to prove that the person was not in bad faith when the person was presumed to have been aware of his will;

If an obligor donated his/her property to another person in excess of his/her obligation, unless there are special circumstances, it would be fraudulent act, the obligor's intention is presumed, and the burden of proving that the obligor did not have bad faith is the beneficiary, but there is no evidence to acknowledge it.

2012 Gohap 540219 Revocation of Fraudulent Act

Korea

KimAAA et al.

May 7, 2013

May 23, 2013

1. The revocation of each gift contract between KimBB and the Defendants, such as the separate sheet of donation.

2. The plaintiff, and

(a) The defendant QA shall have 000 won and 5% interest per annum with respect to them from the day following the day when the judgment of this case is finalized to the day when they are fully repaid.

B. Defendant JeonCC shall pay 00 won and 5% interest per annum from the day following the day when the judgment of this case became final and conclusive to the day of full payment.

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

The same shall apply to the order.

1. Determination as to the cause of claim

(a) Facts of recognition;

The following facts may be admitted by adding the whole purport of the pleadings to each entry in Gap and Gap evidence (including each number) that there is no dispute between the parties or between them.

1) On November 19, 2010, KimB sold OOO 000-dong 0000-dong 00000 (hereinafter referred to as the “instant apartment”) located in Jung-gu Seoul and Jung-gu, Seoul (OO 000-dong 0000) to Ed and ParkE, and completed the registration of ownership transfer with respect to the instant apartment on December 30, 2010 to Ed and ParkE.

2) From November 19, 2010 to December 30, 2010, KimO received KRW 000 from Lee OO and ParkE under the above sales contract, and then, during the period from November 19, 2010 to December 30, 2010, he donated each donation to Defendant KimAAA and KimBB, who is the father of KimBB from November 19, 2010 to December 30, 201, respectively (hereinafter “each donation contract”).

3) Even after the transfer of the instant apartment, KimB did not report and pay the transfer income tax following the transfer of the instant apartment, and the director of the Central Tax Office notified the said transfer income tax by setting the time limit on June 30, 2012, but KimB did not pay the said transfer income tax until the closing date of the argument in the instant case. The amount of national tax in arrears against the Defendant at YB as of November 26, 2012, which was the filing date of the instant apartment, is KRW 00,000 (=00 won +000 won) (hereinafter referred to as “tax claim or tax obligation of this case”) (as above, tax claim or tax obligation of KRW 00,000, such as the transfer income tax following the transfer of the instant apartment, is hereinafter referred to as “tax obligation of this case”).

4) At the time of November 19, 2010, KimB had a deposit claim against Han Bank amounting to KRW 000,000, a deposit claim against Han Bank, and a deposit claim against Han Bank. At the time of December 29, 2010, KimB had a deposit claim amounting to KRW 000,000 against Han Bank, and a deposit claim amounting to KRW 000,000 against Han Bank.

5) The Defendants used KRW 000,000, donated by KimBB, as the purchase fund of KRW 000,000,000, OOOO apartment located in one parcel, Jung-gu, Seoul.

B. Relevant legal principles

1) As to preserved claims

In principle, a claim that can be protected by the obligee's right of revocation should have arisen before the obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee, but it is highly probable that at the time of the juristic act, there has already been a legal relationship that serves as the basis for the establishment of the claim, and that the claim would be created based on the legal relationship in the future, and that claim may also become a preserved claim for the obligee's right of revocation in the near future (see, e.g., Supreme Court Decision 2006Da66753, Jun. 29, 2007).

2) As to the intent to commit fraudulent act and to injure himself

A) In determining whether an obligor’s insolvency, which is the requirement to exercise the obligee’s right of revocation, is a small property subject to a fraudulent act, in principle, it is required that the act would have occurred prior to the commission of the act, but there is a high probability that the legal relationship which is the basis of the establishment of the obligation has already been established at the time of the fraudulent act, and that the obligation is established in the future, depending on the legal relationship in which the obligation is established in the near future, and that the risk has been realized and the obligation has been established in the near future, the obligation should also be included in the obligor’s small property (see, e.g., Supreme Court Decision 2010Da68084, Jan.

B) If a debtor donated his/her own property to another person under excess of his/her obligation, such act would constitute a fraudulent act unless there are special circumstances (see, e.g., Supreme Court Decision 2005Da28686, May 31, 2007). In this case, the debtor's intent for the harm is presumed, and the burden of proving that the person who donated the debtor's property did not have bad faith is the beneficiary (see, e.g., Supreme Court Decision 2006Da550, Dec. 11, 2008).

