Korea

Defendant (Attorney Lee Dong-won, Counsel for defendant-appellant)

June 7, 2013

1. The plaintiff's main claim is dismissed.

2. (a) The trust agreement between the defendant and the non-party 1 on October 16, 2007 between the defendant and the non-party 1 shall be revoked within the scope of KRW 1,030,000,000, which was entered into in the name of the account holder (Account Number: Account Number omitted).

B. The defendant shall pay to the plaintiff 1,030,000,000 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

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

The primary purport of the claim is to revoke the contract of donation of KRW 1,030,000,000 between the defendant and the non-party 1 on October 16, 2007. The defendant shall pay to the plaintiff 1,030,000,000 with 5% interest per annum from the day following the day this decision became final and conclusive to the day of complete payment.

Preliminary claims: It is as stated in paragraph (2) of this Article.

1. Basic facts

A. Plaintiff’s taxation claim establishment

1) On October 15, 2007, Nonparty 1 entered into a sales contract with Nonparty 2 selling the amount of KRW 5,918 square meters in Yongsan-gu ( Address omitted) at KRW 1.7 billion on August 14, 2007, Nonparty 2 agreed to be paid on October 15, 2007, the sum of KRW 17,000,000 from August 14, 2007, and KRW 670,000,000 from August 22, 2007, to be paid in advance as part of the above sales price, and the remainder of KRW 1,00,00 ( KRW 1.7 billion - KRW 6770,000) was paid on October 15, 2007.

2) On October 16, 2007, Nonparty 1 completed the registration of ownership transfer on the above land to Nonparty 2, and at the same time, Nonparty 2 paid the above KRW 1 billion by cashier’s checks.

3) As Nonparty 1 did not file a final return on the tax base under the above sales contract, the head of a tax office having jurisdiction over the Plaintiff notified Nonparty 1 to pay KRW 1,174,676,880 of the transfer income tax for the year 2007 to Nonparty 1 by January 31, 201 after determining the tax base and tax amount of the capital gains tax pursuant to the above sales contract. However, as of November 29, 2011, Nonparty 1’s failure to pay the said capital gains tax, the amount of the capital gains tax for Nonparty 1’s above capital gains tax, including additional charges, exceeds KRW 1,224,013,300,00, including additional charges.

B. Relationship and monetary payment with Nonparty 1

1) The Defendant is the mother of Nonparty 1, Nonparty 4’s mother of Nonparty 1, and Nonparty 3 is the mother of Nonparty 1.

2) On October 16, 2007, Nonparty 1 deposited cashier’s checks issued from Nonparty 2, 2003,000,000 won in the account (hereinafter “instant payment”) under the name of the Defendant, on October 16, 2007, at the non-party A’s account (hereinafter “instant account”).

C. The debt excess status of Nonparty 1

Nonparty 1, around October 16, 2007, at the time of the payment of this case, was active property of KRW 1,03,00,000,000,000,000,000,000,000,000,000,000,000,000,000 won. However, Nonparty 1, as a passive property, was in excess of

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2-5, Gap evidence 6-1, 2, Gap evidence 7, Eul evidence 1, and the purport of the whole pleadings

2. Judgment as to the main claim

A. The plaintiff's ground of claim

The non-party 1 donated the instant payment to the defendant for the purpose of evading his capital gains tax obligation against the plaintiff and deepened his debt excess. The payment of the instant payment by the non-party 1 constitutes a fraudulent act, and the defendant was also aware of the fact that the said payment by the non-party 1 constitutes a fraudulent act as the father of the non-party 1's mother, and that the non-party 1 had the intention to commit a fraudulent act.

Therefore, as a creditor of Nonparty 1, the Plaintiff cancelled the donation contract of this case, and the Defendant is accordingly obligated to pay the Plaintiff the compensation for the equivalent value of KRW 1,030,000,000 and damages for delay.

B. Determination

In light of the above facts, the contract of this case was concluded by the defendant 1 to the non-party 1 to whom the non-party 1 was given consent, and the non-party 1 to the non-party 1 to whom the non-party 3 was given, and the non-party 1 to whom the non-party 3 was given the non-party 1 to the non-party 1 to the non-party 1 to the non-party 1 to whom the non-party 1 to whom the non-party 1 to whom the non-party 1 to whom the non-party 1 to whom the non-party 3 was given the non-party 1 to the non-party 2 to whom the non-party 1 to whom the non-party 1 to whom the non-party 1 to whom the non-party 5 to whom the non-party 1 to whom the non-party 1 to whom the non-party 3 to whom the non-party 1 to whom the non-party 1 to whom the non-party 1 to whom the non-party 1 to this case had been sent.

3. Judgment on the conjunctive claim

(a) Occurrence of the right to revoke the fraudulent act;

(i)the existence of preserved claims;

A) In principle, a claim protected by the obligee’s right of revocation is required to be constituted prior to the occurrence of an act that can be seen as a fraudulent act, but it is highly probable that the legal relationship has already arisen at the time of the fraudulent act, and that the claim should be established in the near future. In the near future, where a claim has been established as a result of realizing the possibility thereof in the near future, the claim may also become a preserved claim. This legal principle also applies to a tax claim. As such, inasmuch as there was a basic legal relationship as to the occurrence of a tax claim even though there was no disposition of imposition due to the specific decision of correction, etc. at the time of the fraudulent act, and where a tax claim was established specifically through a series of procedures, such as the actual decision of correction, etc., under the circumstances where it is highly probable that a claim may be established in the near future, such a tax claim may become a preserved claim of the obligee(see, e.g., Supreme Court Decisions 200Da37821, Mar. 23, 2001).

