The act of a donation of money to the defendant in excess of debt constitutes a fraudulent act, except in extenuating circumstances.

Of the payment of this case, the remaining 321,203,40 won shall not be recognized to have been withdrawn and used by the Defendant who is the depositor.

Article 30 of the National Tax Collection Act

Revocation of Fraudulent Act by Gwangju High Court (Seoul High Court) 2016Na12316

Korea

○ ○

March 15, 2018

April 12, 2018

1. All appeals filed by the plaintiff and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Majorly, the Defendant and AA cancel a donation or a monetary loan agreement concluded on August 16, 2013 with respect to KRW 471,40,000 between the Defendant and AA, and the Defendant shall pay to the Plaintiff 471,400,000 with 5% interest per annum from the day following the day when the judgment of this case became final to the day of full payment.

2. Preliminaryly, the Defendant shall pay to the Plaintiff the amount of KRW 471,400,000 with 5% interest per annum from August 16, 2013 to the delivery date of a copy of the instant complaint, and 15% interest per annum from the next day to the day of complete payment.

Purport of appeal

1. Plaintiff: The part of the judgment of the first instance against the Plaintiff ordering payment shall be revoked. The Defendant and AA shall revoke a donation or a monetary loan agreement concluded on August 16, 2013 with respect to KRW 321,203,40 between the Defendant and AA. The Defendant shall also pay to the Plaintiff the amount calculated by the annual rate of KRW 321,230,40 and the amount calculated at the rate of KRW 5 per annum from the day following the date the judgment of this case became final and conclusive to the day of full payment (the Plaintiff shall also be deemed to have appealed as to the conjunctive claim as it is not specially limited

2. The defendant: The part against the defendant in the judgment of the court of first instance shall be revoked. The plaintiff falling under the revoked part shall be revoked.

The claim is dismissed.

1. Basic facts

(a) Payment of real estate sales to the Defendant’s account;

1) On August 9, 2013, AA entered into a sales contract for selling 276-1 square meters (hereinafter referred to as “instant land”) at purchase price of KRW 490,000,00 for 20,000 for Park Dog-dong 276-1 square meters (hereinafter referred to as “instant land”) owned by AA.

2) AA requested BB to deposit the above purchase amount in the Defendant’s Credit Union account (Account Number hereinafter referred to as “instant account”) under the name of the ASEAN. Accordingly, on August 16, 2013, KRW 471,400,000 (hereinafter referred to as “the instant payment”) out of the above purchase amount was transferred to the instant account.

B. Plaintiff’s claim against AA

1) AA fails to pay the capital gains tax imposed by the Plaintiff from April 4, 2002 to August 16, 2013, and thus the capital gains tax in arrears is as listed in the sequence 1 to 8 below 730,393,940 as shown in the table 8 below.

In addition, on December 10, 2013, the head of the tax office under the Plaintiff’s control notified AA to pay KRW 126,048,260 of the capital gains tax imposed pursuant to the instant land sales contract, but AA did not pay the said income tax until the filing date of the instant lawsuit.

2) Meanwhile, AA paid to the Plaintiff KRW 50,00,000,000 on November 4, 2015, and KRW 30,00,00,00 on February 2, 2016, respectively, as part of the capital gains tax in arrears.

(c) criminal punishment of AA;

AA sold the instant land in the state of being subject to the disposition on default due to the failure to pay transfer income tax, and concealed the property for the purpose of evading the disposition on default by receiving the amount of KRW 471,400,000 in the instant account under the name of the Defendant, who is the ASEAN, from the account in the name of the Defendant, for the purpose of evading the disposition on default.” On the grounds of the crime, AA was convicted of having committed a crime of violating the Punishment of Tax Evaders Act, and became final and conclusive (Supreme Court Decision 00Da3000, Nov. 19, 2015; Decision 2015No000 Decided August 26, 2016)

[Reasons for Recognition] Facts without dispute, Gap 1 to 10 evidence, Eul 15 and 16 evidence (including numbers, hereinafter the same shall apply) and the purport of the whole pleadings

2. Judgment as to the main claim

A. The plaintiff's assertion

AA had a purchaser remit the instant payment to the Defendant account even in insolvency where the Plaintiff is liable for the transfer income tax. This constitutes a fraudulent act, either a donation or a monetary loan contract for the instant payment between AA and the Defendant, or a deposit owner trust contract is concluded. Therefore, the remittance of the instant payment should be revoked, and the Defendant is obliged to return to the Plaintiff KRW 471,40,000 due to its restitution.

