The act of entering into a mortgage contract constitutes a fraudulent act and is presumed to be bad faith.

The act of entering into a mortgage contract with the defendant, which has long been owned by a person who was not in excess of his/her obligation, constitutes a fraudulent act and is presumed to be a bad faith in relation to the plaintiff, who was a tax claim.

2012 Ghana 206009 Revocation of Fraudulent Act

Korea

Maximum XX

October 23, 2012

November 8, 2012

1. The contract to establish a mortgage concluded on July 4, 201 with respect to real estate listed in the separate sheet between the defendant and the headA shall be revoked.

2. The Defendant shall implement the registration procedure for cancellation of the registration of cancellation of the establishment of a neighboring mortgage completed by the Daejeon District Court No. 73418, Jul. 4, 2011 with respect to the said real estate to the headA.

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

The same shall apply to the order.

1. Facts of recognition;

(a) A taxation claim;

1) On January 27, 2003, the head of the Gu sold the land and its ground buildings of the Daejeon Peong-dong 353-1 land and its ground buildings.

2) While the head of the Dong paid a preliminary return of capital gains tax, the Daejeon Regional Tax Office deemed that the head of the Daejeon Regional Tax Office was suspected of underreporting capital gains tax with respect to the above real estate sale and purchase, and on June 17, 2011, selected him/her as a person subject to investigation and sent a prior notice of tax investigation to the head of the Dong on June 22, 2011, and the head of the Dong received the said notice on June 23, 201.

3) From July 5, 2011 to August 3, 2011, the Daejeon Regional Tax Office conducted a tax investigation with respect to the AA, and notified the time limit for payment of under-reported KRW 000 ( January 31, 2003 on the date on which the tax liability is established) as of September 30, 201.

4) On July 10, 2012, the date of filing the instant lawsuit, the amount in arrears of the capital gains tax not paid by the head of the Gu as of July 10, 2012 is KRW 00.

(b) Disposition of real estate listed in the separate sheet;

On July 4, 2011, the president entered into a mortgage agreement with the Defendant, which is a long-standing place on the real estate listed in the separate sheet (hereinafter referred to as “the instant real estate”) and the establishment of the obligee’s right to collateral security (hereinafter referred to as “mortgage agreement”) with the Defendant. On July 4, 201, Daejeon District Court received on July 4, 201, No. 73418 (hereinafter referred to as “the establishment registration of the neighboring mortgage”). The Defendant completed the establishment registration of the mortgage (hereinafter referred to as “the establishment registration of the neighboring mortgage”) on the instant real estate. The Defendant’s loans to the President A and ParkB.

On October 29, 2009, the defendant transferred 000 won to the account of ParkB, which was the president of the AA Medical Foundation, to a medical corporation as the spouse of the head of the AA on October 29, 2009, and received a loan certificate from the head of the AA and ParkB as the debtor.

(d)the status of the property of the AA and ParkB;

1) The Defendant’s active property at the time of the instant contract (i.e., the real estate market value of the instant real estate + KRW 000 won in cash) was KRW 000. However, even if the Defendant was excluded from the obligation, the negative property was in excess of the obligation (i.e., the senior collateral security obligation of the instant real estate + KRW 000 + tax obligation against the Plaintiff).

2) Around December 2006, ParkB purchased 10,920 square meters of forest 47 m2, 000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,800 m2,000 m2,000 m2,000 m2,09-2, 509-2, and 509-3 m2,069 m2,00 m2,00 m2,00 m2,000 m2,000 m2,000 m2,000 m2,000 m2,00 m2,000 m2,00 m2,00 m2,00 m2,00 m2,00 m2,00

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 4, 10 evidence, Eul evidence 1 and 4 (including each number), the purport of the whole pleadings

2. Determination as to the cause of action

(a)the existence of preserved claims;

1) In principle, a claim that can be protected by the obligee’s right of revocation should have arisen before the obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, at the time of the juristic act, there has already been a legal relationship which serves as the basis of establishment of the claim, and there is high probability that the claim would have been created in the near future, and in a case where a claim has been created due to the realization of the probability in the near future, the claim may also be the preserved claim (see, e.g., Supreme Court Decision 2000Da17346, Jun. 27, 2000).

2) Regarding the instant case, although the notice of tax claim was not given to the Plaintiff’s DoD at the time of the instant mortgage contract, on January 27, 2003, the requirements for imposition of capital gains tax, which is the legal relationship that is the basis for the occurrence of claims that can be protected by the obligee’s right of revocation, was already established by selling the Daejeon Pung-dong 353-1 land and its ground buildings. On June 22, 2011, the Daejeon regional tax office deemed that there was a suspicion of underreporting of capital gains tax, and it was highly probable that the Plaintiff’s tax claim against Do Governor was established based on the near future legal relationship, such as sending a notice of tax investigation to the headA on June 22, 2011. In fact, the Plaintiff’s claim becomes a preserved claim of the obligee’s right of revocation.

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

1) An act of an obligor in excess of his/her obligation to provide real estate owned by him/her to a person among creditors as collateral for a claim constitutes a fraudulent act in relation to other creditors, barring special circumstances (see Supreme Court Decision 97Da10864, Sept. 9, 1997). Thus, barring special circumstances, a beneficiary's malicious intent is presumed as long as the obligor's perception that such act of offering collateral for a claim would result in the reduction of ordinary creditors' joint collateral.

2) As to the instant case, the act of making a mortgage contract of this case with the Defendant, which was not in excess of a debt, was a fraudulent act in relation to the Plaintiff, who was the tax payer, and the headA knew that it would thereby prejudice the creditors. Furthermore, the Defendant, who was the beneficiary, is presumed to have been in bad faith.

C. Judgment on the defendant's argument

1) The Defendant’s defense to the effect that it was bona fide against the Defendant’s fraudulent act by failing to know the Defendant’s failure to pay taxes at all.

2) The fact that the beneficiary was unaware of a fraudulent act is the beneficiary's burden of proof in a lawsuit seeking revocation of the fraudulent act, and there is no objective and acceptable evidence to acknowledge that the beneficiary was bona fide at the time of the fraudulent act, and it should not be concluded that the beneficiary was bona fide at the time of the fraudulent act (see, e.g., Supreme Court Decisions 2006Da5710, Apr. 14, 2006; 2004Da61280, Jul. 4, 2006; 2004Da61280, Oct. 1, 200). In light of the fact that the beneficiary was aware of the fact that the beneficiary was unaware of a fraudulent act, and that there was no evidence to prove that the beneficiary was bona fide at the time of the fraudulent act, and that there was no other evidence to prove that the defendant was 200DaB's reply and no other evidence No. 20630, Feb. 1, 2002.

D. Sub-committee

Thus, the contract to establish the mortgage of this case between the defendant and the head of the Dong on July 4, 201 should be revoked by fraudulent act, and the defendant is obligated to implement the procedure for registration of cancellation of the establishment of the mortgage of this case to the head of the Dong by restitution.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the ground of the reasons.