It is not a fraudulent act to return the property held in title to the title truster.

It is not a fraudulent act to restore the property held in title to the title truster. Therefore, the revocation of the plaintiff's fraudulent act against the real estate in this case is dismissed

Article 406 of the Civil Act

2018 Ghana 219085 Revocation of Fraudulent Act

Korea

OO

December 12, 2018

on October 16, 2010

1. Around December 3, 2015, an apartment sales right donation agreement concluded between the defendant and AA regarding real estate indicated in the attached real estate indication agreement shall be revoked within the extent of 4,6950,000 won.

2. The defendant shall pay to the plaintiff ****0,00 won and its interest rate of 5% per annum from the day immediately following the day this judgment became final and conclusive to the day of full payment.

3. The plaintiff's remaining claims are dismissed.

4. Of the litigation costs, 75% is borne by the Plaintiff, and 25% is borne by the Defendant, respectively.

Cheong-gu Office

The agreement between the defendant and AA on the donation of apartment ownership concluded on the real estate indicated in the separate sheet on January 25, 2017 shall be revoked within the limit of KRW 205,04,00. The defendant shall pay to the plaintiff*********** and the amount of money calculated at the rate of 5% per annum from the day following the date this ruling becomes final to the day of full payment.

1. Facts of recognition;

A. The Plaintiff’s taxation claim against AA

AA imposed, notified, and failed to pay taxes around September 2015, as follows:

(b) Acquisition and gift of sales rights of AA;

(1) On June 18, 2012, AA was selected from BB as a person eligible for the special supply of A2 block No. A2, and on October 22, 2015, on the A20 block No. A20 block No. 84 (on the basis of exclusive use area), the real estate indicated in the attached real estate indication (hereinafter referred to as “the apartment of this case”) was won upon filing an application for the principal subscription, and on December 3, 2015, the sales contract was concluded for the housing price of LH and the apartment of this case in total of KRW 313,060,000, the amount of options, KRW 7,870,000, total of KRW 320,930,000.

(2) On January 25, 2017, AA entered into a contract for the succession of rights and obligations with the Defendant to the effect that the Defendant succeeds to the rights and obligations under the contract for the sale of the instant apartment on the same day, after completing the contract for the donation to the Defendant, who is the spouse of the instant apartment, and obtaining the seal of approval.

(3) At the time of the above donation contract and the contract of succession to rights and obligations, the sales price for the apartment of this case was paid in KRW 205,04,00 as follows (including actual advance payment advance payment)********,**** as the source was recognized as the payment for the apartment of this case.

(c) AA’s excess of debt;

On December 3, 2015, at the time of the instant apartment sale contract, or on January 25, 2017, AA was in excess of its obligation as follows.

[Grounds for recognition] Gap evidence 1 to 6, Eul evidence 5 (which include a number number; hereinafter the same shall apply)

each entry, the purport of the whole pleading

2. The parties' assertion

A. Summary of the plaintiff's assertion

(1) On January 25, 2017, after A acquired the right to sell the apartment of this case, AA donated the right to sell the apartment of this case to the Defendant on January 25, 2017, and the act of donation of the right to sell the apartment of this case under the excess

(2) Even if the title trust agreement on the instant apartment sale right existed between the Defendant and AA, the said title trust agreement is null and void since the purpose of evading the delinquent tax amount of the instant apartment sale agreement was between A and the Defendant.

(3) Even if the defendant paid the sales price of the apartment of this case, it constitutes a property under the responsibility of AA, since the defendant donated it to A.

(4) AA is presumed to have an intention to know, as it donated the right to sell the apartment of this case for the purpose of tax avoidance, and the defendant's bad faith is presumed in light of the relationship between the original and the defendant.

B. Summary of the defendant's assertion

(1) On June 18, 2012, at the time when A was selected as a person eligible for special supply, AA and the Defendant agreed to donate the right to sell to the Defendant, and even if such agreement has no effect, on December 3, 2015, at the time of signing the sales contract with BB, there was an agreement with the Defendant on the right to sell the instant apartment.

