Sub-Support-2016-Shap-103209 ( October 26, 2017)

Since a debtor in excess of his/her obligation waives his/her right to inherited property with the agreement on division of inherited property, it constitutes a fraudulent act.

As a result, it is recognized that the result of division of property is less than the amount equivalent to the debtor's specific share of inheritance by giving up the right to inherited property while consulting on division of inherited property by the debtor in excess of the debt.

§ 406. Right of revocation by Creditor

2017Na204708 Revocation of Fraudulent Act

Korea

○ ○

October 19, 2017

November 2, 2017

1. The Plaintiff’s appeal against the Defendants and the Defendants’ appeal are all dismissed.

2. The plaintiff's claims extended in the trial against the defendants are all dismissed.

3. The costs of the lawsuit after filing the appeal shall be borne individually by each person.

1. Purport of claim

A. The Defendants and Nonparty AA’s agreement on the division of inherited property concluded on April 16, 2014 with respect to 2/9 shares in the real estate listed in the separate sheet No. 1 shall be revoked within the limit of KRW 490,201,688. The Defendants shall pay to the Plaintiff 245,100,84 won each, and the amount calculated at the rate of KRW 5% per annum from the day following the day this judgment became final and conclusive to the day of full payment (the Plaintiff reduced the limit of the claim for revocation of fraudulent act with respect to the said real estate and expanded the principal of the claim for compensation for value).

B. The gift agreement concluded on April 3, 2014 with respect to 2/9 shares in the real estate listed in paragraph (2) of the attached Table No. 2 between Nonparty AA and Defendant BB shall be revoked. Defendant BB will implement the procedure for cancellation of ownership transfer registration completed on April 4, 2014 with respect to 2/9 shares in the real estate listed in paragraph (2) of the attached Table No. 2 of the attached Table to the Plaintiff.

C. On April 3, 2014, the gift agreement concluded on April 3, 2014 between Nonparty AA and Defendant CCC with respect to 2/9 shares of the real estate listed in the separate sheet No. 3 is revoked. Defendant CCC shall revoke the agreement on donation concluded on April 3, 2014 with respect to the Plaintiff’s KRW 40,614,660 and the annual rate

(1) pay the amount of money calculated at the rate of

2. Purport of appeal

A. The plaintiff's purport of appeal

In the judgment of the court of first instance, as to 2/9 shares of the real estate listed in attached Table 1 against the Defendants

The part concerning the cancellation of the harmful act and the claim for value compensation is modified as follows. The conclusion on April 16, 2014 between the Defendants and the Nonparty AA on the 2/9 share of the real estate listed in the attached Table 1.

The agreement on the division of inherited property shall be revoked within the limit of 490,201,688 won. The Defendants shall pay to the Plaintiff 245,100,844 won and 5% interest per annum from the day following the day this decision became final and conclusive to the day of complete payment (the Plaintiff shall have lost the Plaintiff in its entirety in the judgment of the first instance.

2/9 shares of each of the real estates listed in attached Table 2 and 3, after being dissatisfied with

Each fraudulent act revocation and recovery claim were excluded from the scope of appeal).

B. The defendant's purport of appeal

The part against the Defendants in the judgment of the first instance is revoked, and all of the Plaintiff’s claims against the Defendants corresponding to the revocation part are dismissed.

1. Basic facts

The court's explanation on this part is the same as the "1. Basic Facts" in the judgment of the court of first instance, and thus, it is citing this in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination on the defense prior to the merits

The court's explanation about this part of this case is "2. The defense prior to the merits of the court of first instance."

Since the judgment is the same as the statement, it is accepted by the main text of Article 420 of the Civil Procedure Act.

3. Determination as to the claim for revocation of a fraudulent act

A. Summary of the parties' assertion

1) Summary of the Plaintiff’s assertion

The plaintiff acquired tax claims against the non-party AA, and the non-party AA, in excess of its debt, renounced the inherited property equivalent to the portion equivalent to its specific share of inheritance among the real estate 1 of this case, and the defendants agreed on the division of inherited property of this case with the purport that they acquire shares of 1/2 of the above real estate. The agreement on the division of inherited property of this case shall be revoked within the scope of the part below the specific share of the non-party AA, and the defendants are obliged to pay to the plaintiff the amount equivalent to 1/2 of the part below the specific share of inheritance and the compensation for delay.

