Seoul Central District Court 2008Kadan75674 ( August 19, 2008)

title trust of the sole real estate share constitutes a fraudulent act

The fact that the title trust of the instant real estate shares to be acquired as its sole property at the time was made in a state in which it was impossible to fully repay the shares solely with the real property is a fraudulent act in relation to the creditors including the plaintiff.

The contents of the decision shall be the same as attached.

Article 30 of the National Tax Collection Act

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

A. The primary purport of the claim

The title trust agreement concluded on February 26, 2007 with respect to each real estate share in the separate sheet (multi-household house and 1/2 share in each of 1/2 of 5 households of apartment house, hereinafter the instant real estate share) between the defendant and Doz. shall be revoked within the limit of 44,870,440 won.

The defendant shall pay to the plaintiff 4,870,440 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

B. Preliminary purport of claim

A donation contract concluded on February 26, 2007 with respect to the instant real estate share between the Defendant and ○○ shall be revoked to the extent of KRW 44,870,440.

The defendant shall pay to the plaintiff 4,870,440 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Facts of recognition;

A. From December 21, 2006 to January 5, 2007, the Plaintiff’s organization found that the report of KRW 44,870,440 on non-business interest through money lending was omitted through a tax investigation from January 21, 2006 to January 5, 2007, and notified ○○ as of May 1, 2007.

B. From February 22, 2007, ○○, who was insolvent at the time, had changed the agreed date to June 22, 2007, and had been transferred the ownership of the instant real estate in accord with the payment for the loan claim of KRW 280 million and the bond of KRW 108 million and the bond of KRW 290,80,000,000,000 and KRW 2908,000,000,000,000,000,000,000,000 won. However, without the registration titleholder, the registration titleholder was to obtain the

C. Accordingly, on February 26, 2007, ○○ entered into a contract with the Defendant to title trust the instant real estate shares to the Defendant (hereinafter “title trust agreement”). On February 27, 2007, the following day, he directly completed the registration of ownership transfer on the instant real estate shares to the Defendant (at the same time, the instant real estate shares were transferred to the Defendant, and at the same time the ownership transfer registration was made in both 1/2 shares in both ○○ and the remainder 1/2 shares were transferred) and thereafter, the instant real estate shares were sold to a third party with the shares in both ○○ and the registration of ownership transfer was completed.

D. From KRW 404,950,000 of the purchase price of the instant real estate shares sold by the Defendant to a third party, the amount of KRW 185,00,000,000, which is recognized as preferential payment right as to the instant real estate shares, and KRW 161,515,00,000 would remain if the Defendant deducts KRW 58,435,00 from the purchase price of the instant real estate shares.

[Ground of recognition] Unsatisfy, Gap's statements (including each number), Gap's witness and witness of the first instance court, the whole purport of the pleading

2. Determination

A. Establishment of fraudulent act

The debtor who has already been in excess of his/her obligation and has title trust his/her active property to a third party and has aggravated the ability of repayment to the general creditors is a fraudulent act in relation to the creditors unless there are special circumstances.

According to the above facts, it was known that ○○, a debtor, had already been investigated about the default of national taxes at the tax office prior to the Park ○ case and the accord and satisfaction agreement ( February 22, 2007), and the tax amount would be notified. Even if other creditors had been liable for a large amount of debt to other creditors, and the active property cannot be fully repaid, but the ownership of the instant real estate, which would be acquired as the only property at the time, was trusted in trust to the Defendant, a beneficiary, constitutes a fraudulent act in relation to the creditors including the Plaintiff, and the intention of ○○ and the defendant's bad faith is presumed.

B. Judgment on the defendant's argument

(1) The Defendant asserts that the disposition imposing global income tax on the portion other than the interest income that ○○ is to revert to ○○○ upon adding up his own money and the money borrowed from ○○○○, Red○, and ○○○○○○○○, even though ○○ loaned the money to ○○○, the imposition of global income tax on the loan was clearly and important and invalid.

If the testimony of the witness at the court of first instance added the purpose of the entire argument, it is recognized that the ○○ constitutes money borrowed from the ○○○, Red○, and Long-term, in addition to his money, at the time of lending money to ○○○○.

However, since the creditors of the whole portion of the loan to Park ○-il are still ○○, the entire interest income from the non-business loan shall belong to the ○○○, and there is no evidence to prove otherwise that the above taxation disposition by the Plaintiff is obvious and important defects and that the above argument by the Defendant is invalid, it is not acceptable.

