Seoul Eastern District Court 2008Gahap9066 ( October 22, 2008)

The act of setting up a provisional registration for sale to a specific creditor when a tax claim has occurred is a fraudulent act.

In a case where a certain creditor was provided as payment in substitutes or as a security, barring special circumstances, this would harm the interests of other creditors, which would constitute a fraudulent act in relation to other creditors, and the same holds true even if the property offered as payment in substitutes or as a security is not the only property of the debtor, or is less than the amount

The contents of the decision shall be the same as attached.

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

Each of the real estates listed in the separate sheet No. 1 (hereinafter referred to as "each of the real estates of this case") between the defendant and Park Jong-seok.

As to July 2, 2007, the reservation was revoked, and the defendant will implement the procedure for the registration of cancellation of the provisional registration of the right to claim transfer of ownership, which was made on July 3, 2007 by the Seoul East Eastern District Court (Seoul Eastern District Court) Registry No. 46383 on each of the real estate in this case.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Basic facts

The following facts may be recognized in the absence of dispute between the parties, or in the entry of Gap evidence 1 through 7, Eul evidence 1, 2, and 3 (including each number), together with the whole purport of the pleadings:

A. From April 23, 2001 to December 31, 207, 2007, Park Jong-seok leased a building listed in the attached Table 2 (hereinafter “the instant wedding”) and operated the wedding hall under the trade name of ○○ Construction Institute. The Plaintiff conducted a tax investigation on Park Jong-seok from June 21, 2007 to September 14, 2007, and conducted a tax investigation on the amount of ○○-moron. It clearly stated that the value-added tax and the comprehensive income tax accrued from January 1, 2004 to December 31, 2006 were paid for the taxable period from January 31, 2007 to KRW 582,409, value-added tax and KRW 790,90,90,90,90,90,90,979, 2939, 209, 209, 397, 2005, 297, 297, 396, 1,

B. On July 2, 2007, which had been under tax investigation, on the part of the Defendant (the Defendant, on March 22, 2004, lent to Gamboo a total of KRW 500 million, KRW 100 million, KRW 500 million, KRW 100,000 to May 31, 2005, and KRW 500,000,000 to December 31, 2006) who had a loan claim amounting to KRW 500,00,00 for himself, entered into a trade reservation with the Defendant for each of the instant real estate in order to offer each of the instant real estate owned by He as collateral for the said loan claim (hereinafter referred to as the “instant reservation”), and on July 3, 2007, the Defendant made a provisional registration of ownership transfer claim (hereinafter referred to as the “provisional registration”).

C. At the time of the instant promise to sell and purchase the instant real estate, an amounting to approximately KRW 619,893,540,000,000,000 for each of the instant real estate and the instant wedding hall, and a lease deposit amounting to KRW 89,000,00 for the instant wedding hall, the market price was not over 2004, and the instant car market price was not over KRW 1,509,893,540 for the instant property (affirmative property + the said car market price). Petty property: ① A tax liability of KRW 1,373,39,79,795 for the Plaintiff; ② a loan of KRW 50,00 to the Defendant; ③ a loan of KRW 39,00,00 for each of the instant real estate was over KRW 841, Jan. 4, 200; and ③ a loan of KRW 399,790,000 for each of the instant real property.

2. Determination

A. Formation of preserved claims

According to the above facts of recognition, on July 2, 2007, which was entered into with the defendant for the purchase and sale of this case.

Since the Plaintiff’s taxation claim against Park Jong-dae has already occurred, the Plaintiff’s taxation claim can be the preserved claim of this case.

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

According to the above facts, Park Jong-dae was in excess of the obligor’s obligation at the time of entering into the instant promise to sell and purchase the instant real estate. If the obligor’s property is insufficient to fully repay the obligor’s obligation, barring any special circumstance, if the obligor provided the obligor’s property to a certain obligee as payment in kind or as a collateral, this constitutes a fraudulent act in relation to other obligees as it would prejudice the other obligees’ interests, and the same applies to cases where the obligor’s property provided as payment in kind or as a collateral is not the obligor’s property, or its value falls short of the obligor’s claim (see, e.g., Supreme Court Decision 2007Da18218, Jul. 12, 2007). Therefore, it is presumed that Park Jong-dae, who was in excess of the obligor’s obligation, concluded the instant promise to sell and purchase the instant real estate with the Defendant only to the Defendant as collateral, and that the Defendant, the obligor, was also aware of such circumstances.