Nonparty AA’s statutory portion of inheritance is 490,201,688 won [2,205,90,000 won (2/9) multiplied by Nonparty AA’s statutory portion of inheritance (2/46,141,599 + 849,76,000 won + 90,000 won + 90,00 won - 90,000 won (2/3 real property value of 2/3 real property of this case) - 2/49,76,000 won (the value of 2/3 real property of this case) - 849,76,00 won (the value of 2/3 real property of this case) - 49,000 won (the above statutory portion of inheritance of this case) - 2/90,000 won (the Defendants’ statutory portion of inheritance of this case - 40,000 won) - 2/9681,28482 of this case’s inheritance of this case between the Defendants and Nonparty.

2) Summary of the defendant's assertion

In calculating the specific shares of the non-party AA’s specific shares of inheritance, the amount of KRW 430,00,000 shall be included in the amount of KRW 40,000 in cash on September 21, 2007, KRW 400,000 in the case of the subject matter of the right to collateral security set forth in the third real property of this case, which was donated in advance by the networkD with the special profits of the non-party AA. In addition, the amount of KRW 430,00,000 in the case of the subject matter of the right to collateral security set forth in the third real property of this case shall be included in the defendants’ special profits.

In such cases, Nonparty AA’s statutory inheritance amounted to KRW 539,245,973 (1) [=The active property at the time of the death of the deceased DD + (849,766,00 won prior to inheritance against the Defendant - the collateral security division

The secured debt amounting to KRW 430,00,00) + the net DD’s prior donation amounting to Nonparty A 650,69,281 won 2) - Lease Deposit Repayment Claim amounting to KRW 90,00,000 x 2/9 x 2/9. If Nonparty AA deducts prior donation amount from the legal share of Nonparty A’s legal share, the prior donation amount exceeds the legal share of inheritance, and thus, Nonparty AA’s specific share of inheritance exceeds the legal share of inheritance. Accordingly, even if Nonparty A and the Defendants agreed on the division of inherited property of this case giving up their share of KRW 2/9 of the real estate of this case, this does not constitute fraudulent act.

B. Determination

(i) the existence of the preserved claim

According to the facts cited in the above 1. The taxation claim of the non-party A, including the value-added tax, the transfer income tax, and the global income tax, against the non-party A from June 30, 2009 to June 30, 201, was established. Since the non-party AA consulted on the division of the inherited property of this case after the date of establishment of the above taxation claim, the above taxation claim becomes the preserved claim for revocation of fraudulent act.

2) The establishment of fraudulent act and intent to commit suicide

A) As the agreement on division of inherited property becomes final and conclusive with respect to inherited property which has been provisionally owned by co-inheritors upon commencement of inheritance as a sole ownership by each inheritor or as a new co-ownership relationship, the ownership of the inherited property is for the purpose of property rights by its nature, and thus, it can be subject to the exercise of the right to revoke a fraudulent act (see, e.g., Supreme Court Decision 2007Da29119, Jul. 26, 2007). Even if a debtor in excess of a debt waives his/her right to the inherited property upon the agreement on division of inherited property and the joint security against general creditors is reduced as a result, it shall not be revoked as a fraudulent act unless it is deemed that the result of division of property falls short of the extent equivalent to the debtor's specific share of inheritance, and even if it falls short of the extent equivalent to the debtor's specific share of inheritance, the scope of revocation as a fraudulent act should be limited to the part falling short thereof (see, e.g., Supreme Court Decision 2000Da5

B) At the time of the division of the instant inherited property, the Defendant did not dispute that Nonparty A had been in excess of the debt. As a result of the division of property following the agreement on division of the instant inherited property, the inherited property renounced by Nonparty A falls short of the degree corresponding to the specific share of the Nonparty AA. Thus, we examine whether the agreement on division of the instant inherited property constitutes a fraudulent act.

(1) An inheritor, a statutory share in inheritance

According to the facts based on the above 1. The spouse EE, children AA, and Defendants as co-inheritors of the network DD, and the legal portion of inheritance among co-inheritors is EE 3/9, Nonparty AA, and Defendants 2/9, respectively.