(b)the existence of preserved claims and the insolvency of AAA;

1) According to the above basic facts, the Plaintiff has a transfer income tax claim of KRW 730,393,940 as of August 16, 2013, for which the instant payment was remitted to AA, and even if the amount paid thereafter is deducted from the above claim, there is a claim of KRW 650,393,940 (i.e., KRW 730,393,940 - 80,000), which is subject to the revocation of fraudulent act.

2) From August 16, 2013, where a transfer of the instant payment was conducted by AA, the fact that the instant payment was in excess of the obligation from August 16, 2013 to the present may be deemed either as having no dispute between the parties, or

(c) The establishment, revocation, and reinstatement of a fraudulent act;

1) Facts of recognition

The following facts or circumstances do not conflict between the parties, or are stated in Gap evidence 12, Eul evidence 12, Eul evidence 1 through 5, Eul evidence 13, 17, and 20, and each order of the court of first instance and the court of first instance to submit each financial transaction information to the 00 credit cooperatives of this court, and the order of this court to submit each such financial transaction information;

As a result of each order to submit financial transaction information to the Korean Agency and Korea Post, it may be recognized as the whole purport of the pleadings.

A) On May 25, 2012, the instant account was opened on May 25, 2012, and the seal impression of the head of the Tong is registered in the column for the employee of the head of the Tong. The names entered in the column for the withdrawal seal on each of the withdrawn money notes prepared at the time of withdrawing money from the instant account are affixed with the seal impression of the Defendant or the seal impression of the AA.

B) In the first instance court, the Defendant submitted a written response on January 22, 2015, and the Defendant was the Defendant’s father’s bank account opened and used in the Defendant’s name. Accordingly, the Plaintiff asserted that the Defendant’s above assertion was invoked in the legal brief dated January 29, 2015, and that the deposit account title trust contract was concluded with respect to the instant payment, and that it should be revoked and restored to the original state. However, it is m81 mix81. However, the legal reasoning that different arguments in relation to legal assessment of the payment of money differ from the argument regarding the method of attack, which is justified in the right to revoke the fraudulent act, and that the subject matter of lawsuit or the claim itself cannot be viewed as different (see Supreme Court Decision 2004Da10985, Mar. 25, 2005). After O. 1, the Defendant asserted that the instant account was entirely managed by AA, and that the Defendant did not directly use the instant account. The same applies to the purport that the Defendant submitted the instant account directly to the purport.

C) After the instant payment was deposited into the instant account, KRW 150,196,60 on August 27, 2013 was used to repay the Defendant’s debt to the Defendant’s 00 fisheries cooperatives. In order to secure the said loan, KRW 00,000,000,000,000 owned by the Defendant, and KRW 2,876,000,000,000,000,000 were cancelled on November 4, 2013.

D) Other payments of this case, up to December 23, 2013, most of them are transferred to or (i) the account of CCC (109,00,000,000 won in total), DD (28,60,000 won in total), EE (5,000,000 won), FF (15,000,000 won in total), Agricultural Cooperatives (17,249,848 won in total), the withdrawal of the money by check (on August 16, 2013), and the withdrawal of the money by check (on hand, the amount transferred).

A. A. A. and the Defendant’s domicile are as follows: (a) cash withdrawal (total of KRW 29,800,000) was made; (b) management expenses, urban gas charges, water supply and sewerage charges, etc.; and (c) the address of AA and the Defendant was 101,15 Dong-ro 00,000.

