barring any special circumstances. The act of Hu○○○○ selling real estate in excess of his/her obligation and using part of the price as the purchase price for the Defendants for the Defendants is a separate act, but each act is very close to time, and the relationship between Hu○○○ and the Defendants, it is reasonable to deem that the above act of Hu○○○○○ constitutes a fraudulent act detrimental to other general creditors as a whole.

Therefore, the above assertion by the defendants is without merit.

4) As to the Defendants’ bona fide assertion

Although the Defendants argued that they were unaware of the fact that the fraudulent act of this case was prejudicial to the general creditors including the Plaintiff, the evidence alone submitted by the Defendants is insufficient to recognize the Defendants’ good faith, and there is no other evidence to acknowledge this, so this part of the Defendants’ assertion is without merit.

(c) Revocation of fraudulent act and reinstatement;

Each monetary donation contract entered into on August 22, 2016 between the Defendants and Hu○○ shall be revoked as a fraudulent act. As a result, the Defendants are obliged to pay the amount of money donated by Hu○○○ to its original state to the original state, Defendant Gamboo shall pay the amount of KRW 80 million, KRW 120 million, and the damages for delay calculated at the rate of 5% per annum as prescribed by the Civil Act from the day immediately after this judgment becomes final to the day of full payment.

3. Conclusion

Therefore, the plaintiff's claim against the defendants shall be accepted on the grounds of all of the grounds, and the judgment of the court of first instance is just in conclusion, and the appeal by the defendants is dismissed, and it is so decided as per Disposition.