Revocation of Fraudulent Act and Return of Unjust Enrichment

No transfer registration of ownership made by ordering the delinquent taxpayer to pay real estate owned by him/her to the title trustee shall be deemed a fraudulent act.

1. The plaintiff's claims against the defendants are all dismissed.

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

1. On April 5, 2007, the sales contract concluded on April 5, 2007 between the Defendants with respect to the real estate indicated in the separate sheet was revoked, and Defendant Kim Jong-○ shall implement the procedure for the registration of cancellation of ownership transfer, which was completed on April 10, 2007 by the receipt ○○○○○○○○○ on the part of the Defendants.

2. Defendant Park Jong-○ shall pay to the Plaintiff 151,627,693 won with 5% interest per annum from April 5, 2007 to the delivery date of a copy of the instant complaint, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. On September 16, 2004, 000, ○○○○○○○○○○○○ (hereinafter “instant real estate”) participated in the auction procedure for real estate rent on the attached list (hereinafter “instant real estate”) and was awarded the instant real estate in KRW 156,80,00, by winning the bid under the name of Defendant Park Jong-○, a fraudulent act. Of the successful bid price, 56,80,000 out of the successful bid price, 56,80,000 won was paid with its own funds, and the remainder of 100,000 won was paid with the real estate mortgage loan from ○○○○ bank.

B. On September 16, 2004, ○○○○○○○○○○○3, which received the ○○ District Court on September 16, 2004, completed the registration of ownership transfer on the ground of sale due to voluntary auction as of September 16, 2004. Meanwhile, the registration of ownership transfer was completed on the ground of Defendant Park○○○○○, ○○○○○○○○○○○○○, a stock company with the right to collateral security, and the maximum debt amount as of KRW 12

C. Meanwhile, when borrowing KRW 170,000 from Defendant Kim ○○, a husband of the instant real estate, and making it impossible to repay it, the leap○○○ was agreed to transfer the ownership of the instant real estate in lieu of repayment. On April 5, 2007, Defendant Kim○-○ entrusted the authority to dispose of the instant real estate by Defendant Park○○○○, and Defendant Kim○-○ was entrusted with the authority to dispose of the instant real estate, and on April 5, 2007, Defendant Kim○-○ entered into a sales contract with the sales value of the instant real estate as KRW 180,000 (hereinafter referred to as “this case sales contract”) and completed the registration of ownership transfer on April 10, 2007, under the name of Defendant Park○-○○, who was delegated with the authority to dispose of the instant real estate by Defendant Park○-○.

D. Meanwhile, ○○ was registered as a representative director in the form of the pertinent company as a third shareholder who owns 50% of the shares of ○○○○ Social (hereinafter referred to as “○○ Social”) and was registered as a ○○○○○○○○○○ was subject to a tax investigation from February 26, 2007 to April 9, 2007 on the ground that the ○○○○ Social was not paid corporate tax for the year 2002 to 2006, on the ground that the ○○○○ Social was not paid. Since then, around July 12, 2007, ○○○○ was notified to pay KRW 345,467,420 as a second taxpayer of the said ○○ Social from February 26, 2007.

Facts that are not inconsistent with the grounds for recognition, Gap evidence 1-1 through 9, Gap evidence 2, 3, 6, 8, Eul evidence 4, 5, Eul evidence 7-1 through 3, and the purport of the whole pleadings.

2. Determination on the claim for revocation of fraudulent act against the Defendants

A. The plaintiff's assertion

The Plaintiff asserts that, under the premise that ○○○ is the actual owner of the instant real estate, and that the instant real estate is the responsible property of ○○○○○, the act of selling the instant real estate to Defendant Kim○○ is a fraudulent act detrimental to general creditors including the Plaintiff, and thus, Defendant Kim○ should cancel the sales contract between the Defendants, and Defendant Kim○ should implement the procedure for registration of cancellation of ownership transfer registration of the instant real estate to Defendant Park○○○○.

B. Determination

In light of the facts of this case, in a case where a person who intends to purchase real estate at an auction auction constructor of real estate under an agreement with another person to obtain a permit for sale in his/her own name and obtain a permit for sale under another person's name, the person who takes the position of purchaser in the auction procedure is the title holder. Thus, the ownership of real estate for auction purpose is subject to acquisition regardless of who is the person who actually bears the purchase price (see, e.g., Supreme Court Decisions 2004Do6908, Dec. 23, 2004; 2002Du5351, Sept. 10, 2002). In light of the above legal principles of this case, the owner of this case's real estate shall be deemed to be Defendant Park○, as well as externally and externally, so it cannot be deemed to be a responsible property of ○○, and as long as the plaintiff is not in the position of a general creditor against Defendant Park Jong-○, the plaintiff's assertion about this part of this case's real estate shall not be justified.

3. Determination on the claim for return of unjust enrichment against Defendant Park ○-○

A. The plaintiff's assertion

Defendant Park Jong-○, as a title trustee of Ma○○, obtained the instant real estate with the funds of Ma○○○○, thereby unjust enrichment of a bid price of KRW 151,627,693 (the actual bid price is KRW 156,80,000). As such, Defendant Park Jong-○, as a title trustee of Ma○○, is obligated to return it to the Plaintiff who subrogated Ma○○.

B. Determination

(1) In the auction procedure for real estate, where a permit for sale was granted under an agreement with a person who intends to purchase real estate in his/her own name with another person to obtain a permit for sale in another person's name, ownership of real estate for auction purposes shall be deemed to have been acquired by the title holder regardless of who is the person who actually bears the purchase price. In this case, a title trust relationship is established between the person who bears the purchase price and the person who lends his/her name (see, e.g., Supreme Court Decisions 2004Do6908, Dec. 23, 2004; 2002Du5351, Sept. 10, 202); however, a title trust agreement is null and void pursuant to Article 4 (1) of the Act on the Registration of Real Estate under Actual Titleholder's Name. Since the title truster cannot acquire ownership of the relevant real estate from the beginning, the damage suffered by the title truster due to the invalidation of the said title trust agreement shall be deemed to have been provided to the title trustee, not the relevant real estate purchase fund.

(2) In light of the above legal principles in the facts of this case, Defendant Park Jong-○, as a title trustee, has the obligation to return KRW 58,000,000,000, which was received from le○○, out of KRW 156,80,000, the successful bid price of the real estate of this case, to le○○○. However, Defendant Park Jong-○, as seen earlier, transferred the ownership of the real estate of this case to Defendant Kim○-○ on April 5, 2007 according to the direction of le○, which is a trust, can be deemed as a substitute payment in lieu of the performance of monetary obligation. Accordingly, the obligation to return unjust enrichment to le○○○○○, which is ultimately the obligation to return the real estate of this case, was extinguished as a repayment. Accordingly, the Plaintiff’s claim seeking subrogation on the premise that there was a claim for return of unjust enrichment against Defendant Park Jong-○○○, is without merit.

4. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is dismissed as it is without merit. It is so decided as per Disposition.

List

(Indication of one building)

○○○○-si ○○○-dong ○○○○○-dong ○○○○○-dong

(Indication of Land Subject to Site Right)

○○○-si ○○○-dong ○○○-dong ○○○-dong 515m2

(Indication of the building in exclusive use)

Number of a building: ○○○○○○○

Structure of a building: A reinforced concrete brick structure;

The area of a building: 83.86§³;

(Indication of Site Right)

Purpose of site ownership: Ownership of site

The ratio of right to a site: 32.47. (End)