Waiver of the right to his share of inheritance in excess of his obligation is a fraudulent act

If a debtor in excess of his/her obligation waives his/her right to his/her share in the inherited property with the agreement on division of the inherited property, and the joint security for the general creditor has decreased, it constitutes a fraudulent act against

2016 Ghana 114413

Korea

Sung-○ et al.

August 17, 2017

September 28, 2017

1. The agreement on the division of inherited property concluded on May 9, 2013 with respect to 2/7 shares among the real estate listed in the attached Table 1 list between the Defendants and the leastA, 1/7 shares among the real estate listed in the attached Table 2 list, and 2/21 shares among the real estate listed in the attached Table 3 list shall be revoked.

2.For the leastA:

(a) As to the shares of 2/7 of the real estate listed in the Schedule I, Defendant SungB shall:

B. Defendant LCC shall implement the registration procedure for transfer on the ground of restitution due to revocation of each fraudulent act with respect to each of the real estates listed in the separate sheet No. 2 and 2/21 of the real estates listed in the separate sheet No. 3.

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

Cheong-gu Office

It is the same as the order (as stated in the attached Table 3 with respect to the portion of 2/12 shares of the real estate stated in the attached Table 3, "2/12" is a clerical error of "2/21" in the part of revoking the agreement on the division of inherited property concluded on May 9, 2013.

1. Basic facts

Nonparty A did not pay the national tax determined and notified by the head of tax office 00 under the Plaintiff on June 28, 2007, including the transfer of land at 00:00 Do 000 Do 000 Do 000,000 and two parcels of land, but the transfer income tax was not reported. On September 20, 2016, Nonparty A was in arrears with KRW 00,000,000, including the additional dues at 00,000,000 (hereinafter “instant tax claim”).

Amount of tax due due and due date for the establishment of the tax liability;

(unit: won (unit: won)

Gift tax 2006208.08.01201.31.000,000,0000,000

Transfer income tax of 2007201.09.01201.3000,000,0000,000,000

Gohap00,000,000 000,000,000

On May 9, 2013, the net tearD, a member of the LAA, died on May 9, 2013, and the Plaintiff and Defendant LAB, the spouse, jointly succeeded to the least possible DNA.

MaximumD’s inherited property is the real estate listed in the separate sheet No. 1, 1/2 of each of the real estate listed in the separate sheet No. 2, and 1/3 of each of the real estate listed in the separate sheet No. 3 (hereinafter “the instant real estate”). On May 9, 2013, the largestA and the Defendants renounced their rights to their respective shares in inheritance, and the instant real estate No. 2 and 3 of this case were subject to the agreement on the division of inherited property (hereinafter “the instant agreement on the division of inherited property”). Accordingly, Defendant SungB completed the registration of the transfer of each of the instant real estate No. 2 and 3 of this case.

At the time of the instant agreement on the division of inherited property, the largestA was in excess of its obligation.

[Reasons for Recognition] Unsatisfy, Entry of Evidence A1 to 9, the purport of the whole pleadings

2. Judgment on the main defense of this case

The plaintiff asserts that the agreement on the division of inherited property in this case is a fraudulent act with the content that the largestA renounces his/her right to his/her inheritance shares in insolvency, and is seeking its revocation and restitution.

As to this, the Defendants asserted that the Defendants completed the registration of ownership transfer on each of the instant real estate following the agreement on the division of the inherited property in this case on June 11, 2013, and that the Plaintiff was aware of the fraudulent act between the largestA and the Defendants at the time of the said registration. Thus, the instant lawsuit is unlawful as the limitation period has expired.

However, in the exercise of the obligee’s right of revocation, “the date when the obligee becomes aware of the cause for revocation” means the date when the obligor becomes aware of the fact that the obligor had committed a fraudulent act while knowing that it would prejudice the obligee. This is insufficient to simply recognize the fact that the obligor performed a disposal act of the property, and it is also necessary to know the existence of a specific fraudulent act and to know the fact that the obligor had an intent to deceive himself/herself. However, when the State exercises the obligee’s right of revocation against a legal act by using the claim as the preserved claim, barring any special circumstance, whether the State was aware of the cause for revocation regarding the starting point of the limitation period should be determined based on the tax official’s awareness of the collection and preservation of the tax claim, barring any special circumstance. In addition, it can be seen that the State also knew of the cause for revocation at that time when it was aware that the tax official was aware that not only the fact of the delinquent’s disposal of the property, but also the existence of specific fraudulent acts and that the obligor had expressed an intent to injure the obligee (see, e.

In light of the above legal principles, solely on the ground that the Plaintiff is in charge of the business of collecting and preserving the register of real estate and the family relations register, it cannot be readily concluded that a tax official in charge of the business of collecting and preserving the claims of this case knew that the agreement on the division of inherited property of this case constitutes a fraudulent act at the time of registration, and there is no

Therefore, we cannot accept the defendants' main defense of safety.

