[1] The elements to acknowledge that a donation contract is established by a false conspiracy with a false conspiracy with respect to money remitted by the debtor to another person's deposit account, and the burden of proof on such contract (=a cancelled creditor)

[2] Whether it can be presumed that there was an agreement between the remitter and the account holder with the intent to grant the remittance amount free of charge to the account holder on the sole basis of the fact that a person with a certain personal relationship knew that he/she remitted the money to his/her own deposit account to the account holder in order to avoid tracking the taxation authority, etc., or that he/she consented or understood to, or allowed to do so for such a purpose

[1] In order for a debtor to have concluded a donation contract by false agreement with a false agreement with regard to money remitted to another person's deposit account, it shall be interpreted that, above all, the debtor and the other person agree with the intention to grant the money remitted as such through such false agreement so that it can be reverted ultimately to another person. The burden of proof as to such remittance is the creditor who asserts that the above remittance is subject to the creditor's right of revocation.

[2] In the event of a transfer of money to another person’s deposit account, the remittance may be made based on various legal causes. The mere fact that a person with a certain personal relationship consented or understood to transfer money to his/her own deposit account or to the actual control of his/her own deposit account with the knowledge of the fact that he/she transfers money to another person’s deposit account in order to avoid tracking a taxation authority, etc., barring any special circumstance, it cannot be easily concluded that there was an agreement between the remitter and the account holder with the intent to grant the remittance amount free of charge as above to the account holder, barring any special circumstance. In the case of a deposit account opened through a real name verification procedure under the Real Name Financial Transactions Act, even if the account holder has the right to claim the return of the deposit as a party to the deposit account, this is related to the financial institution where the account was opened, and thus, the legal relationship between the remitter and the account holder does not immediately change.

[1] Articles 108, 406, and 554 of the Civil Act; Article 288 of the Civil Procedure Act / [2] Articles 108, 406, and 554 of the Civil Act; Articles 202 and 288 of the Civil Procedure Act

[2] Supreme Court en banc Decision 2008Da45828 Decided March 19, 2009 (Gong2009Sang, 456)

Korea

Defendant 1 and one other

Seoul High Court Decision 2011Na43404 decided March 6, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the misapprehension of legal principles as to the limitation period for obligee's right of revocation

Examining the record in light of the relevant legal principles, the court below is just in rejecting the defendant's defense that the lawsuit in this case is unlawful, even with the exclusion period for the exercise of the creditor's right of revocation, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to the exclusion period

2. As to the misapprehension of legal principles as to the formation of a gift contract

A. The court below acknowledged the fact that the debtor non-party 1 remitted money, without any consideration or consideration, to a deposit account opened in the name of his wife and his wife without any consideration and in the name of the defendants, and used it for personal purposes, such as agreement amount of criminal cases against himself. Thus, the court below ordered non-party 1 to pay money equivalent to the amount of money transferred from the defendant to the defendants without compensation to the defendants as above, barring any special circumstances, for the reason that the transfer of money to each account in the name of the defendants to the defendants, the transfer of the money to the defendant to the defendant to the defendant to the above account shall be deemed to have reached the agreement between the non-party 1 and the defendants on each donation, and ordered the defendants to pay money equivalent to the amount of money transferred from non-party 1 to the plaintiff as a result of the revocation and restitution to the original state.

B. However, it is difficult to accept the lower court’s determination that the gift contract was concluded between Nonparty 1 and the Defendants with respect to Nonparty 1’s above remittance.

(1) In the instant case, in order to have concluded a donation contract with a false conspiracy on the money remitted by Nonparty 1 to the Defendant’s deposit account, it should be interpreted that, first of all, the Defendants have agreed to give the Defendants a “donation” and free of charge as it is ultimately attributable to Nonparty 1 and the Defendants. In addition, the burden of proof on each of the aforementioned transfers is that the Plaintiff asserts that the act is a fraudulent act subject to the obligee’s right of revocation.

Meanwhile, in the event of a transfer of money to another person’s deposit account, the remittance may be made based on various legal causes. The mere fact that a person with a certain personal relationship knowingly consented or understood to transfer money to his/her own deposit account to avoid tracking of a taxation authority, etc. or to allow him/her to actually control his/her own deposit account for such purpose may not be easily concluded that there was an agreement between the remitter and the account holder that he/she would give the remittance amount free of charge as above to the account holder, barring any special circumstances. This cannot be readily concluded that the account holder has the right to claim the return of deposit as a party to the deposit contract (see, e.g., Supreme Court en banc Decision 2008Da45828, Mar. 19, 2009) even if the account holder has the right to claim the return of deposit as a party to the deposit contract (see, e.g., Supreme Court en banc Decision 2008Da45828, Mar. 19, 2009).

(2) However, according to the facts and records of the decision of the court below, Defendant 1, the wife of Nonparty 1, had Nonparty 1 use the account opened in his own name. Defendant 2, the wife of Nonparty 1, consented to opening a deposit account in his own name and use it. Accordingly, Nonparty 1 had the passbook and transaction seal with respect to each of the above deposit accounts in the name of the Defendants, and then voluntarily transferred money to the account opened in the name of the Defendants for avoiding the financial tracking of the tax authorities, and then withdrawn most of the money again within a period of not more than two months (in Defendant 2’s account, the remittance was more than KRW 130 million,000,000,000,000 which was more than KRW 13,45,000,000,000 which was remitted, which was included in the amount already deposited before the date of remittance as stated in the decision of the court below.) It is acknowledged that it was an agreement for personal consumption, such as a criminal case.

In light of the various circumstances surrounding the use of the deposit account in the name of the Defendants, such as the details and purpose of Nonparty 1’s remittance, the timing and amount of withdrawal of the remitted money, the use thereof, the relationship between Nonparty 1 and the Defendants, etc., barring any other special circumstances, Nonparty 1 is limited to the use of each of the deposit accounts in the name of the Defendants for personal purposes under the consent or understanding of the Defendants for the management of his own money, and it does not mean that there was an agreement with the Defendants on the granting of the money deposited in the said deposit account or the pecuniary profit equivalent to the amount thereof, which is ultimately reverted to the Defendants.

(3) If so, the court below erred by misapprehending the legal principle as to donation contract or creditor's right of revocation, or by recognizing facts contrary to logical and empirical rules, which affected the conclusion of the judgment, on the premise that each remittance by Nonparty 1 constitutes a gift contract against the Defendants. The ground of appeal assigning this error is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)