Seoul Northern District Court 2016Ka122406 ( December 29, 2016)

Revocation of Fraudulent Act

(As in the judgment of the court of first instance) The plaintiff's claim in this case seeking the return of originals due to the revocation of fraudulent act and the subsequent restitution is legitimate.

Article 47 of the National Tax Collection Act: Effect of Attachment of Real Estate

Seoul Northern District Court 2017Na30727 Revocation of Fraudulent Act

Korea

Jeonju, Jeon Sejong Sejong Sho, Ho Ho o

Suwon District Court 2016Gadan122406 ( December 29, 2016)

8.22

2017.9.26

1. The defendant's appeal is dismissed.

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

1. Purport of claim

On July 23, 2014, the agreement between the defendant and Ea on the termination of the title trust concluded on July 23, 2014 is revoked, and the defendant will implement the procedure for the cancellation registration of the transfer of ownership completed on July 24, 2014 by the Seoul Northern District Court's Dobong registry office (Seoul Northern District Court Decision 47598).

2. Purport of appeal

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

The same shall apply to the order.

1. Basic facts

A. On June 19, 2014, the Director of the jj Tax Office of the Plaintiff’s jp (hereinafter “instant tax claim”) notified Ea of the additional global income tax of KRW 103,902,940 (hereinafter “instant tax claim”) for the year 2009 and imposed and notified it on September 1, 2014, but Ea is in arrears.

B. Isa on July 24, 2014, the real estate stated in the separate sheet (hereinafter referred to as “instant real estate”) to the Defendant.

On July 23, 2014, on the ground of the title trust termination agreement (hereinafter referred to as the "title trust termination agreement of this case"), the registration of ownership transfer (hereinafter referred to as the "registration of ownership transfer of this case") was completed as stated in the purport of the claim.

C. While Isa owned the instant real property equivalent to KRW 123 million as active property at the time of the registration of transfer of ownership in this case, it was in excess of the obligation on the ground that it bears the instant tax liability of KRW 103,902,840 as passive property, KRW 70 million as to the instant agricultural cooperative, KRW 14,160,90 as to the obligation to the Seoul Metropolitan Government Zz Corporation, KRW 14,160,90 as to the Seoul Metropolitan Government zz Corporation, and KRW 7 million as to the obligation to the Bank.

[Ground of Recognition] Facts without dispute, entry of Gap evidence 1 to 6, 11 (including partial number), the purport of the whole pleadings.

2. Summary of the assertion

A. The plaintiff

In order to avoid debt collection from creditors in excess of debt, thisa establishes a defendant with his father's lineal family members as to the real estate in this case and completes the registration of transfer of ownership in the name of the defendant on the ground of false title trust and termination thereof. This shall be revoked as a fraudulent act to evade debt, and the defendant shall be obliged to implement the procedure for cancellation of transfer of ownership registration of this case to thisa by restitution to its original state.

B. Defendant

The defendant is a clan whose member is Lees' lineal descendants, and the real estate of this case was trusted in title to Leesa, which is the defendant's clan. Accordingly, the real estate of this case is not a responsible property for the general creditors of Leesa, and therefore, the title truster's agreement to terminate the title trust of this case for the recovery of ownership does not constitute a fraudulent act.

3. Determination

A. Formation of preserved claims

According to Article 21(1)1 of the Framework Act on National Taxes, the obligation to pay income tax is naturally established without any separate act of the tax authority or the taxpayer when the taxable period expires, and furthermore, pursuant to Article 5(1) of the Income Tax Act, the taxable period of income tax is from January 1 to December 31, 200. With respect to this case, health class and the Plaintiff’s global income tax claim against Ea in 2009 was established on December 31, 2009, which is the end of the taxable period. Since the instant title trust termination agreement was concluded on July 23, 2014, the instant tax claim becomes the preserved claim of the obligee’s right of revocation.

(b) The intention to commit fraudulent acts and to injure himself;

1) A debtor's juristic act becomes subject to creditor's right of revocation even in a case where the debtor's legal act is a false conspiracy. On the other hand, even a debtor's juristic act subject to creditor's right of revocation shall be null and void if it satisfies the requirements of false conspiracy (see, e.g., Supreme Court Decision 97Da50985, Feb.

2) In light of the following circumstances acknowledged by comprehensively considering the purport of the entire pleadings in each statement stated in Gap's 3, 6, and 10 and Eul's 6 through 8 (including partial numbers), the instant agreement on the termination of title trust constitutes a false representation that Leea, who was in a state of excess of his/her obligation, conspired with the defendant for the purpose of evading his/her obligation, constitutes a false representation that the title trust and the termination thereof was the most agreed upon by the defendant's organization. In order to remove the appearance of the ownership transfer caused by such false representation of agreement, such false representation constitutes a juristic act subject to revocation by the creditor, and the defendant's malicious intent is presumed

① A clan within its unique meaning does not require a special organization as a naturally created family member for the purpose of protecting the graves of a common ancestor and promoting friendship among its members, but a descendants sharing the same family with a common ancestor and its family members naturally become its members when they reach majority without distinction of gender (see, e.g., Supreme Court en banc Decision 2002Da13850, Jul. 21, 2005).

However, the defendant made the establishment rules of July 21, 2014 and made the Leessss (Death on December 9, 2007) as a clan member with three adult male of Lees, three descendants of Leesa, two minor male of Lee ggg, and two male of Leeh who are minors of Leesh, the defendant cannot be viewed as having its original meaning, and the defendant was established only through the above organization activity. Since Leesa acquired the ownership title of the real estate of this case as of August 26, 2004, and September 29, 2008, the defendant did not exist as of September 29, 2008, the defendant's assertion that Lees entrusted the real estate of this case to Leesa is without merit.

② As acquired the ownership of the instant real estate on February 5, 1997, but completed the registration of ownership transfer on the grounds of each of 1/2 equity donation to Isa and Isd on August 26, 2004. Aa completed the registration of ownership transfer on September 29, 2008 with respect to Ed's share 1/2 as to Ed's share 1/2 as of September 29, 2008. Thus, there is no evidence to acknowledge that Ea's title is due to the title trust, unlike the entry of the grounds for registration in the above register.

③ A. On June 19, 2014, the Defendant was scheduled to collect delinquent taxes on the instant real estate upon receipt of the notice of pre-announcement of taxation on the instant taxation claim, and the Defendant was established on July 21, 2014 after 7 years from the death of Ess and was established on July 21, 2014. The Defendant’s assertion that Es and Es were established on the behalf of Es and it is difficult to obtain the Defendant’s assertion. The Defendant completed the registration of ownership transfer of the instant real estate on the ground of the instant termination agreement with Es and Es immediately after the establishment. In light of the above, the Defendant appears to have been established for the purpose of evading obligations of Es and it is difficult to view that the evidence submitted by the Defendant alone satisfies the substance of Es and performs its independent

3) Therefore, the instant termination agreement concluded between the Defendant and Aa should be revoked as a fraudulent act, and the Defendant is obligated to implement the procedure for the registration of cancellation of ownership transfer registration of this case to Ea with the restoration to its original state.

3. Conclusion

If so, all of the plaintiff's claims shall be accepted with due reason, and the judgment of the court of first instance shall be accepted.

As such, the defendant's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.