(2) The instant apartment sales right is a unique property acquired by the Defendant with its own property by paying the sales price, and the Defendant’s return of the above sales right, which was a title trust under AA’s name, does not constitute a fraudulent act.

(3) AA’s responsible property subject to compensation for value is KRW 0,00,00 or KRW *,00,00,00, since there was no fact that A had paid the sales price after entering into the apartment sale contract of this case.

(4) The land expropriatedd by the BB Corporation, which was the basis of the instant taxation, is not the inherited property of the AA, but not more than 10 years after the death of the decedent, and the said taxation was made at the time less than 3 years have elapsed since the return and payment of capital gains tax on the compensation for expropriation, and was actively disputing the said disposition through the lawsuit by the GA and the Defendant, and there was no intention of tax avoidance or deception.

3. Determination

A. The time of donation of the right to sell apartment of this case

(1) The fact that A made a gift contract to the effect that AA donated the instant apartment to the Defendant and entered into a contract with BB on January 25, 2017 is identical to the above basic facts.

(2) As to this, the Defendant asserted that AA was granted the right to sell housing already supplied as a person subject to relocation measures in the Southern-U.S. District and around June 18, 2012, and that A was granted the right to sell housing already supplied as a person subject to special supply of housing. According to the facts and the overall purport of the arguments and arguments, AA was selected as a person subject to special supply of housing on June 18, 2012, and the fact that the Defendant paid most of the sale price.

According to Article 41-2(1) of the Housing Act (amended by Act No. 12959, Dec. 31, 2014; hereinafter the same shall apply) and Article 45-2(1) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 25263, Mar. 18, 2014; hereinafter the same shall apply), the status of being selected as the occupant of a house constructed and supplied in a overheated speculative zone cannot be resold until the completion of the registration of ownership transfer for the house in question, in cases prescribed by Presidential Decree, from the date when the first contract for housing supply is possible: Provided, That this restriction may not apply to cases where the status of the occupant of the house or the housing is resold in violation of such restriction. Meanwhile, pursuant to Article 41-2(2) of the former Housing Act and Article 45-2(4)7 of the former Enforcement Decree of the Housing Act, the status of the occupant or the spouse of the housing is recognized as inevitable due to the circumstances of the said person selected as the occupant.

However, as the former Enforcement Decree of the Housing Act provides as a special requirement for the restriction on resale, the term “project owner’s consent” is premised on the conclusion of a housing supply contract with respect to the housing constructed pursuant to the Housing Act. Even if a contract to transfer a house to be supplied in the future was concluded prior to the conclusion of the said housing supply contract, the consent of the project owner for resale of the right to sell the house is impossible, and such agreement is null and void (see, e.g., Supreme Court Decision 2017Da22153, Oct. 12, 2017).

Ultimately, from June 18, 2012, it would be invalid even if it was agreed to donate it to the defendant before entering into a sales contract with LH Corporation on the apartment of this case.

(3) However, in full view of the following circumstances acknowledged by the facts and the purport of each of the above underlying facts and evidence Nos. 2, 3, 4, and 7 and the entire purport of pleadings, it is reasonable to deem that AA donated the instant apartment sales right to the Defendant at the time when the sales contract for the instant apartment was concluded or around December 3, 2015, solely based on the fact that: (a) a gift contract was concluded between A and the Defendant on January 25, 2017; and (b) a contract was concluded on the succession of rights and obligations with BB.

① On December 3, 2015, at the time of entering into the instant apartment sales contract, AA had not already imposed, notified, and paid taxes exceeding KRW 6.3 billion. However, there was no reason to pay the sales price of the instant apartment that may be later seized even before the Defendant’s respective payment deadline.

② On January 25, 2017, the Defendant paid part of the options contract amount, intermediate payments, and remainder of the instant apartment at its own account, before the preparation of the gift agreement and the succession to the rights and obligations under the name of the Defendant.

③ Before the Plaintiff filed the instant lawsuit, the Seoul Regional Tax Office requested AA to submit a funding source for the payment of the purchase price of the instant apartment, which was agreed upon by BB to the Defendant when acquiring the right to move in from BB Corporation, and changed the right to move in to the Defendant after the date the right to move in came to AA, and issued a full payment of the down payment and the intermediate payment to the Defendant.