(2) Inherited property subject to division

(A) Proactive property at the time of the death of the network DDR

According to Gap evidence No. 8-1, active property at the time of the deceased DD's death can be recognized as the fact that causes of 1,446,141,599.

(B) Special proceeds of the Defendants

According to Gap evidence No. 8-1, the deceased DDR donated the defendants with the real estate Nos. 2 and 3 of this case in advance, and the defendants' special profits therefrom can be acknowledged as constituting a total of 849,766,00.

(C) Special proceeds of Nonparty AA

① Whether the instant house was donated in advance

In addition to the statement in Eul evidence No. 1, in addition to the whole purport of the argument, the non-party AA and its AFF completed the registration of ownership transfer on December 22, 2005 with respect to each of the 1/2 shares of the instant Asian apartment owned by the network DDD on December 23, 2005. However, it can be recognized that the non-party AA and FF received the instant apartment from the network DD and did not have reported or paid the gift tax. Thus, it is insufficient to recognize that the non-party AA and FF received the instant Asian apartment from the network DD on the sole basis of the fact that the non-party AA and FF were their children or grandchildren, and there is no other evidence to acknowledge it. Thus, this part of the defendants' assertion is without merit.

(2) Whether the donation in cash of KRW 400,000,000 on September 21, 2007 is made in advance

In addition to the statement of No. 3-1 and No. 4-2 of the evidence No. 4-2 and the testimony of Non-Party AA in part of the testimony of Non-Party AA, the fact that the deceased has obtained a loan of KRW 200,000,000 from the third real estate of this case under his own name as security and paid it to Non-Party A. according to the above facts of recognition, it is reasonable to view that Non-Party A has received the above KRW 200,000,000 from the deceased DD in advance.

The Defendants asserted that Nonparty A was donated KRW 200,00,00 in cash from DD around September 2007. Thus, according to the records of evidence Nos. 2-2, 2-3-2, 2-4-1, and 7 of EA, Nonparty A’s mother EA’s own name around September 2007 and paid KRW 200,00,000,000 to Nonparty AA as security, and the above Defendants’ principal amount was paid to Nonparty 20,000,000,000,000,000,000,000,000,000 won was paid to Nonparty A’s principal and interest until May 20, 201, it is reasonable to recognize that Nonparty A’s principal and interest was paid to Nonparty 20,000,000,000,000,000,000 won of EA’s loan and its principal were not repaid.

(3) Whether a donation is made in advance of KRW 50,000,000 in cash on February 4, 2008

According to the statement of Eul evidence No. 6, the witness testimony and the whole purport of the argument of the non-party AA, it can be acknowledged that the network DD deposited KRW 50,000,000 to the husband of the non-party AA on February 4, 2008 into the passbook without passbook. According to the above facts of recognition, it is reasonable to deem that the non-party A was donated with the above KRW 50,00,000 from the network DD.

4. The value at the time of commencing the inheritance of the first donation to Nonparty AA.

In calculating a specific share of inheritance, the market value of the donated property by an obligor to return shall be calculated at the time of commencement of the inheritance. Therefore, where donated property is money, it is reasonable to deem the donated property to be the value of donated property by converting it into the monetary value at the time of commencement of the inheritance. Such conversion of monetary value is reasonable by reflecting the rate of price fluctuation between the time of donation and the time of commencement of the inheritance (see Supreme Court Decision 2006Da28126, Jul. 23, 2009). In addition, it is reasonable to use GDP d d d d d d d d d d d d d d d d d d d d d d d d d d d d d d d d d e d d d e d d d d d d

Accordingly, when calculating the value at the time of the commencement of the inheritance of cash donated by Nonparty AA from the deceased DD, KRW 200,000,000 in cash as of September 21, 2007 (=200,0400 million) ¡¿ 104.1 (GDP DP plal value as at the time of death)/90.9 (GDP value as at the time of donation, 2007 at the time of donation)

(1) 50,000,000 won in cash as of February 4, 2008

5,608,974 won (=50 million won x above 104.1/93.6 (GDP d d d d d d d d f in 2008 at the time of donation)) shall be 55,608,974 won.

⑤ Sub-committee

Therefore, the special profit of Nonparty A is KRW 284,651,878 (=229,042,904 + KRW 55,608,974).

