Seoul Central District Court 2012 Gohap508666 ( December 27, 2012)

a fraudulent act of selling real property, the sole responsible property of which is to reduce tax liabilities.

(1) The act of a tax obligor entering into a real estate sales contract, which is substantially the only responsible property between the Defendant and the Defendant, constitutes a fraudulent act as a means of reducing joint security with other creditors, including the Plaintiff, and is presumed to have intention to commit suicide and the Defendant's bad faith.

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

2012Na8381 Revocation of Fraudulent Act

Korea

The AA

Seoul Central District Court Decision 2012Gahap508666 Decided September 27, 2012

May 31, 2013

August 16, 2013

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The sales contract concluded on July 7, 201 with respect to real estate listed in the separate sheet between the defendant and KimB (OO-OOOOO) shall be revoked within the limit of OOO. The defendant shall pay to the plaintiff 5% interest per annum from the day following the day when the judgment of this case becomes final to the day when full payment is complete.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Facts of recognition;

(a) Formation of a preserved claim;

"The director of the tax office, etc. under the Plaintiff-affiliated station, etc. notifies KimB of the payment period of the comprehensive real estate holding tax for the year 2006, the payment period of February 28, 2007, the OOOOOOOO of the comprehensive real estate holding tax for the year 2007, the payment period of April 15, 2008, and the OOOOO of the 1687 CCC apartment 102, 805 (hereinafter "the above CCC apartment") of the transfer income tax for the 1687 CCC apartment 102, 805 (hereinafter "the above CCC apartment"), while KimB notified the OOOOO on April 2, 2010.

"1) On July 16, 199, KimB acquired No. 302 on the third floor of O2, 1686-4, O2, 1686-4, O2, 1999, OB, and completed the registration of establishment of a neighboring mortgage on the Industrial Bank of Korea as the maximum debt amount OOOO in March 31, 2006. However, upon the application of the Industrial Bank of Korea, on January 23, 2007, Seoul Central District Court 2007ta2481 (hereinafter referred to as the "the auction of this case"), the sale contract of this case was concluded with the defendant on the 30th unit of real estate (hereinafter referred to as "the real estate of this case"), and the sale sale contract of this case was concluded with the defendant on the 17th unit of O2, 201, which was the only sale contract of this case's real estate of this case.

* These articles are special articles in progress of auction, and they are agreed as follows:

1. The buyer shall pay the remainder to the seller, except for the remainder of the purchase cost, such as the maximum debt amount and the cost of the auction, the creditor who has requested the auction at the cost of the auction, the creditor who has requested the auction at the Seocho-gu office, and the cost of the auction at the cost of the demand for distribution, and the cost of the purchase at the cost of the purchase at the Seocho-gu office.

2. The parties to the sale and purchase are aware of the fact that the defects of the above real estate, other than the above Paragraph 1, are removed from all without dividends in the process of auction.

3. Since the Supreme Court’s final judgment became final and conclusive that the part attached to the PP and PP from among the defects in the foregoing article was invalid, the parties to the transaction need not raise any question.

4. If the buyer wishes to own the said article fully, he shall transfer the ownership, suspend the auction by depositing the maximum debt amount of the creditor who requested the auction with the deposit of the maximum debt amount, proceed with the procedure for cancellation of the collateral, and the purchaser shall proceed with the procedure for cancellation of the collateral.

5. Both parties to a transaction shall not raise any objection to each other, such as the defects in sale as a security after the transaction; and

6. If the buyer owns the goods, the buyer is finally liable for the lien.

C. Distribution of the proceeds from the sale of the instant real estate

1) Meanwhile, on July 7, 2011, the instant real estate was awarded to the highest bidder NaE in the instant auction procedure on the same day as the date of the conclusion of the instant sales contract, and NaE completed the registration of ownership transfer for reasons of sale due to voluntary auction under Article 40163 of the Seoul Central District Court’s receipt of the instant real estate on August 5, 201.

