Busan District Court-2014-Gab-214690 ( August 28, 2014)

act of selling the sole property of a delinquent taxpayer to a private party constitutes a fraudulent act

In the event that national taxes are delinquent, the only property is sold to the defendant, who is the plaintiff, etc., and the act of reducing the general creditor's liability property against the delinquent taxpayer constitutes a fraudulent act, and the intention of the delinquent taxpayer and the defendant's death is presumed in light of the transaction circumstance and the relationship between the defendant and the delinquent taxpayer.

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

2014Na46195 Revocation of Fraudulent Act

Korea

OO

Busan District Court Decision 2014Da214690 Decided August 28, 2014

April 9, 2015

May 14, 2015

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 24, 2013 with respect to each building listed in the separate sheet between the defendant and AA (hereinafter referred to as "the building of this case") is revoked. The defendant will implement the procedure for the cancellation registration of ownership transfer (hereinafter referred to as "the registration of ownership transfer of this case") completed on July 26, 2013 by OO district registry office of the OO district on each building listed in the separate sheet (hereinafter referred to as "OO registry of the case").

2. Purport of appeal

The judgment of the first instance is revoked, and all of the plaintiff's claims are dismissed.

1. Facts of recognition;

A. From October 1005 to June 30, 2013, AA operated a waste intermediate treatment manufacturing business under the trade name “BB industry” from the building of this case from October 10, 2005 to June 30, 2013, AA had approximately KRW 98,00,000 as indicated in the attached Table of National Tax Default.

B. On July 24, 2013, AA entered into a contract to sell the instant building at KRW 00,000 with the Defendant, a private village (hereinafter “instant contract”) and completed the registration of ownership transfer to the Defendant on July 24, 2013. At the time of the instant contract, AA had no particular property other than the instant building.

C. On October 10, 2005, AA newly constructed the instant building after leasing the said building site from the Defendant, CCC, a co-owner of each of the 1/2 equity share of OO-Myeon O 71, 968 square meters (hereinafter “instant building site”). The said lease agreement stipulates that restoration to its original state at the expiration of the lease term.

[Ground of recognition] Unsatisfy, Gap 1 through 8 (including paper numbers; hereinafter the same shall apply), Eul 1 to 8, the purport of the whole pleadings

2. Determination on the cause of the claim

According to the above facts of recognition, AA’s selling the instant building, the sole property of which is a tax obligor, to the Defendant constitutes a fraudulent act that reduces joint security among general creditors, barring any special circumstance. In such cases, the intent of the obligor and the beneficiary is presumed (see, e.g., Supreme Court Decision 2008Da84458, May 14, 2009).

Therefore, the sales contract of this case shall be revoked by fraudulent act, barring special circumstances, and the defendant is obligated to implement the procedure for cancellation registration of ownership transfer registration of this case with respect to the building of this case to return to its original state.

3. Judgment on the defendant's assertion

A. The assertion that it is not a fraudulent act

The Defendant asserts that the instant building cannot be deemed as having property value as a joint security for general creditors, since it is inevitable to remove the instant building in accordance with the instant lease agreement’s restoration. However, the instant sales contract is not a fraudulent act. However, given that the legal situation to be removed is one of the possibility of not yet being realized, so long as the possibility of its removal is imminent and inevitable, it cannot be deemed that the instant building is not worth property value as a joint security for general creditors. The fact that the instant lease agreement provides for a special agreement to restore the building to its original state is the same as seen earlier, however, it cannot be deemed that there is a real and inevitable situation to remove the instant building. The Defendant’s assertion on this part is difficult to accept.

(b) A defense that no intention to do harm exists;

The defendant has no choice but to conclude the sales contract of this case according to the exercise of the right to purchase a building under Article 643 of the Civil Code, which is a mandatory provision of AA, and it is merely the purchase of the building of this case in the original situation of removal. The defendant is a private village of AA, but he was living a separate life due to different dwelling places, and thus, he did not know that the sales contract of this case was a fraudulent act.

According to the evidence Nos. 1, 2, and 4, the fact that the Defendant paid KRW 00 million to AA on August 5, 2013 is recognized.

However, considering the following circumstances, it is difficult to deem that the above-mentioned facts alone did not have the intention of deception to the Defendant.

① The Defendant appears to have been close to know about the business operation and property status of AA, such as lending the site to the new construction of the instant building by AA as it was in the private villages of AA.

② From a sales contract (Evidence B1), the full amount of KRW 00 million was paid as down payment at the time of the contract, and the registration of ownership transfer was agreed to complete the registration of ownership transfer with payment and simultaneous performance. Nevertheless, on the other hand, the registration of ownership transfer in the name of the defendant as to the building of this case was completed on July 26, 2013, while the payment was made on August 5, 2013.

③ It is difficult to readily conclude that the Defendant was inevitable to accept the exercise of the right to purchase a building by AA. As seen earlier, the instant lease agreement has a special agreement for restoration to its original state, and such special agreement is valid unless it is unfavorable to the lessee. However, the Defendant voluntarily asserted that the instant building site was provided in consideration of the circumstances of AA (the Defendant’s reply), and even according to the instant lease agreement, the lease deposit amount is KRW 0 million and KRW 00 million per month is merely a rent. In light of such circumstances, the special agreement for restoration to the original state cannot be deemed to be a substantial disadvantage to the lessee (see, e.g., Supreme Court Decision 96Da45443, Apr. 8, 1997). The special agreement for restoration to the original state is valid, and cannot be readily concluded that AA has a right to purchase a

Ultimately, the defendant's defense cannot be accepted.

4. Conclusion

Therefore, the sales contract of this case should be revoked as a fraudulent act, and the defendant is obligated to implement the procedure for cancellation registration of transfer of ownership of this case to AA with respect to the building of this case.

If so, all of the plaintiff's claims should be accepted because they are reasonable. Since the judgment of the court of first instance with the same conclusion is justifiable, the defendant's appeal is dismissed as it is without merit.