Revocation of Fraudulent Act

Before the Defendant filed a lawsuit seeking the revocation of the instant fraudulent act, KRW 00, which the Defendant sought the return by the revocation of the said fraudulent act, was already withdrawn by AA and returned to AA, which is the debtor. Therefore, there is no benefit to the Defendant’s lawsuit seeking the revocation of the deposit capital trust agreement and the return of value.

The contents of the judgment are the same as the attachment.

2017 Gohap17262 Revocation of Fraudulent Act

Korea

PPP external1

May 21, 2018

June 7, 2018

1. The plaintiff's conjunctive claim among the lawsuit of this case is dismissed.

2. The plaintiff's primary claim is dismissed.

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

Cheong-gu Office

The primary purport of the claim is to cancel the donation contract of KRW 395,00,000 on January 7, 2013 between the defendant and the non-party AAA, within the limit of KRW 337,791,290, and the defendant shall pay to the plaintiff 337,791,290 with 5% interest per annum from the day following the day when the judgment becomes final and conclusive to the day of complete payment.

Preliminary claim: The defendant and the non-party AA shall cancel the deposit ownership trust agreement concluded between the defendant and the non-party AA on the remittance of KRW 395,00,000 to the Nong Bank account within the limit of KRW 337,791,290, and the defendant shall pay to the plaintiff 337,791,290 with money calculated by the rate of 5% per annum from the day following the day when the judgment becomes final and conclusive to the day of complete payment.

1. Basic facts

A. Nonparty AA is the husband of the Defendant.

B. AA transferred 1,280,000 won on January 7, 2013 to BB and CCC, which is the only real estate owned by the principal (hereinafter referred to as “instant real estate”), and received full payment of KRW 750,00,000 as a check, from the said purchaser on November 28, 2012, the intermediate payment of KRW 130,000,000 on December 21, 2012, and the remainder of KRW 400,000,000 on January 7, 2013.

C. On November 18, 2012, AA deposited KRW 120,000,000, out of the down payment for the said purchase price, and KRW 395,000,000, out of the balance on January 7, 2013, in the account under the name of each of the Defendant (hereinafter “instant account”), and the remainder of KRW 765,000,000,000, out of the remainder of the purchase price, was fully used to repay the collateral security obligation and pay real estate brokerage expenses.

D. At the time AA deposited KRW 395,00,00 in the instant account on January 7, 2013, 2013, AA had accrued the aggregate of the value-added tax and global income tax for 2,875,010 (=851,900 won + 2,023,110 won) in 2012. The transfer of the instant real estate was scheduled to impose KRW 334,916,280 (=214,436,940 + 120,479,340) as a result of the transfer of the instant real estate, while active property did not have any property other than the deposit claim of KRW 10,266,260 in the Seongbuk Saemaul Fund.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 7, Eul evidence No. 1, the purport of the whole pleadings

2. Judgment as to the main claim

A. Summary of the plaintiff's assertion

AA made a donation to the Defendant by depositing KRW 395,00,000 out of the purchase price of the instant real estate into the instant account under the name of the Defendant. At the time of the donation, AA was liable for tax liability of KRW 337,791,290, such as value-added tax, global income tax, and capital gains tax imposed upon the transfer of the instant real estate, while active property was not more than KRW 10,266,260, and thus, AA was in excess of its liability. AA knowingly donated the said money to the Plaintiff with the knowledge that it would prejudice the tax obligor to be exempted from the disposition of delinquent local taxes due to delinquent national taxes, and the Defendant was aware of the fact. Accordingly, the said donation contract should be revoked within the limit of KRW 337,791,290, which is the Plaintiff’s preserved claim, and the Defendant is liable to pay KRW 37,791,290 as compensation for damages to the Plaintiff.

B. Determination as to the claims to be preserved for fraudulent act

1) In principle, a claim that may be protected by the obligee’s right of revocation should have arisen before an obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, as long as a transfer income tax claim is recognized as a preserved bond of the obligee’s right of revocation, there is a high probability that the claim is created at the time of the juristic act, and that the claim is created in the near future, and the possibility is realized in the near future, the claim may also become a preserved bond of the obligee’s right of revocation. The additional dues and increased additional dues under Articles 21 and 22 of the National Tax Collection Act are the kind of incidental tax imposed in the meaning of interest for arrears if national taxes are not paid by the due date without the due date for payment, and the amount is naturally created and finalized pursuant to Articles 21 and 22 of the same Act, so long as the transfer income tax claim is recognized as a preserved bond of the obligee’s right of revocation, the amount of the transfer income tax shall include the additional dues and increased additional dues incurred from the time when the arguments are closed in fact-finding (see, etc.).

2) Each transfer income tax claim that the Plaintiff determined and notified AA of the due date for payment from July 31, 2013 to September 7, 2016, each of which was determined and notified to AA, was established on November 28, 2012 when the Defendant concluded a sales contract for the instant real estate, and was highly probable as to the establishment of a claim for transfer income tax based on its legal relations in the near future. In fact, there was a high probability that the said claim for transfer income tax was established on the basis of the determination and notification of the said transfer income tax, and the taxation claim was established on the basis of the determination and notification of the said transfer income tax. As such, the claim for transfer income tax of KRW 334,916,280 in total,37,791,290 in total imposed on the transfer of the instant real estate can be deemed a claim for preservation of the instant fraudulent act.

C. Determination on fraudulent act

1) In order to have established a donation contract with respect to money remitted by the debtor to another person’s deposit account, it should be interpreted that, first of all, the debtor and the other person objectively agree with the intent of “donation” to grant the money remitted as such to another person ultimately belong to the third person and free of charge. The burden of proof as to such act of remittance has the creditor asserting that such act of remittance is a fraudulent act subject to creditor’s right of revocation.