3. Judgment on the merits

A. Whether a fraudulent act is established

The agreement on division of inherited property is to confirm the reversion of inherited property by performing all or part of the inherited property, which is a separate ownership of each inheritor, or by performing as a new co-ownership relationship, with respect to the inherited property, which is a provisional co-inheritors upon commencement of inheritance, and therefore becomes subject to the exercise of the right to revoke a fraudulent act. Meanwhile, barring any special circumstance, the debtor's act of selling real property, which is one of his/her sole property, and replacing it with money which is easy to consume or transferring it to another person without compensation, constitutes a fraudulent act against the creditor, barring any special circumstance. Thus, even in cases where a debtor in excess of his/her obligation has reduced joint security against the general creditor by giving up his/her right to his/her inherited property upon consultation on division of inherited property (see Supreme Court Decision 2007Da29119, Jul.

According to the above basic facts, although LA had no particular asset other than the inheritance shares of each of the instant real estate and had the Defendants waive the inheritance shares of each of the instant real estate and reduced the joint collateral for general creditors by allowing the Defendants to inherit each of the instant real estate. Thus, the agreement on the division of the instant inherited property with respect to 2/7 of the largestA’s inheritance shares among the instant real estate constitutes fraudulent act.

B. Determination as to the defendants' assertion

1) Determination as to the assertion that the most AA’s inheritance obligation is larger than that of a specific share of inheritance is not a fraudulent act

·The summary of the claim

From January 2003 to September 2005, the least DD loaned KRW 000,000,000 to E, who is the husband of the LA, and received reimbursement of KRW 000,000,000,000, and donated the amount equivalent to the above loans to the LA around the end of 2006, while the EE had difficulties in its business at the end of 2006. Since the market value of each of the of the instant real property, which is inherited property, is KRW 00,000,000,000,000,000,0000,000,000,000,000,000,0000,000,000 inheritance property, the specific inheritance share of the LA is 00,000,000,0000,000,000,000 - legal shares of inheritance [the statutory inheritance share of the LA].

·Judgment

The fact that WonE is the husband of the lowestA; the money deposited by the lowest DD to the original E is KRW 00,00,000; the money deposited to the FF was KRW 80,000,000; the money deposited to the GG was KRW 00,000; the representative from July 15, 2004 to June 8, 2007 was the lowest D; the representative director was changed to the original EE on June 28, 2007; the FF was not in dispute between the parties to the corporation operated by the original E; or there was no other evidence to acknowledge that the money was deposited to the maximum of KRW 7,00,00,00; but there was no other evidence to acknowledge that each of the above facts or evidence was written to support the payment of KRW 80,00,000.

Therefore, the above assertion by the Defendants is without merit to further examine.

2) Determination on the bona fide argument

The leastA and the Defendants asserted that the existence of the instant taxation claim was bona fide, since they were entirely unaware of the existence of the instant taxation claim.

On the other hand, in a lawsuit seeking revocation of a fraudulent act, a creditor who asserts the debtor's bad faith has the burden of proving that the beneficiary or the subsequent purchaser is bad faith, but the beneficiary or the subsequent purchaser is not the creditor, but the beneficiary or the subsequent purchaser is the burden of proving that the debtor's act of disposal of the debtor's property constitutes a fraudulent act. In the event that the debtor's act of disposal of the property constitutes a fraudulent act, evidence, etc. that is objective and acceptable should be based on objective and conclusive evidence, etc., and only on the unilateral statement of the debtor or the beneficiary or a third party's statement, etc., which is merely a mere conjection of the debtor's fraudulent act or the subsequent purchaser at the time of the fraudulent act or the subsequent purchase (see, e.g., Supreme Court Decision 2014Da237192, Jun. 11, 2015).

In full view of the aforementioned facts and the purport of the entire pleadings, in light of the fact that: (a) the Plaintiff was subject to the disposition of capital gains tax on September 30, 201 by the time limit for payment; (b) the transfer of real estate or the receipt of gift, the payment of relevant taxes may be deemed as ordinary citizens’ common sense; and (c) it is reasonable to deem that the Plaintiff was aware of the existence of the instant tax claim.

On the other hand, if the Defendants intended to commit a fraudulent act, it is clear that the Defendants renounced the rights to the inheritance shares of the least AA in the manner of renunciation of inheritance rather than the method of agreement on the division of inherited property. In light of this, the Defendants asserted that they were bona fide. However, it is insufficient to recognize that the Defendants were bona fide and bona fide, and there is no other evidence to acknowledge this differently.

(c) Revocation of fraudulent act and reinstatement;

Therefore, the agreement on the division of the inherited property of this case between the Defendants and the leastA (2/7 shares among the real estate listed in the attached Table 1 list, 1/7 shares among the real estate listed in the attached Table 2 list, and 2/21 shares among the real estate listed in the attached Table 3 list) among each real estate of this case shall be revoked as a fraudulent act. The Defendants are obligated to implement the registration procedure for the transfer of 2/7 shares among the real estate of this case (2/7 shares among the real estate listed in the attached Table 1 list, 1/7 shares among the real estate listed in the attached Table 2 list, 2/21 shares among the real estate listed in the attached Table 3 list) due to the revocation of each fraudulent act.

4. Conclusion

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