It is reasonable to deem that the apartment was aware that it was in excess of the liability by donation of the apartment.

In light of the fact that it appears that it would have been sufficiently known that the taxation claim will be imposed through the accounting officer in the pre-announcement of taxation, and the fact that the apartment is donated on the day of receiving the notice of pre-announcement of taxation, it is reasonable to deem that it was aware that it is in excess of the liability by selling the apartment.

2012 Ghana 367 Revocation of Fraudulent Act

Korea

KimA

January 17, 2013

February 7, 2013

1. As to real estate listed in the separate sheet:

A. Revocation of the contract of gift made on May 27, 201 between the Defendant and KimB, and

B. The Defendant will implement the procedure for the cancellation registration of transfer of ownership, which was completed on May 30, 201 by the Suwon District Court Lee Incheon District Court’s transfer registry office as of May 30, 201.

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

The same shall apply to the order.

1. Basic facts

A. The Defendant’s husband, KimB held 1,142,00 shares issued byCC, which were 1,142,00 shares. On June 4, 2008, as it was merged into DD on July 10, 2008, KimB acquired 4,75,470 shares of DD (the par value: 00 won per share) in return for the merger, and DB acquired 1,75,470 shares of DB in return for the merger, and DB did not file a report on the dividend income of 00 won after deducting the acquisition value of CCB shares issued by KimB from the new shares issued by KimB (hereinafter “the dividend income of this case”). The KimB did not file a report on the dividend income of this case by adding 00 won to the dividend income of this case until May 31, 2009.

B. On April 1, 2011, the National Tax Service discovered the fact that KimB was not reported by adding up the dividend income of this case to other income at the time of reporting global income tax for the year 2008, and notified this fact to the Leecheon Tax Office. On May 27, 2011, the tax office notified KimB of the pre-announcement of taxation to correct and impose the global income tax for 2008 by adding up the dividend income of this case to other income. On August 1, 2011, the National Tax Service notified KimB of the pre-announcement of taxation to correct and impose the global income tax for 2008 (hereinafter "tax claim of this case") for the global income tax for 2008.

C. On May 27, 2011, KimB donated to the Defendant, the wife, the real estate indicated in the separate sheet (hereinafter referred to as “the apartment of this case”) equivalent to the market value of KRW 000,00, and completed the registration of ownership transfer under the Defendant’s name on May 30, 201. At the time, KimB owned 15,000 shares of EEEF shares in addition to the apartment of this case, and was liable for a loan of KRW 00,000 to OB bank.

D. After that, on February 28, 2011, KimB agreed to pay 2% of the amount guaranteed by KimB as penalty if FOB did not leave the status of joint and several sureties for the obligation of DD until Suwon District Court Suwon District Court Sungwon District Court, Sungwon District Court, Sungnam branch, the FO2, the FO2, the FOB, the FOB, the KimB, the 200 won of 20% of 20% of 20% of 20% of 20% of 20% of 20% of 20% of 20% of 20% of 20% of 20% of 200 as her joint and several sureties, while the FOB, the FOB, the FOB, the 200 won of 20% of 20% of 20% of 20% of 20% of 20% of 20% of 20% of 2011.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 10, Eul evidence 8-1, 2, Eul evidence 9, the purport of the whole pleadings

2. The assertion and judgment

A. Determination on the cause of the claim

1) Formation of preserved claims

In light of the above, although it is necessary to consider a claim that can be protected by the obligee's right of revocation as a matter of principle, there has already been legal relations which form the basis of establishment of the claim at the time of the fraudulent act, and it is highly probable that the claim is established in the near future based on such legal relations. In fact, it is highly probable that the claim is established in the near future because it has been realized in the near future, the claim can also be subject to the obligee's right of revocation (see, e.g., Supreme Court Decisions 95Da27905, Nov. 28, 1995; 2006Da4858, May 31, 2007). According to the above basic facts, the claim in this case was established after KimB donated to the Defendant on May 27, 201, but it is highly probable that the claim in this case was established by the National Tax Service's subsequent legal relations at the time of the merger and 4,7541,710.