In addition, according to Article 21 (2) 2 of the former Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007), Articles 92, 98, and 105 of the former Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007), and Article 162 (1) of the former Enforcement Decree of the Income Tax Act (amended by Act No. 2030 of Oct. 17, 2007), capital gains tax is paid by preliminary return and payment, and the liability to pay capital gains tax is established on the last day of the month in which the amount which serves as the tax base is settled, which is the last day of the month in which the tax base occurs.

B) According to the above legal principles, according to the facts acknowledged in the health team and the above basic facts, the non-party 1 sold the land as stated in the above 1. A. (1) to the non-party 2 on October 15, 2007, and there was a basic legal relationship as to the Plaintiff’s transfer income tax claim, and the non-party 1’s above transfer income tax liability was established upon the lapse of October 31, 2007, which is the last day of the month in which the date when the above transfer income tax claim is highly probable to occur in the near future, and the non-party 1’s specific tax liability became final due to the occurrence of the transfer income tax base and the procedure for determining the amount of capital gains tax. Thus, even if the above tax claim against the non-party 1 was established after October 16, 2007, the Plaintiff’s transfer income tax claim against the non-party 1 can be the preserved claim of the obligee’s right of revocation.

2) The non-party 1's fraudulent act and intent to commit suicide, and the defendant's bad faith

A) In a case where a deposit contract is concluded through a real name verification procedure under the Act on Real Name Financial Transactions and Confidentiality and the fact of the real name verification is clearly stated in the deposit contract statement, it would normally be reasonable to interpret that the deposit title holder, the person carrying out the deposit title-holder, or the person acting in his/her behalf, as the deposit title-holder, intends to be a party to the deposit contract, and it would be reasonable to clarify the legal relationship as to the party to the deposit contract. In addition, such legal principle as to the interpretation of the party to the deposit contract is equally applicable in a case where the deposit title-holder, etc. was present at the financial institution and entered in the deposit contract or a third party, such as the fund contributor, etc. entered into the deposit contract as the proxy by delegation by the deposit title-holder (see Supreme Court en banc Decision 20

B) In accordance with the above legal principles, the fact that Nonparty 1 opened the instant account in the name of the Defendant in trust with the Defendant, and deposited the instant account in the name of the Defendant. Nonparty 1 did not dispute between the parties, and the fact that Nonparty 1 was in excess of the obligation at the time of the instant payment is as shown in the above basic facts. Therefore, Nonparty 1 and the Defendant may request the Defendant to return the instant payment deposited in the instant account from the Defendant. However, in external relations with financial institutions or third parties, insofar as the trust in the name of the owner of the deposit is not terminated, insofar as the trust in the name of the owner of the deposit does not terminate, the payment of money deposited in the instant account in the name of the Defendant cannot be sought or seized with the Defendant’s claim against Nonparty 1 or the third party. Thus, Nonparty 1’s act of making the deposit owner’s name in the name of the Defendant in excess of the obligation constitutes a legal act reducing liability in relation to Nonparty 1’s general creditor, and thus, Nonparty 1 and Nonparty 1’s general beneficiary’s consent to avoid the instant trust account.

C) As to this, the Defendant asserts that since the instant payment was used by both Nonparty 1, Nonparty 3, and Nonparty 4, the deposit owner title trust was terminated or invalidated, there is no subject of revocation of fraudulent act. The Defendant’s failure to use the instant payment at all, does not constitute the beneficiary, who is the other party to the lawsuit seeking revocation of fraudulent act.

In light of the following circumstances, ① fraudulent act means that it is impossible to fully satisfy claims due to the obligor’s act of disposal of property by reason of insufficient claims or lack of joint collateral that had already been secured due to the obligor’s act of disposal of property, and even if the obligor’s legal act is a false representation, it can be subject to obligee’s right of revocation (see Supreme Court Decision 97Da50985, Feb. 27, 1998). In light of the purport of the revocation system focusing on the obligor’s right of revocation, rather than the beneficiary’s actual acquisition of property, it cannot be deemed that the obligor did not actually use the payment in this case, even if Nonparty 1, Nonparty 3, and Nonparty 4 did not fall under the beneficiary, or that the Defendant does not fall under the beneficiary. ② In order for Nonparty 1 to cancel the trust of trust due to the purpose of the Act on Real Name Financial Transactions and Confidentiality, the obligee’s right of revocation and the subsequent purchaser’s right of revocation cannot be seen as being out of the deposit under the name of Nonparty 1’s deposit.

3) Sub-decisions

Therefore, it should be deemed that the Plaintiff’s right of revocation has occurred regarding the deposit-based trust agreement between Nonparty 1 and the Defendant.

(b) Revocation of fraudulent act and reinstatement;

Therefore, according to the Plaintiff’s obligee’s right of revocation, a trust agreement entered into between the Defendant and Nonparty 1 with respect to the instant account on October 16, 2007 shall be revoked within the scope of KRW 1,03,00,000,000 for the instant payment. The Defendant, a beneficiary, is obligated to pay damages for delay calculated at the rate of KRW 1,03,000,000 for the Plaintiff, the obligee, and 5% per annum from the day following the day this judgment became final and conclusive to the day of full payment.

4. Conclusion

Therefore, the plaintiff's primary claim is dismissed as it is without merit, and the conjunctive claim is accepted as it is decided as per Disposition.

Judges Choi Sung-sung (Presiding Judge)