"2) On September 1, 201, the Seoul Central District Court: (a) filed a distribution schedule of the first dividend amount of the 2000 OOOG, which is the actual amount to be distributed at the instant auction procedure; (b) the first dividend amount of the 20OOOOOO to the Plaintiff; (c) the third dividend amount of the 200OOOOOOOOO won to the Seocho-gu, the transferee of the Industrial Bank of Korea; (d) the third dividend amount of the 3th distribution amount to the Plaintiff; (c) the third dividend amount of the 20OOOOG; (d) the third dividend amount of the 200OOOG; (e) the 2010OOOG judgment against the Defendant; (e) the Seocho-gu Seoul Central District Court rendered a final judgment against the Plaintiff on September 11, 201; (e) the 2010OOG judgment against the Defendant; (e) the 2010GG judgment against the Defendants 2167.

4) On April 30, 2013, the Defendant received the KRW OO of the deposit money after deducting taxes, etc. from the total sum of the dividend amount of the judgment rendered in favor of the said lawsuit of demurrer against distribution and the interest thereon.

Facts that there is no dispute over the basis of recognition, Gap evidence 1 through 7, Eul evidence 2 (including branch numbers, hereinafter the same shall apply), and the purport of the whole pleadings

2. Whether the fraudulent act is constituted;

A. Whether the instant sales contract constitutes a fraudulent act

1) For a debtor’s legal act to be a fraudulent act against a creditor, the debtor’s joint security should not be fully satisfied as the debtor’s legal act reduces the debtor’s liability property due to the debtor’s legal act, and there is a shortage of common security for general creditors or a lack of common security already in shortage. Therefore, whether KimB’s obligation exceeds or is insolvent due to the instant sales contract is examined.

2) In addition to the statement in Gap evidence No. 8, it can be acknowledged that the value of the instant real estate was an OOO member at the time of the instant sales contract and was the only responsible property of KimB, and the entries in Eul evidence Nos. 1, 10, and 12 alone are insufficient to reverse the fact of recognition and there is no other counter-proof.

3) However, if a primary debtor or a third party’s right to preferential payment has been established on the real estate owned by the creditor in the future, the debtor’s act of disposal of the property does not infringe the creditor, and thus, the creditor’s right of revocation is recognized only for the remaining amount of the claim, which has been deducted from the amount of preferential payment from the security (see Supreme Court Decision 2000Da63912, Apr. 12, 2002). In a case where the creditor has a real security interest in the property owned by the primary debtor or a third party, he/she shall be excluded from the debtor’s small property to the extent that he/she can obtain preferential payment from the debtor’s property, as well as from the debtor’s positive property to the

4) We examine the Plaintiff’s right of revocation recognized in light of the foregoing legal doctrine as seen above, as to the active and passive property offered to the joint security of ordinary creditors among the Plaintiff’s preserved claim amount and KimB’s property.

A) Comprehensively taking account of the overall purport of the arguments as seen in the evidence evidence Nos. 2 and 7, FF at the time of the conclusion of the instant contract, as collateral for the instant real estate against KimB, had the maximum debt amount of the instant mortgage, which was the secured debt amount of the said right (OOOE + interest OOE). At the time of the conclusion of the instant contract, ChoG had the maximum debt amount of the instant real estate against KimB as collateral for the instant real estate, and it was recognized that the secured debt amount of the said right was OOE, and that the market value of the said real estate was 10 won, as seen earlier. Accordingly, the secured debt amount of the FOFF’s loans was secured by the right to preferential reimbursement for the claims against OOFGB, which was in the name of the maximum debt amount of each of the above loans amount of OFOE -OOE’s joint debt amount of the instant real estate at the time of the conclusion of the instant contract. Therefore, the secured debt amount of the OFO’s claims constituted the maximum debt amount of each of this case.

B) On the other hand, comprehensively taking account of the overall purport of the arguments in evidence Nos. 2 and 7, claims held by general creditors, including the plaintiff, against KimB are OOO (SOOwon of the Seocho-gu tax claim + the plaintiff (SOOOOOwon of the Seocho-gu tax claim + FOOOOwon of the tax claim + the plaintiff (SOOOOOO director of the Seocho-gu tax claim + the plaintiff (SOOOO director) + the plaintiff (SOOOO director of the tax claim + the plaintiff) + OOOOO director of the Pakistan-si.) (i.e., FF's claims are secured with preferential payment right, so the obligation is deducted from active property to the extent that the obligation is secured, and the obligation also should be excluded from the debtor's passive property).