B. Determination as to the plaintiff's claim for revocation of fraudulent act

(1) The establishment of fraudulent act

(A) On January 25, 2017, whether a contract for sale right donation is a fraudulent act

As determined earlier, at the time of entering into the instant apartment sale contract on December 3, 2015, or around that time, the title of the apartment sale contract was not immediately changed even though the Defendant donated the above apartment sale right to the Defendant, which appears to have been held in title trust with the Defendant for convenience (the Plaintiff asserted that the above title trust agreement between the Defendant and the AA is null and void since it has the objective of tax avoidance. It cannot be deemed that the title trust agreement between the Defendant and the AA bears a tax obligation exceeding KRW 6.3 billion for the purpose of tax avoidance). Meanwhile, on January 25, 2017, the title trust agreement between the Defendant and the AA, which made the gift contract to donate the apartment of this case to the Defendant, and filed an application for change of the title and the transfer of rights and obligations, is that the title trustee changed the name of the right to sell the apartment sale to the Defendant due to the performance of the duty to return the apartment sale right based on the trust act, and thus, it cannot be viewed as a fraudulent act (see, e.g., Supreme Court Decision 2007Da2746.

(B) Whether a contract on the right to sell ownership constitutes a fraudulent act around December 3, 2015

Since the plaintiff's claim of this case is a fraudulent act between the defendant and AA, it shall be cancelled. Thus, it shall be decided that the above claim contains a claim for cancellation of the contract of selling tickets around December 3, 2015.

According to the above facts, the Plaintiff’s taxation claim against AA constitutes a preserved claim against obligee’s right of revocation, and the gift agreement that AA donated to the Defendant the instant apartment sale right, which is an active property, in excess of its obligation and around December 3, 2015, constitutes a fraudulent act, barring any special circumstance, and the obligor’s intent is recognized as the obligor’s deceased will. In addition, the Defendant’s bad faith is presumed to be the beneficiary.

As to this, the Defendant asserted to the effect that the instant taxation disposition was later delayed, and that the said disposition was unlawful and thus, the Defendant was bona fide in relation to the said fraudulent act. Accordingly, the Defendant’s assertion that the Defendant was bona fide against the said fraudulent act, considering the fact that the instant taxation disposition and the AA knew that the instant apartment sales right was donated in excess of the debt, and that even if the said taxation disposition were to be claimed through a lawsuit, the effect of the said taxation disposition at the time of the said gift contract is still effective.

(2) Methods of reinstatement

Where the donation of the right to sell an apartment constitutes a fraudulent act, in principle, the gift contract should be revoked and the right to sell the apartment itself. However, according to each of the statements in the evidence Nos. 2 through 5 and 7, it is recognized that the defendant paid the option contract, intermediate payment, and remainder of the apartment of this case after the contract for the sale of the apartment of this case was concluded on or around December 3, 2015. Accordingly, it is reasonable to deem that it was impossible to cancel the entire contract for the donation of the apartment of this case and recover the status of the buyer as it is. Therefore, the method of reinstatement in this case shall be based on value compensation. Accordingly, on or around December 3, 2015, the contract for the sale of the apartment of this case was paid in KRW 4,6950,00 as the purchase price of the apartment of this case at the time of the donation to the defendant, barring any special circumstance, and thus, the contract was paid in KRW AA, which is the sale contract of this case.

(3) Sub-decisions

Ultimately, around December 3, 2015 between the defendant and AA, the agreement on the donation of the right to sell apartment units in this case constitutes a fraudulent act and the contract is revoked within the market price*,*******,00,00 won, and the defendant is obligated to pay to the plaintiff the compensation for value*****,00,000 won and the damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day following the date this decision became final

4. Conclusion

Thus, the plaintiff's claim of this case is justified within the above scope of recognition, and this is accepted.

The remaining claims are dismissed as it is without merit. It is so decided as per Disposition.