C. Judgment on the defendant's assertion

(1) Fraudulent act under the Framework Act on National Taxes

The defendant argues that the contract of this case was not a false contract where the taxpayer under Article 35 (4) of the Framework Act on National Taxes conspired with a third party to make a provisional registration of the right to claim ownership transfer of the property in a false manner. Since the defendant is not a relative of the taxpayer under Article 20 of the Enforcement Decree of the Framework Act on National Taxes or a related party, so the contract of this case is not presumed to be a fraudulent act because it is not a false contract under which the contract of this case was conspired with the other party, so it is not based on Article 35 (4) of the Framework Act on National Taxes, but a lawsuit of this case is a revocation of a fraudulent act under Article 406 of the Civil Act which applies mutatis mutandis Article 30 of the National Tax Collection Act.

(2) Providing security for the purpose of rehabilitation;

The defendant asserted that the contract of this case entered into for the purpose of financing a new fund in addition to the new fund is not a fraudulent act, when it was difficult to continue to operate the wedding business due to the shortage of funds even after the time limit for payment of the loan amounting to KRW 500 million has expired. The defendant requested the defendant to provide additional financing, but the defendant judged it difficult to provide additional financing and received provisional registration of this case on the premise of additional financing of new fund.

The debtor's act of establishing a security interest does not constitute a fraudulent act unless there are special circumstances to believe that it is the best way for the debtor to have the ability to repay his/her obligation by financing funds in a situation where it is difficult to continue his/her business due to financial difficulties, and that it is inevitable for the debtor to provide certain creditors with real estate as collateral and obtain additional loans from him/her in order to lend funds. However, if the existing debt that has no relationship with the continuation of business is included in the scope of secured obligation, it may constitute a fraudulent act only in that part (see Supreme Court Decision 2000Da25842, Mar. 29, 200), and there is no evidence to acknowledge that it constitutes a fraudulent act (see Supreme Court Decision 200Da25842, Mar. 29, 200). Rather, according to the above basic facts, it is merely the defendant who made the provisional registration of this case to secure the existing loan obligation of KRW 500 million against the defendant, and the above argument by the defendant is without merit.

(3) A bona fide beneficiary

The defendant not only received the provisional registration of this case as a security for the above 500 million won loan obligation against Park Jong-seok, but also received interest on the loan obligation from Park Jong-seok, and the payment notice date of value-added tax and global income tax was made on October 1, 2007, which was after the promise to trade in this case, and therefore, it is difficult to know the fact that the above notice date of payment of value-added tax and global income tax did not know that it would harm the plaintiff as a matter of course, and therefore, it is presumed that the beneficiary's bad faith is presumed in the fraudulent act. As to the fact that the defendant did not know that he would harm the plaintiff, it is insufficient to acknowledge it only with the descriptions of the evidence Nos. 2 and 3, and there is no other evidence to acknowledge it, the defendant's above assertion is without merit.

(4) Violation of the good faith principle

The defendant asserted that since January 1, 2004 to June 30, 2004, the date when the liability for the payment of value-added tax was established is July 1, 2004, and from 2004 to 2004, the plaintiff did not make a payment of the above value-added tax and did not make a tax investigation after 3 years have passed, and the plaintiff took measures such as seizure, etc. on each part of this case while conducting a tax investigation. This is against the provisions of Article 15 of the Framework Act on National Taxes, and if the plaintiff was taking measures such as prompt seizure, etc. after the default of value-added tax, the defendant did not receive the provisional registration of this case. Thus, the plaintiff's claim of this case violates the good faith principle.

On the other hand, the principle of good faith under Article 15 of the Framework Act on National Taxes refers to that the principle of good faith shall not infringe upon the interests of the other party acting in trust in his speech and behavior, and in order to apply this principle, the tax authority should issue a public opinion that is the object of trust to the interested parties such as the taxpayer, etc. (see, e.g., Supreme Court Decision 97Da22311, Nov. 27, 2001). Even if the defendant's assertion itself is based on the defendant's own opinion, the tax authority did not issue a public opinion that is the object of trust to the taxpayer, etc. or the defendant. In addition, in full view of the purport of the argument stated in the evidence No. 2, the plaintiff revealed the under-reported and paid-in fact in the above tax investigation process, and immediately it is recognized that each of the real estate of this case was seized on July 3, 2007 and July 4, 2007. Therefore, the above argument by the defendant is without merit.

3. Conclusion

Therefore, the pre-sale agreement of this case between the defendant and Park Jong-seok was cancelled as a fraudulent act, and the defendant is obligated to perform the procedure of cancellation registration of provisional registration of this case concerning each real estate of this case, so the plaintiff's claim of this case seeking the implementation of this procedure is justified, and the judgment of the court of first instance is justified, and thus, the defendant's appeal is dismissed as it is without merit.