2) The establishment of fraudulent act

On the other hand, the debtor's act of disposal that reduces general property to make the lack of joint collateral or further deepens the shortage of joint collateral is a fraudulent act as it harms the creditor's interest, barring any special circumstances. According to the above basic facts, KimB's gift contract between the defendant and KimB on the apartment of this case (i.e., tax claim 000 won + OB loan 000 won) was reduced to 15,000 shares of EEEdd Co., Ltd., as the defendant's assertion, even if the value of 15,000 shares of EEd Co., Ltd. is recognized as won, as the defendant's donation of the apartment of this case, it constitutes a fraudulent act. Thus, KimB and the defendant's donation contract between KimB on the apartment of this case constitutes a fraudulent act.

3) Bad faith of KimB

In light of the following circumstances that can be recognized in addition to the purport of the entire pleadings, it is reasonable to view that KimB knew of the fact that the instant tax claim would be imposed through the person in charge of accounts of DB in the process of the National Tax Service’s investigation into the actual condition and the notice of taxation notice of EB Tax Office, ② in fact KimB donated the instant apartment to the Defendant on May 27, 201 on the day when the notice of taxation of the instant tax claim was given by EB from EB Tax Office on the day when the notice of EB was given on May 27, 2011, ③ EED shares are non-listed shares and it is difficult to determine the market price as non-listed shares. However, in light of the fact that 15,000 won owned by KimB is merely 75,00,000 won if they are converted into its face value to its market price, it is reasonable to deem that KimB knew knew of the fact that the instant apartment was in excess of its obligation

4) The defendant's duty of bad faith and restitution

Since the defendant's bad faith in fraudulent act is presumed to be the beneficiary's bad faith, the donation contract on the apartment of this case between KimB and the defendant should be revoked, and the defendant is obligated to implement the procedure for cancellation of ownership transfer registration on the apartment of this case to the KimB.

B. Judgment on the defendant's argument

1) Determination on the assertion that the instant taxation claim is unconstitutional

The Defendant’s imposition of income tax on constructive dividend is against the principle of substantial taxation, and it is against the principle of substantial taxation, and the Defendant’s imposition of income tax on constructive dividend is unconstitutional because it nationalizing all financial resources of KimB, the taxpayer, thereby infringing on the essence of property rights. However, it cannot be said that it goes against the principle of substantial taxation or infringes on property

2) Determination as to the assertion that KimB restored his/her financial ability

However, even if it was prejudicial to the creditor at the time of the act of disposal, if the debtor's right to revoke the fraudulent act is no longer likely to prejudice the creditor at the time of the conclusion of the fact-finding proceedings, the need to preserve the responsible property would no longer exist, and the creditor's right to revoke is extinguished. The fact that there is change in circumstances must be proved by the other party to the creditor's right to revoke (see Supreme Court Decision 2007Da54849, Nov. 29, 2007). Since the defendant asserted that the defendant's right to revoke the above apartment after KimB donated the apartment of this case to the defendant to recover 365,941,678 won from the FIE E.F. E. E. E. E., KimB received 365,941,678 won from F.F. E. F. E. E. 26, 2012, the defendant's right to revoke the creditor's right to revoke the fraudulent act cannot be reasonably acknowledged that the above money should be included in the above claim.

3) Defendant’s bona fide defense

The Defendant alleged to the effect that he was unaware of the existence of the instant taxation claim since KimB, the husband of the two children, obtained the instant dividend income as a family principal book, and that he was unaware of the existence of the instant taxation claim since he received the pre-announcement notice from a certified judicial scrivener after having requested the registration of ownership transfer of the instant apartment, and thus, he did not know of the existence of the instant taxation claim. If KimB added to the purport of the entire pleadings, on May 26, 2011, he was issued a certificate of personal seal impression and a certified copy of the resident registration necessary for the transfer of ownership of the instant apartment on May 27, 201, and the fact that the Defendant received the notice of tax scheduled imposition on KimB on May 27, 2011, each of these facts is insufficient to recognize that the Defendant was a bona fide beneficiary. However, there is no other evidence to acknowledge this otherwise. Rather, in full view of the following circumstances, ① Defendant and KimB as the husband of the instant apartment, and ② Defendant’s assertion that the instant apartment gift was made in bad faith due to the instant donation.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.