(2) The Defendant asserts that the instant title trust agreement cannot be deemed a fraudulent act, on the ground that: (a) the instant real estate share was acquired under the instant title trust agreement and sold the instant real estate share to a third party; and (b) instead, the instant real estate share did not gain any profit, thereby causing damage to KRW 55,3

As recognized earlier, the joint security for general creditors, including the Plaintiff, who is insolvent at the time due to the instant title trust agreement, becomes more deficient due to the instant title trust agreement. As such, even if the instant title trust agreement and the instant real estate agreement were incurred as a result of the settlement of accounts due to the sale of the instant real estate shares, as alleged by the Defendant, it cannot be deemed that the instant title trust agreement becomes a fraudulent act, and thus, the Defendant’s assertion is rejected.

(c) Revocation of fraudulent act and reinstatement;

Even if the title trust contract of this case is revoked, since the ownership of the share in the secondary association of this case has already been transferred to a third party in around 2007, and it is impossible to return the original property, it cannot be ordered to restore the original property by means of value compensation.

As seen earlier, if the amount of claims is deducted from the secured value of the share in the instant real estate around 2007, the secured value of the general claim is KRW 161,515,000, namely, the security value of the general claim is the same amount until December 5, 2008, which is the closing date of pleadings in the instant case. This exceeds the Plaintiff’s gross income and the amount of the secured claim amount of the instant secured claim exceeds KRW 44,870,440.

In regard to this, the defendant's above 1. D. claim 8,633,650 won (17,267,300 won/2)'s obligation for expenses for ownership transfer registration, 42,500 won (85,000,000 won/2)'s obligation to an auction creditor Kim ○, and 50,000 won's obligation to Red ○○, and 30,000,000 won's obligation to Red ○○, and 0,000 won's obligation to ○○, 024,00 ○○, 1024,000,000 won, and 0,000 won's obligation to ○○○, 1611,000 ○○,65,000 won (hereinafter referred to as "○○,611,000 won"), the defendant's assertion that the above amount's obligation to be deducted can not be considered as 851,515,0575,00.

Therefore, the title trust agreement of this case concluded between ○○ and the beneficiary, which is the debtor, shall be revoked within the limit of 44,870,440 won, and the defendant shall be obliged to pay to the plaintiff 44,870,440 won and damages for delay at the rate of 5% per annum from the day following the day when the judgment became final and conclusive to the day when the payment is made.

3. Conclusion

If so, the plaintiff's primary claim of this case is justified, and the judgment of the court of first instance with the same conclusion is just, and the defendant's appeal is dismissed as it is without merit.

2.

1. Basic facts

A. Plaintiff’s taxation claim establishment

1) The non-party spouse, the defendant's spouse, is the non-party ○○○○○○○○○○○○○ on the first floor above one parcel of land, ○○○-dong, Seoul, ○○○-dong, 366-○, and one other (hereinafter referred to as the "electronic amusement room of this case") who operated the electronic amusement room service business from November 24, 2004 to September 12, 2006.

2) On January 25, 2006, Seo-○ filed a return of KRW 12,545,455 for the second term of February 2005, and KRW 9,147,280 for the first term of January 25, 2006, to the head of Dongjak-gu Tax Office under his jurisdiction, respectively, as value-added tax on the sales of the instant electronic amusement room.

3) From December 7, 2006 to December 29, 2006, the head of Dongjak Tax Office conducted a general investigation of value-added tax on the entertainment room in this case. Based on the sales converted from merchandise coupon purchase data, he issued a notice of imposition of value-added tax amounting to KRW 693,779,904 for the second period in 2005 pursuant to Article 21(1) of the Value-Added Tax Act, and KRW 503,827,751 for the first period in 2006, and issued a notice of imposition of value-added tax amounting to KRW 69,864,234 for the second period in 205 and value-added tax amounting to KRW 48,451,706 for the first period in 2006.

4) On May 31, 2007, the head of Dongjak-gu Tax Office notified the payment of KRW 119,19,198,540 in total of the value-added tax (i.e., KRW 70,375,720 in total) + KRW 48,822,820 in total at the time of the filing of the instant lawsuit, and the said principal and additional charges were not paid until August 8, 2008, and the sum of the principal and additional charges was reached to KRW 142,79,670 in total (hereinafter “instant tax claim”) until August 8, 2008 as follows.

B. The circumstances leading up to the Defendant’s acquisition of each of the instant real estate from a forest establishment

1) In the course of construction of new houses, etc., the non-party 1 contracted the construction of the mold to Seo-gu and Seo-gu, but did not pay the price. In addition, the non-party 1 was unable to repay the borrowed money from Seo-gu. On April 19, 2005, the non-party 1 and the non-party 18,000,000 won of maximum debt amount with respect to the above-mentioned building (hereinafter the pertinent real estate) with Seo-gu, Seoul, ○○○-dong, 255-○○ and 268 square meters and above-ground buildings (hereinafter the instant mortgage contract) were concluded between Seo-gu and Seo-gu, Seoul, Seoul, District Court No. 36702, Aug. 8, 2005, the registration of the establishment of a mortgage contract was made on the ground of the above mortgage contract with the registration office No. 36702, May 15, 2006.