E) Of the above transfer counter-party, DD is the spouse of AA (the mother of the Defendant). The money transferred to 00 agricultural cooperatives is the FF’s obligation on behalf of the FF, and the FF appears to be the seat of AA. Other CCC, EE, and FF appears to be the person related to AA, such as the friendship of AA, and the Defendant asserts that the said money transferred was discharged from the obligation of AA. On the other hand, some of the deposited checks are 50,000,000 won out of the check withdrawn on August 16, 2013), FF (8,000,000 won out of the check withdrawn on September 16, 2013), and the remainder of the check is paid by the Defendant. There is no amount confirmed by the Defendant out of the check.

F) Meanwhile, the instant account balance was deposited in KRW 270,00,000 from GG on December 26, 2013 with the status of KRW 4,853,300. However, GG purchased forest land owned by the Defendant and completed the registration of ownership transfer on December 26, 2013. Thereafter, from the instant account to DD’s account on December 31, 2013, KRW 175,00,000 was transferred from December 31, 2013. Money in the instant account was used most as transfer to another account or check, and the balance as of November 28, 2015 is KRW 383,238.

2) Relevant legal principles

A) Generally, a title trust relationship generally refers to an external relationship between a trustee and his/her ownership, but in the internal relationship between a truster and a trustee, ownership is vested in the trustee and profits from the management thereof. In order for the debtor to have concluded a deposit ownership trust contract with respect to money remitted to another person’s deposit account, there must be an agreement between the debtor and the title holder of the deposit account that the debtor holds ownership of the deposit claim and proceeds from the management thereof. If it is interpreted that there exists an agreement between the debtor and the title holder of the deposit account with respect to the gratuitous donation of the money remitted as such to the title holder of the deposit account, the act of payment of the money should be deemed a donation (see Supreme Court Decision 2014Da232982, Apr. 9, 2015).

B) In order for a debtor to have concluded a donation contract with respect to money remitted to another person’s deposit account, first of all, it should be interpreted that the debtor and the account holder agree with the intent to grant the remittance amount to a third person ultimately reverted to another person. The burden of proof related thereto lies in the creditor who asserts that the remittance act is a fraudulent act subject to the obligee’s right of revocation. In the event of a transfer to another person’s deposit account, the remittance may be based on various legal grounds. Thus, inasmuch as the person having a certain personal relationship consented or understood to transfer the money to his/her own deposit account with the knowledge that he/she should transfer it to his/her own deposit account, or that he/she actually allows the person to control his/her own deposit account for such purpose, barring any other special circumstance, it cannot be readily concluded that the remitter and the account holder agree with the intent to grant the remittance amount gratuitously to the account holder, barring any special circumstance. It can be readily concluded that the bank account was established under the real name verification procedure and the account holder was established with 2016 parties to the deposit account (see, 2016).

3) Determination as to the revocation of the gift contract and the assertion of restitution

A) Recognition of fraudulent act against KRW 150,196,60

(1) Examining the above facts in light of the aforementioned legal principles, it is reasonable to view that out of the instant payments, the Defendant’s KRW 150,196,600, which was used to repay the Defendant’s debts owed to the 00 fisheries cooperatives (hereinafter “the instant payments”), was in agreement with the intent to donate the said payments to the Defendant to the Defendant ultimately reverted to the Defendant for the repayment of the Defendant’s debts. In the absence of special circumstances, the act of the Defendant’s donation of the said money in excess of the obligation constitutes a fraudulent act, barring any special circumstance

(2) However, according to the above facts, the account of this case appears to have been used by AA with a considerable amount of money excluding the key money out of the instant payment, mainly with the account managed and used by AA. In light of the legal principles as seen earlier, the evidence submitted in the case of payment of money excluding the key money is insufficient to deem that there was a mutual agreement between the maximum text ginseng and the Defendant with respect to donation to the Defendant for free, and there is no other evidence to acknowledge otherwise.

In light of the fact that the key amount of the instant payment was used to repay the Defendant’s debt, and that the sales price of forest owned by the Defendant was deposited in the instant account, the Plaintiff asserts that the instant payment was reverted to the Defendant. However, even if considering such circumstance, it is difficult to deem that the donation contract was concluded between the highest ginseng and the Defendant regarding the entire payment.