(See Supreme Court Decision 2012Da30861 Decided July 26, 2012, etc.)

2) The fact that AA paid KRW 395,00,00 to the instant account under the name of 205 on January 7, 2013, from KRW 201 to KRW 205,00, KRW 200, KRW 200, KRW 200, KRW 390, KRW 200, KRW 206, KRW 200, KRW 200, KRW 96, KRW 30, KRW 206, KRW 20, KRW 96, KRW 30, KRW 20, KRW 20, KRW 96, KRW 30, KRW 20, KRW 96, KRW 30, KRW 20, KRW 96, KRW 20, KRW 96, KRW 30, KRW 20, KRW 96, KRW 30, KRW 20, KRW 96, KRW 300, KRW 20, KRW

It is reasonable to deem that AA was used in light of the fact that: (a) before January 7, 2013, the remaining money excluding the above KRW 249,850,181 has been completely managed and used by AA; (b) the source of funds deposited in the instant account was both AA and AA; and (c) the card price or the loan company’s repayment, which had been transferred before January 7, 2013, had been continuously transferred after January 7, 2013; and (d) the remaining money excluding the above KRW 249,850,181, was transferred to the Defendant for personal use; and (c) there is no evidence to deem that the Defendant transferred only the money excluding the above KRW 240,850,181, and there was no evidence to deem that the money deposited in the instant account was transferred to the Defendant for 00,000, and there was no objective consent between A and the Defendant for the use of the instant account.

It is difficult to deem that a gift contract was concluded. Therefore, the Plaintiff’s primary claim on this premise is without merit without examining further claims.

3. Judgment on the conjunctive claim

A. Summary of the plaintiff's assertion

AA entered into a title trust agreement with the Defendant on the instant account, and deposited KRW 395,00,000 out of the purchase price of the instant real estate into the instant account. The above title trust agreement was concluded with the Defendant with the knowledge that it would prejudice the creditor while it exceeded the obligation, and the Defendant also knew of the fact. As such, the above title trust agreement on the deposit account should be revoked within the limit of KRW 337,791,290, which is the Plaintiff’s preserved claim, and most of the deposited money was withdrawn, so the Defendant is obligated to pay the Plaintiff KRW 37,791,290, as compensation for value.

B. Determination

1) The restitution following the cancellation of a fraudulent act shall be based on the return of the object itself, and it shall be based on the return of value exceptionally only on cases where it is impossible or considerably difficult. The title trustee is obligated to transfer the right acquired by a contract with the other party in relation to the title truster to the title truster. In a case where a title trust contract is concluded between the contributor and the deposit holder, the title truster is obligated to transfer the right to return the deposit to the financial institution upon the request of the contributor. Thus, where the title truster’s cancellation is made as a fraudulent act, the restitution following the cancellation shall be made by transferring the deposit claim against the financial institution to the donor and ordering the financial institution to notify the transfer (see Supreme Court Decision 2014Da212438, Jul. 23, 2015).

Meanwhile, in a case where a creditor filed a lawsuit against a beneficiary for the revocation of a fraudulent act and restitution of the said fraudulent act on the ground of a debtor's fraudulent act, and the creditor has already rescinded or terminated such fraudulent act while the lawsuit is pending, and the creditor has returned to the debtor by punishing the property for which the revocation of such fraudulent act was sought, barring any special circumstances, the purpose of the lawsuit for revocation of the fraudulent act has already been realized, and the benefit of protecting the rights by such lawsuit would no longer exist, and such legal principle is equally valid in a case where the property for which return was sought by the revocation of the fraudulent act was returned to the debtor before the lawsuit for revocation of the fraudulent act was filed (Supreme Court en banc Decision 2012Da952 Decided May 21,

2) The Defendant received KRW 395,00,00 from the instant account on January 7, 2013 pursuant to the Deposit Shares Trust Agreement with AA, and there is no dispute over the fact that the said money was fully withdrawn from the instant account. According to the above legal principle, even if the obligor deposited the money in the account under the name of the beneficiary pursuant to the deposit account under the deposit account, if the obligor withdraws and uses all the money deposited in the account under the name of the beneficiary, it would result in the same effect as the obligor returned the property that the obligor seeks return upon the revocation of the fraudulent act, and thus, the benefit to seek revocation of the trust of the deposit owner and return of the value would be no longer exist. Thus, not AAA but the Defendant’s withdrawal of all KRW 395,00,000 deposited in the instant account, the Plaintiff may have the interest to seek the return of the value to the Defendant.

3) Examining the details of transactions of the instant account: (a) most of the transfer details of the instant account to and from the account under the name of AA, or the details of deposit and withdrawal of money related to AA; (b) it is difficult to confirm that the Defendant used the instant account, such as deposit or withdrawal of money, etc.; (c) it is reasonable to deem that the person who had been managing and using the instant account before January 7, 2013 was AA; (b) it is apparent that at least 249,850,181 out of the aforementioned KRW 395,00,00,000 was used; and (c) it is reasonable to deem that the remainder was also managed and used by AA; or that the source of money deposited in the instant account was all AA; and (d) it is reasonable to deem that AA had already been used by the Defendant’s return to and return to the said account before the Defendant’s revocation of the instant fraudulent act lawsuit. Accordingly, the Defendant’s return to and return to the account of 3005,00, the Plaintiff.

4. Conclusion

Therefore, the part of the plaintiff's conjunctive claim is unlawful and dismissed, and the main claim is dismissed as it is without merit. It is so decided as per Disposition.