2) However, since YO was unable to repay the above debt, YO was to sell each of the instant real property to the Defendant at KRW 296 million on September 23, 2006 (the sales contract is stated as KRW 3.3.5 million). The payment of KRW 168 million among them shall be substituted by extinguishing the secured debt of the instant mortgage against YOOO, and the payment of KRW 1220 million shall be made by YOOO on October 1, 2004 with a maximum debt of KRW 156 million on the secured debt of the non-party 1,000,000,000 to the non-party 1,56,000 won on the non-party 1, 2004, instead of taking over the secured debt of the maximum debt of KRW 3.8 million on the non-party 1,500,000,000 on the instant real property. The Defendant drafted a sales contract and the agreement on the instant real property.

3) On October 12, 2006, on the ground of the above sale, 006, YO had completed the registration of ownership transfer for the Defendant, and Seo-gu cancelled the registration of establishment of a collateral security on November 24, 2006. On January 8, 2007, the Defendant completed the registration of establishment of a collateral security on the ground of the acceptance of a contract to establish a collateral security with the Young Central Saemaul Treasury.

[Grounds for Recognition: Each entry in Gap evidence Nos. 1, 4, 5, 7, 8, 9 (including each number), and the purport of the whole pleadings]

2. Determination on the revocation of fraudulent act and the claim for restitution

A. Formation of preserved claims

우선, 원고의 소외 서○주에 대한 이 사건 조세채권이 이 사건 사해행위 취소청구의 피보전채권이 될 수 있는지에 관하여 보건대, 이 사건 조세채권의 납부의무는 구 국세기본법 제21조 제1항 제7호(2007.12.31. 법률 제8830호로 개정되기 이전의 것)에 \ue3e5라 과세기간이 종료하는 때인 2005.12.31.(2005.2기), 2006.6.30.(2006.2.기) 성립하였고, 워니고가 주장하는 사해행위의 시점인 2006.9.23. 이 위 조세채권의 성립시기보다 이후임이 역수상 명백하므로, 이 사건 조세채권은 사해행Ÿž 취소의 피보전채권이 된다고 할 것이다.

(b) Revocation of fraudulent act and duty to reinstate;

1) According to the facts acknowledged earlier, since the defendant's agreement between the non-party ○○ and the non-party 1's third party's share purchase of the real estate in the process of purchasing the real estate from the non-party 1's non-party 1's non-party 1's non-party 1's non-party 2's non-party 1's non-party 1's non-party 2's non-party 3's non-party 1's non-party 2's non-party 3's non-party 1's non-party 2's non-party 1's non-party 3's non-party 1's non-party 2's non-party 1's non-party 1's non-party 1's non-party 3's non-party 1's non-party 2's non-party 1's non-party 3's non-party 1's non-party 1's non-party 1's non-party 3's non-party 1'.

2) As to this, the Defendant asserted to the effect that the taxation claim of this case was established at the time of the donation of this case, and thus, it was bona fide. However, there is no evidence to prove that the Defendant was bona fide. Therefore, the Defendant’s above assertion is without merit.

(c) Scope of revocation of fraudulent act and reinstatement;

When a creditor exercises his/her right of revocation, in principle, he/she cannot exercise his/her right of revocation in excess of his/her own claim amount, and at this time, the creditor's claim amount includes interest or delay damages incurred after the fraudulent act and until the closing of argument in fact-finding proceedings (see, e.g., Supreme Court Decisions 2000Da66416, Sept. 4, 2001; 2003Da19572, Jul. 11, 2003). Meanwhile, additional dues and increased additional dues under Articles 21 and 22 of the National Tax Collection Act are a kind of incidental tax imposed in the meaning of interest on the unpaid portion if national taxes are not paid by the due date for payment, and if national taxes are not paid by the due date for payment without the due date for payment without the due date for determination of the right of taxation, they are naturally generated pursuant to Articles 21 and 22 of the same Act, and the amount thereof is determined (see, e.g., Supreme Court Decision

According to the facts established earlier, since the total sum of the principal and additional charges of the instant taxation claim at the time of filing the instant lawsuit is KRW 142,79,670,000,000,000,000,0000,0000,0000,0000 as the gift amount of this case, as the Plaintiff seeks, the instant donation contract should be revoked within the extent of KRW 142,79,670,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,0000,000,000,000,000,000,000,000,00,000,000,00).

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.