B) Judgment on the defendant's argument

(1) The Defendant asserts as follows. AA lent the key money to the Defendant, but thereafter, on December 26, 2013, the remainder of the purchase price of forest land owned by the Defendant was transferred to the instant account by the buyer to GG to the purchaser of the purchase price of forest land. The key money was to be refunded to AA by means of penalty, and thus, the part seeking its revocation is already realized, and there is no interest in protecting the rights to be secured by the instant lawsuit.

According to the above facts, 270,000 won, which GG transferred to the account of this case, appears to have been the purchase price of forest owned by the Defendant. However, in light of the following, the evidence presented alone cannot be deemed to have leased the amount to the Defendant or have returned it to the Defendant, and there is no other evidence to acknowledge otherwise. ① The amount of money transferred by GG to the account of this case is inconsistent with the amount. ② The Defendant is 175,00,000,00 won, which was transferred to DD on December 31, 2013, 120,000 won, 120,000 won, 20,000 won, 120,000 won, 20,000 won, 20,000 won, 20,000 won, 30,000 won, 20,000 won, 20,000 won, 20,000 won, 30,00, 200,000.

Therefore, the defendant's above assertion is not accepted.

(2) In other words, the defendant asserts that the payment of this case was concealed in the account of this case as if he was punished as a violation of the Punishment of Tax Evaders Act, but not donated to the defendant, and that the act of remitting the payment of this case to the account of this case does not constitute a juristic act by the debtor subject to the revocation of

However, it does not mean that the transfer of the instant payment to the instant account does not constitute a gift merely because it constitutes a concealment. Furthermore, in light of the fact that a debtor’s juristic act is subject to revocation’s right of revocation even when it is a false conspiracy (see Supreme Court Decision 97Da50985, Feb. 27, 1998), the Defendant’s above assertion is difficult to accept.

(3) The defendant asserts that since the account of this case was used by AA, the defendant did not know the fact that the payment of this case was deposited in the account of this case, the defendant cannot be viewed as the beneficiary of bad faith merely because the purchase price of the best ginseng was deposited in the account of this case.

However, in a lawsuit seeking revocation of a fraudulent act, the beneficiary’s bad faith is presumed to have been presumed, and thus, the beneficiary is responsible for proving his/her good faith. In recognizing that the beneficiary was bona fide at the time of the fraudulent act, evidence should be objectively and objectively obtained, and the beneficiary should not be readily concluded that the beneficiary was bona fide at the time of the fraudulent act (see, e.g., Supreme Court Decisions 2004Da61280, Jul. 4, 2006; 2015Da48467, Dec. 24, 2015). According to the evidence evidence No. 10, AA stated that “The purchase price under investigation by the National Tax Service at the time of the above criminal punishment was known to the Defendant that it was entered into the account in this case, and that it was remitted to various necessary places.” Moreover, the Defendant asserted that it was insufficient to recognize that it was a bona fide beneficiary’s domicile as well as that it was presented by the Defendant.

(C) cancellation and reinstatement;

AA’s agreement on donation with respect to KRW 150,196,60 of the instant amount paid in excess of debt is a fraudulent act, and thus a contract should be revoked. The Defendant, a beneficiary, is obligated to pay to the Plaintiff the amount of KRW 150,196,600 with respect to the restitution of the said amount and damages for delay calculated at the rate of 5% per annum from the day following the date the judgment of this case becomes final and conclusive to the date

4) Determination as to the assertion of cancellation of a monetary loan agreement and restitution

The Plaintiff asserts that the monetary loan contract for the instant payment was concluded on the basis of the statements (Evidence A 10) made by AA after being investigated at the time of the said criminal punishment. However, the statement of the lowest ginseng, which can be known by the statement of No. 10, was borrowed from the Defendant on June 17, 2013, before receiving the instant payment, and acquired the instant land, and subsequently repaid the amount with the instant payment. Therefore, it is insufficient to prove that the statement of No. 10 was sufficient to be proven that AA lent the instant payment to the Defendant, and even if other evidence were presented, it is insufficient to recognize that AA lent the instant payment to the Defendant, and there is no other evidence to acknowledge this otherwise. The Plaintiff’s above assertion is rejected.

