Lawsuit seeking revocation of fraudulent act (real estate)

Any act of a delinquent taxpayer who donates real estate acquired by the delinquent taxpayer as one-half equity to his/her spouse after marriage to another spouse may be deemed a fraudulent act detrimental to the creditor.

Article 24 [Attachment] of the National Tax Collection Act

Seoul Western District Court 2017Kadan101988 ( November 24, 2017)

Korea

Section AA

November 03, 2017

November 24, 2017

1. As to shares of 1/2 of the real estate listed in the separate sheet:

A. The Defendant and Nonparty KimB (○○○○○-○○○○○○○○○○○) cancel a gift agreement concluded between the Defendant and Nonparty KimB (○○○○○○○○○○○○○○○○○○○○).

B. The Defendant shall implement the procedure for cancelling the ownership transfer registration that was completed by Nonparty KimB as the Seoul Western District Court’s Northern District Court’s Seoul Western District Court’s ○○○○○○○. ○○, received on 1508.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order of the Gu office.

1. Basic facts

A. Nonparty KimB operated a trucking transport business from ○○○○○○, to ○○○○, ○○○, from ○○○, to ○○○, with the trade name called “CC Cargo” from ○○○, ○○, ○○, ○○.

B. In relation to the operation of the above business, KimB confirmed that the input tax amount for the business performance of February 2010 (7.1. to December 31, 2012) was illegally deducted, and that the head of the tax office affiliated with the Plaintiff notified KimB of the amount of value-added tax 16,320,520, and the amount of value-added tax 16,320,520 for the second year of January 31, 2012, and 200, the head of the tax office affiliated with the Plaintiff notified KimB of the amount of global income tax 39,078,480 for the second year of June 30, 2012, respectively.

C. However, due to the KimB’s failure to pay the above taxes, national taxes in arrears are KRW 94,134,120, including additional dues and increased additional dues as of March 6, 2017.

D. Around 2006, the Defendant divorced from the former wife and liveded with the married couple on July 7, 2016, and completed the marriage report on July 7, 2016. E. The Defendant purchased real estate listed in the separate sheet (hereinafter “instant real estate”) for the purpose of residing together with the KimB and completed the registration of ownership transfer on August 19, 2016 with the Defendant and KimB, respectively.

F. On January 9, 2017, KimB and the Defendant entered into a contract of donation with respect to one-half shares of KimB among the instant real estate (hereinafter “instant donation contract”) and completed the registration of transfer of ownership in the name of the Defendant with respect to the said one-half shares as the receipt ○○○○○ on January 9, 2017, based on the grounds for registration.

G. At the time of the instant donation contract, KimB had no property other than the 1/2 share out of the instant real estate. There was no dispute over recognition, and the purport of the entire pleadings and arguments as to Gap 1 through 5.

2. Determination

A. Determination on the cause of the claim

1) According to the above facts, KimB did not own any property other than the 1/2 shares out of the instant real estate at the time of the instant donation contract, and was insolvent as it bears obligations against the Plaintiff. Accordingly, the act of the insolvent KimB entering into the instant donation contract with the defendant who is the spouse, and the act of the registration of transfer of this case to the defendant is an act of reducing the creditor's joint security and detrimental to the creditor such as the plaintiff.

2) Furthermore, unless there are special circumstances, the defendant's bad faith is presumed to be a beneficiary, as long as it is recognized as the debtor, KimB's intention.

3) Therefore, the instant donation contract concluded with respect to one-half portion of the instant real estate constitutes a fraudulent act, and the Defendant is obligated to implement the registration procedure for cancellation of the instant transfer registration to KimB due to the restitution following the cancellation.

B. Judgment on the defendant's argument

1) The defendant's assertion

The defendant asserts that the real estate of this case was the defendant's proprietary property created by the defendant by raising the entire purchase fund of this case, and that only 1/2 of the 1/2 of the 1/2 of the 1/2 of the 1/2 of the 1/2 of the 1/2 shares was trusted in title to KimB in the name of trust with KimB, but KimB agreed not to be faithful to the family, and was returned through the transfer registration of this case caused by the contract of this case. Thus, the contract of this case does not constitute fraudulent act.

2) Relevant legal principles

Under Article 830(1) of the Civil Act, the property acquired by one spouse in the name of his/her sole spouse in the marriage shall be presumed to be the unique property of the nominal owner. However, in cases where the other spouse proves that he/she has actually acquired the said property by bearing the price for the said property, the presumption is reversed, and where the other spouse bears the price for the said property, it may be deemed that the other spouse has title trusted the said property to the nominal owner for convenience (see, e.g., Supreme Court Decision 2006Da79704, Apr. 26, 2007). Provided, in cases where the source of the fund to acquire real estate is indicated to be one spouse, who is not the nominal owner, the nominal owner may be presumed to have donated the fund to acquire the said real estate, so in order to reverse the presumption of unique property, the other spouse bears the price for the said real estate in fact and proves that he/she acquired the said real estate in fact, and the presumption of intangible property under the circumstance that the other spouse was the source of

(See Supreme Court Decision 2006Du8068 Decided September 25, 2008, etc.)

A) Therefore, comprehensively taking account of the overall purport of the pleadings in the statement in the health account and evidence Nos. 1 to 8 (including each number), it is difficult to find that the Defendant, who prepared the purchase price for the instant real estate and purchased it, made the purchase price for the instant real estate to KimB. However, such circumstance alone, the Defendant donated the purchase price equivalent to 1/2 shares of the instant real estate to KimB, and thereby, the said 1/2 shares exceeded the presumption that the said 1/2 shares were the unique property of KimB, and it is insufficient to find that the Defendant and KimB agreed to hold the ownership for the instant 1/2 shares and to hold the ownership for the said 1/2 shares

B) Rather, if the Defendant, as the Defendant voluntarily asserted, had the title of the said 1/2 share in the name of KimB following the marriage with KimB, deeming that not only the external relationship but also the internal relationship with KimB as well as the internal relationship with KimB was an intention to recognize it as the ownership of KimB, accords with logical and empirical rules.

C) Therefore, it is difficult to accept the Defendant’s above assertion, premised on the fact that the 1/2 share of the instant real estate was nominal trust to KimB.

3. Conclusion

If so, the plaintiff's claim of this case shall be accepted for the reasons and it is so decided as per Disposition.