(D) Petty property at the time of the deceased DDR death

According to Gap evidence No. 8, it can be acknowledged that there was a debt of KRW 90,00,00 at the time of the deceased DD's death. Thus, the above lease deposit obligation is included in the network DD's small property.

Meanwhile, according to the evidence evidence No. 5, on December 21, 2012, 2012, regarding the third real estate of this case, the establishment registration was completed in the name of the debtor EE and the maximum debt amount of 513,500,000 won with respect to the third real estate of this case. However, the above facts alone do not constitute a small property of the secured debt of the network, and there is no other evidence to prove otherwise. Therefore, this part of the defendants' assertion on the premise that the secured debt of the secured debt of this case constitutes the secured debt of the networkD is without merit.

(3) Calculation of specific shares of inheritance of Nonparty AA

53,457,61 won [the active property at the time of the death of the network, the negative property and the special profit of the non-party AA and the defendants are calculated in the specific share of inheritance of the network AA, 553,457,661 won [the amount of KRW 1,46,1499 + (the active property of the network 1,446,146,599 + the defendants' special profit + the amount of KRW 849,76,000 + the special profit of the defendants + KRW 284,651,878 - the special profit of the non-party AA 284,651,00,000) x 2/9].

(4) Whether a fraudulent act was committed

Nonparty AA waives inherited property equivalent to KRW 268,805,776 (i.e., KRW 553,457,654 - KRW 284,651,878 (= KRW 229,042,904 + KRW 55,608,974), which was donated in advance by the deceased DD, through the agreement on the division of inherited property in this case, and gives up inherited property equivalent to KRW 268,805,776 (i.e., KRW 553,457,654 - KRW 284,651,878), which constitutes a fraudulent act detrimental to the general creditors of Nonparty AA.

C) Since Nonparty AA had an agreement on the division of the inherited property of this case with the Defendants in excess of its debt, Nonparty AA’s intent to commit the act can be recognized, and the Defendants can be seen as the Defendants.

In addition, it is presumed that Nonparty A acquired the above inherited property with the knowledge of these circumstances.

3) Whether the Defendants are bona fide beneficiaries

At the time of the agreement on the division of inherited property of this case, the Defendants asserted that Nonparty A was a bona fide beneficiary due to Nonparty A’s failure to know the fact that Nonparty AA’s debt excess status or Nonparty AA would prejudice the general creditors by waiver of inheritance shares. However, the testimony of Nonparty A is insufficient to recognize this only, and there is no other evidence to acknowledge this otherwise, the Defendants’ assertion is without merit.

4. Revocation of fraudulent act and reinstatement;

(a) Methods for reinstatement;

In the event that a third party acquires a mortgage, superficies, etc. on an object after a fraudulent act, barring special circumstances, such as that the beneficiary may restore the object to its original state without any restriction on mortgage, etc., the creditor may seek compensation equivalent to the value against the beneficiary by means of restitution, and may seek direct performance of the debtor’s transfer registration procedure (see, e.g., Supreme Court Decision 2004Da54978, Dec. 7, 2006).

In light of the record of evidence No. 3, on January 28, 2016, each of the shares of No. 1/2 of the instant real estate No. 1 among the instant real estate was transferred to the Defendants through a consultation on the division of inherited property through the division of inherited property, and on January 28, 2016, the right to collateral security, which was established as a mortgagee, as ○○ Saemaul Depository, and Defendant CCC, was additionally established. Accordingly, according to the above facts of recognition, the Plaintiff may seek compensation for the amount equivalent to the value thereof against the Defendants due to the revocation of fraudulent act, barring any special circumstance.

B. Scope of compensation for value

According to the above facts of recognition, the defendants are obligated to pay the plaintiff the value compensation of 134,402,888 won (=268,805,776 won x 1/2) and damages for delay calculated at the rate of 5% per annum as provided by the Civil Act from the day following the day when this judgment becomes final and conclusive to the day of full payment.

5. Conclusion

Thus, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. The judgment of the court of first instance (excluding the part invalidated by reducing the claim of this case by this court) is just as it concludes with this conclusion. The plaintiff's appeal against the defendants, the appeal by the defendants, and the plaintiff's claim extended in the court of first instance against the defendants is dismissed as it is without merit. It is so decided as per Disposition