5) Determination on the assertion on the title trust agreement of deposit holders

A) In full view of the following facts revealed by the above facts, it can be deemed that a deposit account title trust agreement was concluded between AA and the Defendant with respect to the instant account.

① The Defendant was the person, and it can be deemed that the confession was established by the Plaintiff’s recourse. There is no reason to deem that the confession was revoked, and there is no evidence to recognize that it was caused by mistake (only the Defendant asserts that it was a question whether the contract was established through a preparatory document submitted on December 5, 2017 at the trial).

② Even if not, the Defendant himself/herself recognized that the instant account was managed and used by AA. Even if some of the instant payments was paid for the cost of living expenses, such as apartment management expenses, the Defendant’s father, considered that the said expenses were paid by AA in view of the fact that the Defendant had the same domicile as his/her father. Even in the case of money withdrawn by a check or withdrawn in cash, if the seal impression used in withdrawing money from the instant account is deemed to have been used by AA, it is highly probable that AA was used. Furthermore, the Defendant recognized that AA voluntarily used the said money as its principal’s debt repayment, etc.

B) Although a insolvent AA had the Defendant remit the sales price of the instant land into the instant account, it could be demanded by the AA to return it to the Defendant, the right to claim the return belongs to the Defendant in external relations with the financial institutions or third parties, and thus, the right to claim the return belongs to the Defendant. Therefore, it may constitute a fraudulent act reducing the liability property of the AA in relation to the general creditor.

However, if a deposit account holder's title trust contract is revoked as it constitutes a fraudulent act, restitution following cancellation was made by the account holder to withdraw and use the deposit in the deposit account or terminated the deposit account.

Unless there are special circumstances such as special circumstances, a person who made a deposit claim against a financial institution shall be the contributor.

In addition, transfer should be made by ordering financial institutions to give notice of transfer.

Supreme Court Decision 2014Da212438 Decided July 23, 2015 (Supreme Court Decision 2014Da212438).

C) With respect to the remainder of KRW 321,20,40 (i.e., KRW 471,40,000 - KRW 150,196,600), the submitted evidence alone is insufficient to acknowledge special circumstances, such as the withdrawal and use of the deposited money by the deposited owner, and there is no other evidence to acknowledge otherwise. Rather, according to the above acknowledged facts, it appears that the deposited money was used by AA, such as transfer of considerable amount to the related parties of AAA. Thus, even if the deposited money deposited trust agreement on the instant payment was revoked as it constitutes a fraudulent act, it is difficult to view that the Defendant is obligated to pay KRW 321,203,40 to its original state in light of the legal principles as seen earlier. Accordingly, it is difficult to accept the Plaintiff’s claim for reimbursement of KRW 321,203,400 as compensation for restitution.

[On the other hand, the defendant asserts that there is no benefit in the protection of rights, since AA had already been returned the deposit from the defendant using all of the payment in this case, the part that seeks the cancellation of the title trust agreement for deposit holders and restitution to the original state is that there is no benefit in the protection of rights. However, as seen earlier, it is difficult to view that all of the payment in this case was returned to the highest third party.

3. Judgment on the conjunctive claim

The reasons why this Court is stated in this part of the judgment of the court of first instance shall be the corresponding part (8 pages 7 to 9 pages 8

(A) Since it is identical to the statement, it is acceptable to accept it in accordance with the main sentence of Article 420 of the Civil Procedure Act.

4. Conclusion

The plaintiff's primary claim is reasonable within the scope of the above recognition, and the remainder is accepted.

The primary claim and the conjunctive claim shall be dismissed in entirety without any justifiable reasons. The judgment of the first instance court shall be dismissed.

The plaintiff and the defendant's appeal are dismissed for the reason that the plaintiff and the defendant's appeal are justified.

(c)