C) Therefore, the joint collateral value of the instant real estate, which was the only responsible property of KimB at the time of the instant sales contract, is an OOO, while KimB's small property was an OOO, and since the instant sales contract became insufficient due to the lack of the joint collateral, the instant sales contract was an act against other creditors of KimB, including the Plaintiff.

B. Whether KimB's deceased will and the defendant's bad faith

1) The debtor's act of selling real estate, which is the only property of the debtor, and changing it into money or transferring it to another person without compensation, becomes a fraudulent act against the creditor, barring any special circumstance. Thus, the debtor's intent of prejudice is presumed, and the burden of proving that the purchaser or the transferor did not have bad faith is the beneficiary (see Supreme Court Decision 200Da41875, Apr. 24, 2001).

2) The act of KimB, a tax obligor, entered into the instant sales contract with the Defendant on July 7, 201 with respect to the instant real estate, which is substantially the only responsible property between the Defendant and the Defendant on July 7, 2011, constitutes a fraudulent act as an act reducing joint security in relation to other creditors, including the Plaintiff, and the intention of the KimB’s death and the Defendant’s bad faith are presumed also presumed.

3) Determination on the Defendant’s bona fide assertion

A) On this basis, the Defendant: (a) was not known at all before the conclusion of the instant sales contract with KimB; (b) paid OB the sum of the down payment and the remainder to the KimB, and purchased the instant real estate for the purpose of residing; (c) taking into account the lien amount to be borne by the Defendant; and (d) at the time of the conclusion of the instant sales contract, the instant sales price was not significantly lower than the market price; and (b) the claim for issuance of PO, etc. or seizure of PO, etc. was made after the completion of the instant auction from KimB at the time of the conclusion of the instant sales contract; and (c) the disposition imposing capital gains tax on the said CCC apartment is not a claim subject to dividends; and (d) the disposition imposing capital gains tax on the said CCC apartment is based on a authentic deed that becomes final and conclusive by the Supreme Court Decision (2010Da18898) and thus, it constitutes a bona fide beneficiary, thereby winning in the lawsuit for cancellation of ownership transfer registration filed by KimB against the successful purchaser in the said auction procedure.

B) Comprehensively taking account of the overall purport of the arguments in evidence Nos. 1, 2, 4 through 8, 11, and 12 of this case, the following facts are as follows: (i) the Defendant paid OOOO Won to KimB on July 8, 201, and the 12th of the same month for acquisition expenses; (ii) the disposition imposing capital gains tax on the above CCC apartment as to the transfer of real estate that the above CCC apartment was sold in the compulsory auction procedure; (iii) the judgment of the Supreme Court (2010Da18898) on the claim that the above compulsory auction procedure becomes null and void due to the non-exclusive representation of Kim HH; (iii) the Defendant filed a claim for cancellation of ownership transfer registration against Kim II who was awarded a successful bid in the above procedure for compulsory auction; and (iii) the judgment of the Seoul Central District Court on the claim for cancellation of ownership transfer registration against the purchaser in the above procedure for compulsory auction (Seoul High Court Decision No. 2017-231, Apr. 27, 2017).

However, considering the following circumstances, Gap's evidence Nos. 5, 6, and Eul evidence Nos. 12 and the purport of the entire pleadings, the defendant is still entitled to dividends only within the maximum amount of claims by ChoJ, a licensed real estate agent, and the FF, a collateral security right holder, can be paid out of the proceeds of sale of the real estate in this case. Thus, upon considering the explanation that if the proceeds of sale of the real estate in this case are not distributed to other issuers, the defendant can receive dividends out of the proceeds of sale, the third acquisitor of the real estate in this case was successful in the auction procedure on July 7, 2011, the sales contract in this case was concluded only after the successful bid of the real estate in this case. ② Since ChoJ visited visited the claim management company of the FF for the real estate in this case and confirmed that the defendant had no intention to dispose of the real estate in this case to purchase the real estate in this case by the third acquisitor for the reason that it would be difficult to recognize that the real estate in this case was purchased by the court below.