C. Determination

1) Determination as to the existence of the preserved claim

The fact that the taxation claim of this case against KimB, the preserved claim of this case, occurred after the conclusion of each gift contract of this case, as seen earlier, is added to the overall purport of each of the evidences cited earlier, and the following circumstances, i.e., the legal relationship that forms the basis for the occurrence of the taxation claim of this case was already established by transferring the apartment of this case to LeeB, LeeB, before entering into each of the gift contracts of this case with the defendants, and by transferring the apartment of this case to Lee Jong-B, the defendants, before entering into the gift contract of this case. ② The KimBB seems to have high probability about the establishment of the taxation claim of this case in the near future at the time of entering into each of the gift contracts of this case. ③ In light of the fact that the possibility was realized in the near future and the possibility was established, the taxation claim of this case of the plaintiff can be the preserved claim of the obligee's right of revocation.

2) Determination on the intent to commit fraudulent act and to injure himself/herself

A) Since it is reasonable to see that KimB entered into a contract of this case on November 19, 2010, November 2010, 2010, and November 23, 2010, and December 30, 2010, each contract of this case was concluded at the same time with KimB, KimB, as one of the parties to the contract, and as one of the parties to the contract, it is reasonable to see that the contract of this case was made at the same time and at the same time, one of the parties to the contract, and whether the requirements for fraudulent act were met should be determined at the time of entering into the contract of this case as of November 19, 200, which was the first legal act, at the time of entering into the contract of this case with KimB, and at the time of entering into one of the parties to the contract of this case with KimB, at 00 won, and at the time of entering into one of the parties to the contract of this case with the defendant KimB, as 000 won deposit claims of this case.

B) The KimB donated his property to the Defendant KimB, the father of KimB, and the Defendant JeonCC, the wife of the KimB, who was the father of the KimB. According to the above legal principles, barring any special circumstance, each of the gift contracts in this case is presumed to constitute a fraudulent act by making it to the Plaintiff, the creditor of the SB, and the Defendants, the debtor, the deceased will of the KimBB and the beneficiary, are presumed to be the bad faith.

3) Sub-decisions

Therefore, in order to preserve the taxation claim of this case at the request of the plaintiff, who is the creditor of KimB, barring any special circumstance, the contract for each of the gift of this case shall be cancelled, and the plaintiff shall be restored to its original state, and the defendant SAC shall be 00 won, and the defendant PCCC shall be 00 won and each of the above amounts shall pay damages for delay at the rate of 5% per annum as provided by the Civil Act from the day following the date the judgment of this case becomes final

2. Determination as to the defendants' defense

A. The defendants' defense

The defendant Jeon-CCC, a wife of KimB, has collected the monthly salary of Kim*, a child, for several years, and completed the registration of ownership transfer of the above apartment in the name of the defendant JeonCC instead of unmarried KimOOOO, an unmarried 000, located in the Gyeyang-gu Incheon OOOOOO apartment, and completed the registration of ownership transfer of the above apartment in the name of the above apartment in lieu of the above apartment. The defendants and KimBB consider that the defendant JeonCC was not the actual owner of the above apartment, and as at the time of the transfer of the apartment of this case, KimOO was considered to be the one house owner at the time of the transfer of the apartment of this case, the transfer income tax following the transfer of the apartment of this case was not reported and paid. Accordingly, the defendants did not know that each gift contract of this case was an act of evading the tax debt of this case at the time of the conclusion of each gift contract of this case.

B. Determination

In a lawsuit seeking revocation of a fraudulent act, the fact that the beneficiary was unaware of the fact that the beneficiary was a fraudulent act is proved to have the burden of proof, and when recognizing that the beneficiary was bona fide at the time of the fraudulent act, it should not be concluded that the beneficiary was bona fide at the time of the fraudulent act (see, e.g., Supreme Court Decision 2004Da61280, Jul. 4, 2006), and that the defendants and KimB would have been liable for the tax liability of this case, such as capital gains tax, and that there was no evidence to support that there was no risk that general creditors would not be able to obtain reimbursement of claims due to lack of common security of KimB, and that there was no evidence to support that the above apartment title trust agreement was invalid under the name of the former owner of the apartment title trust agreement, even if the former owner of the apartment title trust agreement was made under the name of KimB and the former owner of the apartment title trust agreement, and that there was no evidence to support that the above ownership registration was invalid under the name of the former owner of the apartment title trust agreement.

3. Conclusion

Then, the plaintiff's claim against the defendants is with merit, and all of them are accepted, and it is decided as per Disposition.