Transfer of real estate only to a fraud under high probability of establishing a taxation claim, constitutes a fraudulent act.

In a lawsuit seeking revocation of a fraudulent act, the fact that the beneficiary was unaware of the fraudulent act has the burden of proof to the beneficiary, and in recognizing that the beneficiary was bona fide, objective and acceptable evidence should be supported, and only a unilateral statement of the debtor or a statement that is merely a third party's trend cannot be readily concluded that the beneficiary was bona fide, and there is no reflective evidence that the beneficiary was unaware of the beneficiary's bad faith.

2014 Ghana 215419 Revocation of Fraudulent Act

Korea

KimA

August 22, 2014

September 19, 2014

1. The sales contract concluded on April 3, 2013 between the Defendant and KimB is revoked.

2. The defendant will implement the procedure for cancellation registration of transfer of ownership, which was made on April 3, 2013 by the Busan District Court North Busan District Court's Northern Branch Office, No. 18660, with respect to the real estate listed in the separate sheet to KimB.

3. The costs of lawsuit shall be borne by the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

A. From June 1, 201 to June 17, 2013, KimB is the representative of a corporate entity that runs a construction business under the trade name of OOB OO-dong 339-42 to "CC Construction". (b) When CC Construction fails to pay taxes as set forth in the table below or 6, and closes down on June 17, 2013, the head of Dong-dong Office under the Plaintiff-B as an investor pursuant to Article 39 of the Framework Act on National Taxes on the same day, KimB designated KimB as the secondary taxpayer, and notified KimB of the tax payment of the table Nos. 1 through 6 as set forth below to KimB on July 17, 2013, and with respect to the personal business (CC) of KimB, the value-added tax was imposed on January 7, 2013, and the income tax was imposed on May 18, 2013 as set forth below.

No.

Sub-Items :

Amount in arrears

Deadline for payment

Year

Date of establishment of tax liability;

1

Value-added Tax

OOO

September 30, 2012

2012.1

June 30, 2012

2

Value-added Tax

OOO

December 31, 2012

2012.1

June 30, 2012

3

Value-added Tax

OOO

December 31, 2012

2012.1

June 30, 2012

4

Value-added Tax

OOO

March 31, 2013

2012.2

December 31, 2012

5

Earned income tax

OOO

April 30, 2013

2012

December 31, 2012

6

Corporate Tax

OOO

May 31, 2013

2012

December 31, 2012

7

Value-added Tax

OOO

January 31, 2013

208.1

June 30, 2008

8

Global Income Tax

OOO

July 31, 2013

208

December 31, 2008

Total

OOO

(C) On April 3, 2013, KimB sold the real estate listed in the separate sheet (hereinafter referred to as the “instant real estate”) to the Defendant, who is a fraud, on the same day, and completed the registration of transfer of ownership as stated in Paragraph (2) of the order to the Defendant on the same day.” (c) KimB had: (a) the market value of 1523D No. 30 of 1523 DoD No. 102-3006, Dec. 37, 2012, which is the active property at the time of the instant sales contract, is equivalent to KRW OB(OOO) at the market value of 1523 DoD No. 306, 122.37 square meters of the above real estate; and (b) as a small property, there were OOO members at the EE Bank’s debt debt OO, KimFF’s debt fF, and the above amount of national taxes against the Plaintiff.

[Ground of recognition] Facts without dispute, the purport of Gap's evidence as a whole

2. Judgment on the plaintiff's claim

(a)the existence of preserved claims;

이 사건 매매계약은 김BB이 원고로부터 주식희사 CC건설의 제2차 납세의무자로 지정되어 납부최고를 받기 전에 체결된 것이기는 하지만, 주식회사 CC건설에 대한 조세채권은 이미 이 사건 매매걔역이 있기 이전에 납세의무가 성립되어 있었으므로, 그 성립의 기초가 되는 사실관계는 이미 발생되어 있었고, 이러한 사실관계에 따라 가까운 장래에 이 사건 조세채권 성립하리라는 고도의 개연성이 있었으며, 실제로도 이러한 개연성이 현실화되어 이 사건 조세채권이 성립한 것이므로, 김BB에 대한 조세채권은 채권자취소권의 피보전채권이 된다.

B. Establishment of fraudulent act

Unless there are special circumstances, the instant sales contract concluded by KimB on the instant real estate with the Defendant who is a fraud in excess of the debt, and the obligor, KimB, and the Defendant, the beneficiary, is presumed to have been malicious. Therefore, the Plaintiff, the creditor of KimB, can claim the cancellation of the instant sales contract and its restoration to its original state.

C. Judgment on the defendant's assertion

The defendant asserts that the defendant is a bona fide beneficiary who did not know that he would prejudice the creditor, such as the plaintiff, etc., since the contract of this case was concluded and the registration of transfer of ownership is completed due to the reason that he/she received the payment for the wage claim of the OOOB and the payment for the deposit for the OOO's deposit.

However, there is no evidence to prove that KimB had been liable to the Defendant, and thus, KimB cannot be deemed to have paid the instant real estate in lieu of the Defendant, and even if the payment was made in lieu of the Defendant’s assertion by the Defendant, if the liability property of KimB, the obligor, reduced, thereby resulting in excess of the obligation, such act would be deemed a fraudulent act unless there are special circumstances.

In addition, in a lawsuit seeking revocation of a fraudulent act, the beneficiary has the burden of proof against the beneficiary that the beneficiary was unaware of that fraudulent act. If the debtor's act of disposal of the property against a third party constitutes a fraudulent act, there should be objective and acceptable evidence in recognizing that the beneficiary was bona fide at the time of the fraudulent act, and it should not be readily concluded that the beneficiary was bona fide at the time of the fraudulent act only with the unilateral statement of the debtor or a statement that is merely a third party (see Supreme Court Decision 2006DaOOO delivered on April 14, 2006).

Under the above legal principle, the defendant, who is a beneficiary, is presumed to be maliciously, and there is no evidence to reverse the presumption.

Ultimately, the defendant's argument is without merit.

D. Sub-committee

Therefore, the sales contract of this case shall be revoked as it constitutes a fraudulent act, and the defendant is obligated to implement the procedure for cancellation registration of transfer of ownership as stated in Paragraph 2 of this Article to KimB as the restoration to its original state.

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.