3. The method of revoking the fraudulent act and restoring it to original state;

A. Relevant legal principles

1) In the event that a real estate on which a mortgage is established is transferred to a fraudulent act, such fraudulent act shall be deemed only to be established within the extent of the balance obtained by deducting the secured claim amount from the value of the real estate. Therefore, in the event that a registration of establishment of a mortgage is cancelled by repayment, etc. after a fraudulent act, the fraudulent act can only be cancelled within the extent of the balance obtained by deducting the secured claim amount from the value of the real estate (see Supreme Court Decision 2000Da63912, April 12, 2002)

2) Meanwhile, in a case where restitution is made by the method of compensation for value is limited to the scope of the claim amount of the revocation creditor, the scope of revocation of a fraudulent act and compensation for value should be limited to the smaller amount between the value of real estate held by ordinary creditors as joint collateral at the time of the fraudulent act and the amount of the Plaintiff’s preserved claim. In this case, the value of real estate should be calculated as at the time of the conclusion of arguments in the relevant lawsuit for revocation of the fraudulent act, barring any special circumstance (see, e.g., Supreme Court Decision 97Da6711, Feb. 13, 1998). The amount of the Plaintiff’s preserved claim shall include the interest or delay damages incurred after the fraudulent act’s conclusion of arguments (see, e.g., Supreme Court Decision 2000Da6641

3) In addition, where the ownership of real estate over which a mortgage was established was transferred as a fraudulent act and the said mortgage was exercised to the beneficiary who is the transferee due to the execution of the mortgage, the method of restoring the dividends to the original state, and where the dividend claim was paid to the beneficiary, it shall be done with compensation equivalent to the equivalent amount, and where the dividend claim was not paid due to the provisional disposition prohibiting the payment of dividends, it shall be done with the execution of the transfer procedure of the dividend claim (see Supreme Court Decision 2004Da67806, May

(b) Methods and scope of reinstatement;

1) In full view of the aforementioned legal principles and the facts acknowledged as above, the establishment registration of a neighboring mortgage in the name of the Industrial Bank of Korea, which became an OOO of the maximum debt amount, was completed on March 31, 2006 regarding the instant real estate, and the FF was transferred on May 17, 2010, and the establishment registration of a neighboring mortgage in the name of ChoG, which became an OOO of the maximum debt amount, was completed on July 12, 2010. Since each of the above registrations of establishment of a mortgage was cancelled for reasons of sale due to voluntary auction on August 5, 201, which is the date of the instant sales contract, the restoration following the cancellation of the instant sales contract shall be bound by the method of compensation for value.

2) Meanwhile, the Plaintiff’s amount of preserved claim against KimB is an OO personnel, and the Defendant received OOO personnel in the discretionary auction procedure for the instant real estate is as seen earlier.

3) Therefore, the instant sales contract shall be revoked within the scope of the Plaintiff’s preserved claim amount within the scope of the KRW OO which the Defendant received in the voluntary auction procedure for the instant real estate. The Defendant is obligated to pay to the Plaintiff damages for delay at the rate of 5% per annum under the Civil Act from the day following the day when the instant judgment became final and conclusive to the day when full payment is complete.

4) On this ground, the Defendant asserted that the amount received in the voluntary auction procedure for the instant real estate should deduct the purchase price of the instant real estate from the KRW OOO and the acquisition cost cost of the instant real estate from the amount. However, the obligee’s right of revocation is a system that returns the property deviating from the debtor’s general property to the beneficiary or a subsequent purchaser for all creditors in order to preserve the obligor’s property, which is a joint collateral for the claim, to the effect of the exercise of the obligee’s right of revocation is limited to the relative relationship between the obligee, beneficiary, or subsequent purchaser, and thus, the obligor does not acquire any right against the beneficiary or subsequent purchaser due to the exercise of the obligee’s right of revocation. Therefore, the obligee who exercises the obligee’s right of revocation cannot claim a deduction from the

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit.