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(영문) 서울중앙지방법원 2012. 11. 09. 선고 2012가단5019782 판결
채무자의 무자력을 판단함에 있어 채권은 용이하게 변제를 받을 수 있는 경우에 한하여 적극재산에 포함시킴[국승]
Title

in determining the debtor's insolvency, such claims shall be included in active property only if the claims can be easily repaid.

Summary

In a creditor's insolvency suit, any property which has no substantial property value and cannot serve as a joint security for claims shall be excluded. If the property is a claim, it shall be included in active property only if it is certain that it can be easily repaid.

Related statutes

Article 30 of the National Tax Collection Act

Cases

2012 Ghana 5019782 Revocation of Fraudulent Act

Plaintiff

Korea

Defendant

KimAA et al.

Conclusion of Pleadings

October 26, 2012

Imposition of Judgment

November 9, 2012

Text

1. With respect to real estate listed in Appendix 1, and

A. The sales contract concluded on August 5, 2010 between Defendant KimA and Nonparty LCC was revoked, and the sales contract was revoked.

B. Defendant KimA shall implement the procedure for registration of cancellation of ownership transfer registration with the Plaintiff, which was completed on August 16, 2010 by the 10331 received on August 16, 2010.

2.As to Annex 2. As to the parts in Annex 2. The parts in Annex 2, and

A. Upon cancelling the sales contract concluded on August 6, 2010 between Defendant LCC and Nonparty LCC, the sales contract was canceled, and

B. Defendant LACC shall implement the procedure for registration of cancellation of ownership transfer registration with the Plaintiff, which was completed on August 24, 2010 by the receipt of No. 35323 on August 24, 2010.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Basic facts

A. Nonparty 2: (a) Nonparty 1 did not report the transfer income tax after transferring the 1763mm2 in both documents of OOri 000 in each real estate form, which was owned by Nonparty 2, on January 25, 2010; (b) Nonparty 2 notified the following transfer income tax by the due date for payment on March 31, 201; and (c) was unpaid until now.

B. On August 5, 2010, Defendant KimA entered into a sales contract with the above lowestCC on the real estate listed in Annex 1, and completed the registration of ownership transfer listed in Annex 1, and Defendant LCC entered into a sales contract with the above largestCC on August 6, 2010, and completed the registration of ownership transfer listed in Annex 2 on the ground of Annex 2, 01.

C. On August 5, 2010 and August 6, 2010, the real estate listed in the separate sheet is one of the real estate owned by the above largestCC, and the sale price was 00 won as the active property of the largestCC, but the other real estate listed in the separate sheet was disposed of, and the above highestCC is ultimately a situation where the Plaintiff’s taxation claim exceeds its liabilities.

(d) Defendant KimA is the wife of the above maximumCC, and is the co-oper of Defendant ChoiCC.

[Reasons for Recognition: Facts without dispute, Gap evidence Nos. 1 through 4 (including household numbers), and the result of inquiry into the KK Hotel T&D (States), and the purport of the whole pleadings]

2. Determination

The above maximumCC concluded a sales contract with the Defendants on each of the real estate listed in the separate list, which is its sole real estate, thereby causing excess of its obligation, constitutes fraudulent act. It is presumed that the above maximumCC expressed its intent to prejudice creditors, and that the Defendants’ bad faith, which is the beneficiaries, was presumed. The Defendants, and the above maximumCC owned around August 2010, include 1,058 and 000 shares of the Preferred Stock Company (amount of 00 won, total amount of 00 won, and 00 won) in the largestCC’s active property, and it is argued that the Defendants were not insolvent at the time, and that it did not have any real property value in determining the debtor’s insolvency, and that it does not constitute a fraudulent act. In light of the above, it is reasonable that the Defendants did not have any other property value, and that it did not have any more than 20 years since its purchase of the assets, and that it did not include 301 years or more, and that it did not have any more than 201.

3. Conclusion

Then, the plaintiff's claim against the defendants in this case is well-grounded, and it is so decided as per Disposition.

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