Sub-Support-2017-Ban-20861 (2018.03)

The debtor's disposal of the debtor's property that deepens the excess of debt constitutes a fraudulent act.

The act of causing excess of obligations due to the act of disposal of the debtor's responsible property after the establishment of the tax liability against the taxation claimant shall be considered as fraudulent act.

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

2018Na47080 Revocation of Fraudulent Act

Korea

Park AA

Busan District Court Decision 2017Gadan208661 Decided April 3, 2018

October 17, 2018

November 7, 2018

1. The defendant's appeal is dismissed.

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

1. Purport of claim

별지 목록 기재 부동산 중 각 1/2 지분(이하 '이 사건 부동산'이라 함)에 관하여, 피고와 박BB 사이에 2015. 12. 29. 체결된 증여계약을 취소한다. 피고는 박BB에게 이 사건 부동산에 관하여 부산지방법원 동부지원 남부산등기소 2015. 12. 30. 접수 제●●●●●●호로 마친 소유권이전등기의 말소등기절차를 이행하라.

2. Purport of appeal

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

1. Determination as to the cause of claim

(a) Facts of recognition;

1) The Plaintiff’s establishment of a taxation claim against B/B

A) On October 20, 2015, 2015, ParkB sold knives knives knives knives knives knives knives knives knives knives knives knives- knives knives knives knives knives knives knives knives kn

B) Accordingly, on December 1, 2016, the head of the Suwon Tax Office notified ParkB of the decision to rectify capital gains tax to KRW 95,086,993. However, ParkB did not pay the said tax, and the amount of arrears up to June 7, 2017, which was at the time of the filing of the instant lawsuit, until June 7, 2017, including the increased tax, was KRW 103,64,790 (hereinafter “instant tax claim”).

(ii) a donation contract between ParkB and the Defendant;

박BB는 2015. 12. 30. 딸인 피고에게 유일한 재산인 이 사건 부동산에 관하여 같은 달 29.자 증여(이하 '이 사건 증여계약'이라 함)를 원인으로 하여 부산지방법원 동부지원 남부산등기소 접수 제●●●●●●호로 각 소유권이전등기를 경료하여 주었음.

[Grounds for recognition] The descriptions of Gap evidence Nos. 1 through 6, the purport of the whole pleadings

B. Determination

1) Formation of preserved claims

A) In principle, it is required that a claim protected by the obligee’s right of revocation has arisen prior to the commission of an act that can be seen as a fraudulent act. However, at the time of such fraudulent act, there is a high probability that there exists a legal relationship which is the basis of the establishment of a claim, and that the claim is established in the near future. In the near future, where a claim has been created by realizing the probability thereof in the near future, such claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2010Da68084, Jan. 13, 2011).

B) According to the facts found earlier, although no notice of transfer income tax on the real estate subject to reporting was given at the time of the conclusion of the instant gift contract (on December 29, 2015), ParkB had high probability that the underlying legal relationship on the occurrence of the transfer income tax has already occurred as the real estate subject to reporting on October 20, 2015, which was prior to the conclusion of the said gift contract, and the said claim is established in the near future by the report by ParkB and the notice of transfer income tax by the head of the Suwon Tax Office. The instant tax claim constitutes the preserved claim by the obligee’s right of revocation.

(ii)the intent to commit fraudulent acts and to commit fraud;

A) The debtor's act of selling real estate, which is the only property of the debtor, to change it into money easily for consumption or to transfer it to another person free of charge, constitutes a fraudulent act, barring any special circumstance, barring any special circumstance, it is presumed that the debtor's intent of deception is presumed to be a fraudulent act (see, e.g., Supreme Court Decision 2000Da41875, Apr. 24, 2001). Therefore, the donation by ParkB to the defendant, who is his sole property, constitutes a fraudulent act in relation to the plaintiff. In this case, the debtor's intent to harm ParkB is recognized.

B) As to this, the defendant asserts that he is a bona fide beneficiary since he was unaware of the existence of the instant taxation claim, but he is presumed to be the beneficiary's bad faith in a lawsuit seeking revocation of fraudulent act, so he is responsible to prove his good faith in order to be exempted from his responsibility (see, e.g., Supreme Court Decision 2007Da74621, Jul. 10, 2008). Thus, there is no other evidence to support that the defendant was a bona fide beneficiary at the time of the instant gift contract, and the above

(iii) the revocation and restitution of fraudulent act;

부동산에 관한 법률행위가 사해행위에 해당하는 경우에는 그 사해행위를 취소하고 소유권이전등기의 말소 등 부동산 자체의 회복을 명하는 것이 원칙인바(대법원 2014. 6. 26. 선고 2012다77891 판결 등 참조), 피고와 박BB 사이에 이 사건 부동산에 관하여 2015. 12. 29. 체결된 이 사건 증여계약은 사해행위에 해당하므로 취소되어야 하고, 이에 따른 원상회복으로 피고는 박BB에게 위 부동산에 관하여 부산지방법원 동부지원 남부산등기소 2015. 12. 30. 접수 제●●●●●●호로 마친 소유권이전등기의 말소등기절차를 이행하여야 할 의무가 있음.

2. Conclusion

If so, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit.