Since the property division agreement is not in excess of the debt at the time of the agreement, the fraudulent act is not revoked.

As long as the amount to be paid as property division is judged as the object of fraudulent act in determining whether the property division agreement was in excess of the obligation, it cannot be included as a negative property, and thus, it is not subject to revocation of fraudulent act.

Article 30 of the National Tax Collection Act

2012Du21017 Revocation of Fraudulent Act

Korea

Park AA

September 12, 2013

October 17, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The property division contract concluded on August 20, 2007 between NAB and the Defendant shall be revoked within the scope of KRW 00,000,000. The Defendant shall pay to the Plaintiff the amount of KRW 00,000,000 and the amount calculated at the rate of 5% per annum from the day following the day when the instant judgment became final to the day of full payment.

1. Facts of recognition;

A. On March 27, 2007, HB sold 420-9 land and above-ground buildings (hereinafter “instant real estate”) to KimD for KRW 2 billion, not reported to the tax office.

B. On September 1, 2009, the head of the FF Tax Office under the Plaintiff’s control determined on September 1, 2009 that the sum of KRW 000,000,000,000 for the transfer income tax on the instant real estate, and additional tax of KRW 00,000 due to the filing of the report and the failure to pay the said tax, and notified the B.

C. Meanwhile, from February 28, 1987, HB had legal relations with the Defendant. In consultation on the divorce on August 20, 2007, HB and the Defendant agreed on the divorce, HB paid the Defendant KRW 130 million out of the compensation and the proceeds of the sale of the instant real estate, and KRW 1.3 billion out of the compensation and the proceeds of the sale of the instant real estate, and KRW 1.3 billion to the Defendant, and the Defendant received the said money and received the said money (hereinafter “instant property division agreement”) and completed the divorce report on September 16, 2008.

D. Around July 21, 2011, the director of the GG tax office under the Plaintiff’s control issued a notice to the Defendant to conduct a tax investigation on August 28, 2008 regarding the purchase of a multi-family house located in the GGdong located in the GG Gu. After that, the GG tax office conducted a tax investigation on the Defendant and the GB, and on August 29, 2011, the Defendant could be deemed to have raised consolation money and a property division under the divorce agreement with the GB, so there is no suspicion of evading the disposition on default.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 10, Eul evidence Nos. 1 and 2 (including each number), the purport of the whole pleadings

2. The plaintiff's assertion

A. As of August 20, 2007, at the time of the instant agreement on the division of property, B was in excess of the obligation as follows: (i) PB’s active property: (a) the remainder of the real estate purchase price of this case is KRW 1.5 billion (the purchase price of the real estate of this case is KRW 2 billion; (b) the HB received KRW 500 million out of that of April 30, 2007; and (c) the amount was excluded from the balance of the purchase price; (d) KRW 1.37 billion after deducting the obligation to return the deposit; and (e) KRW 130 million of the deposit to return the deposit for the main apartment rental house located in OO-dong at O-type; and (e) KRW 200,000,000,000,000 property to the Plaintiff, including the total amount of the tax obligation to the Plaintiff’s KRW 1.5 billion,000,000.

B. As of September 16, 2008, when the agreement between the defendant and the HaB is reached, the active property subject to division of property of the above couple is KRW 00,000,000,000 in total, including the defendant's deposit claim, KRW 00,000,000 in the market price of the multi-family house located in the GGdong located in GGdong, purchased by the defendant, and KRW 00,000 in total, and the passive property is KRW 5:5,000 in the amount of the tax liability against the plaintiff of YB. If the division ratio of property following the divorce is considered as KRW 00,000 in total, KRW 00 ( KRW 00,000 in - KRW 00,000 in - KRW 000 in 0,000 in - KRW 50,000 in the amount of the creditor's active property division deposit and this case's creditor's creditor's creditor's damages.

C. Therefore, the instant agreement on the division of property should be revoked within the extent of exceeding KRW 00,00,000,000, deducting the profits that the Defendant would have obtained if there had been a legitimate agreement on the division of property from the total amount of positive property subject to division, from the amount of KRW 00,000,000, which would have been earned by the Defendant if there had been a legitimate agreement on the division of property, (i) the Defendant shall seek compensation for the equivalent amount to the above amount.

3. Determination

A. Determination on this safety defense

The Defendant appears to have known of the instant fraudulent act on August 29, 201, which was before August 201, 201, as the Plaintiff sent a prior notice of tax investigation to the Defendant on or after July 21, 2011. The Defendant asserts that the instant lawsuit was filed after the lapse of one year thereafter, and that the exclusion period is unlawful.

In the exercise of the right of revocation, the "date when the creditor becomes aware of the cause for the revocation" means the date when the creditor becomes aware of the requirement for the right of revocation, that is, the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act with the knowledge that it would prejudice the creditor. In order to say that the creditor was aware of the cause for revocation, it is insufficient to say that the creditor merely knew of the fact that the debtor conducted a disposal of the property, and further, that the debtor was aware of the existence of a specific fraudulent act, and that the debtor was aware of the intent of deception (Supreme Court Decision 2002Da23857 delivered on September 24, 2002).

With respect to the instant case, it is insufficient to recognize that the Plaintiff could have known the existence of specific fraudulent act and the intention of the YB’s death, beyond the fact that YB, the debtor, had made the agreement on the division of property between the Defendant and the Defendant before the completion of the said tax investigation. There is no other evidence to acknowledge otherwise.

Therefore, we cannot accept the defendant's defense on the merits.

B. Judgment on the merits

A division of property by divorce is a system that has the economic difficulty to support the other party, which is economically difficult in the nature of the liquidation of the common property that has been achieved through the cooperation of both parties during marriage. Although a debtor who has already been in excess of his/her debt, while divorced and transfers a certain property to his/her spouse, thereby reducing joint security against the general creditor, barring any special circumstance that such division of property is excessive beyond a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act, it does not constitute a fraudulent act and is not subject to revocation by the creditor, unless there are any special circumstances that deem that such division of property is excessive beyond a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act. However, it cannot be deemed as a legitimate division of property that exceeds a considerable degree, and thus, it can be subject to revocation (see, e.g.

First of all, it is not sufficient to recognize that B was in a state of excess of the obligation solely on the evidence submitted by the Plaintiff, and there is no other evidence to acknowledge that B was in a state of excess of the obligation at the time of the instant division of property.

Rather, according to the evidence mentioned earlier, the active property of B at the time of August 20, 207, when the property division agreement of this case was reached, was ① KRW 2 billion, which constitutes the real estate purchase price of this case ( voluntaryB received KRW 500 million with the real estate purchase price of this case, and held claims equivalent to KRW 1.5 billion with the claim amounting to KRW 1.5 billion, and thus, it seems that the total amount of KRW 2 billion which constitutes the real estate purchase price of this case is included in positive property) ② HB’s deposit claim of KRW 0,000 (Evidence 6-1), ③’s deposit claim of KRW 00,000,000,000,000 won with the main apartment lease deposit return claim of KRW 00,000,000,000 with the real estate purchase price of this case, and thus, the Plaintiff’s property division agreement should not be revoked with the Plaintiff’s positive property division of KRW 00,000,000.

Therefore, the prior plaintiff's assertion on a different premise is without any need to examine another point of view.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.