Fraudulent act of entering into a donation contract and issuing cashier's checks under excess of debts;

The act of a corporation that defaulted corporate tax and donated cashier's checks to the Defendants may be deemed to be a fraudulent act detrimental to creditors, and each gift contract shall be revoked within the scope of the tax claim and compensated for the value.

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

1. A. A. Revocation of the donation contract between Defendant Kim ○ and ○○○○, Inc. on March 9, 2006 within the limit of KRW 232,00,000.

B. Defendant Kim ○ shall pay to the Plaintiff 232,00,000 won with 5% interest per annum from the day following the day this judgment became final to the day of complete payment.

2. A. A. Revocation of the contract of donation in March 9, 2006 between Defendant Kim Jong-tae and ○○○○○○○○, Inc. within the limit of KRW 62,885,280.

B. Defendant Kim Jong-tae shall pay the Plaintiff 62,885,280 won with 5% interest per annum from the day following the day this judgment became final to the day of full payment.

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

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

다음 사실은 당사자 사이에 다툼이 없거나 갑 제1, 2, 5, 6, 8호증, 갑 제3호증의 1 내지 3, 갑 제4호증의 1, 2의 각 기재 및 증인 김■■의 일부 증언에 변론 전체 의 취지를 종합하면 이를 인정할 수 있다.

A. From October 15, 2004 to ○○○○, a corporation established by Kim Jong-dong (hereinafter referred to as “○○○○”) and Kim Jong-si (hereinafter referred to as “○○○○”) submitted a report on the operation of a golf practice range from October 15, 2004 to ○○○○○ on February 9, 2006, selling the said golf practice range in KRW 3,420,00,000 due to business difficulties, and the report on the closure of the business on March 8, 2006 to ○○○○○○○, a corporation established by Kim Jong-si (hereinafter referred to as “○○”) and the tax base and the amount of corporate tax for each business year (from January 1, 2006 to March 8, 2006).

B. Of KRW 1,520,00,000, 1,520,000 which was actually received from ○○○○ pursuant to the above sales contract, ○○○ issued to Defendant Kim○○○○ on March 9, 2006 each face value of KRW 10,720,000, 3,720,000, and 232,000,000, and then donated a cashier’s checks to Defendant Kim○○○○ on the same day (hereinafter “each of the instant donation contracts”). The same day, ○○○○ issued a cashier’s checks to Defendant Kim○○○ on the same day.

C. The ○○○○○ issued a notice of payment of corporate tax of KRW 276,627,860 on September 4, 2006 with the due date of September 30, 2006 from the ○○○○ Tax Office, which was due date of September 30, 2006, but did not pay it, thereby resulting in an amount in arrears including additional dues in KRW 294,885,280.

D. At the time of each gift contract of this case, ○○ was in excess of the obligation.

2. The assertion and judgment

(a)the existence of preserved claims;

Although it is required that a claim that can be protected by the obligee’s right of revocation has arisen prior to the commission of an act that could be viewed as a fraudulent act in principle, there has already been legal relations that serve as the basis of the establishment of the claim at the time of such fraudulent act, and there is high probability that the claim should be established in the near future based on such legal relations. In the near future, where a claim has been created due to its probability in reality in the near future, such claim may also become a preserved claim (see, e.g., Supreme Court Decision 2005Da37821, Mar. 23, 2001)

According to the facts acknowledged above, the plaintiff's tax claim was caused on September 4, 2006 by the decision of imposing corporate tax on ○○○○ and the notice of payment of corporate tax. However, the above corporate tax was related to the business year of 2006 (from January 1, 2006 to March 8, 2006) of ○○○○○○○, and each gift contract of this case had already been formed as of March 9, 2006, and there was a high probability that the above corporate tax would be imposed on ○○○○, which had already been formed as of March 9, 2006. Since ○○○ submitted the report of corporate tax base and tax amount on June 20, 2006, the plaintiff's right to revoke the plaintiff's tax claim becomes a preserved bond.

B. Whether the fraudulent act was established

(1) The act of ○○○○, which was in excess of the obligation as seen earlier, concluded each of the instant gift agreements with the Defendants and donated the checks to the Defendants, constitutes a fraudulent act by reducing joint security in relation to the Plaintiff, an obligee, barring special circumstances. In addition, in light of the timing and circumstances of each of the instant gift agreements, the relationship between ○○○ and the Defendants, and ○○○○○○’s financial status at the time, etc., ○○○ appears to have known that each of the instant gift contracts was detrimental to the obligees, and in such a case, the Defendants, a beneficiary, was presumed

(2) On March 9, 2006, the Defendants asserted that the Defendants received the above check from ○○○○○ on March 9, 2006 that the Defendants received part of each loan claim against ○○○○○.

살피건대, 을 제5 내지 7호증의 각 1, 2의 각 기재에 의하면, 피고 김○○이 2002. 11. 7.부터 2004. 9. 16.까지 합게 5억 800만원을, 피고 김□□의 동생 김■■이 2004. 3. 31. 9,300만원을, 김■■의 처 김◇◇이 2004. 7. 5. 9,000만 원을 각 김XX, 이○○, 피고 김□□에게 ○○○ 골프연습장의 건립자금으로 대여 한 사실이 인정되나, 이는 ○○○이 2004. 10. 15. 설립되기 이전에 이루어진 것 으로서 동업자였던 김XX, 이○○, 피고 김□□에 대한 대여금이라 할 것이고, 이를 곧바로 ○○○에 대한 대여금이라고 볼 수는 없으므로 피고들의 위 주장은 이유 없다.

(c) Reinstatement;

Therefore, each of the gift contracts of this case shall be revoked within the scope of KRW 294,885,280 of the Plaintiff’s tax claims. As the Plaintiff’s claim, the gift contract of March 9, 2006 between Defendant Kim Jong-○ and ○○○○, Inc., shall be revoked within the limit of KRW 232,00,000, and the contract of March 9, 2006 between Defendant Kim Young-tae and ○○○, Inc., shall be revoked within the limit of KRW 62,885,280 (= KRW 294,885,280 – KRW 232,00; KRW 232,00,00; and Defendant Kim Jong-○ and KRW 62,885,280; and damages for delay shall be paid at the rate of KRW 5% per annum from the next day of the judgment to the date of full payment.

3. Conclusion

Therefore, the plaintiff's claim against the defendants shall be accepted in its entirety on the grounds of its reasoning, and it is so decided as per Disposition.

[Tgu High Court Decision 2008Na659 (Law No. 13, 2008)]

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The contract of donation between Defendant ○○○ and ○○○ Co., Ltd. on March 9, 2006 is revoked within the limit of KRW 232,00,000. Defendant Kim○○ shall pay to the Plaintiff 232,00,000 and 5% interest per annum from the day following the day this decision became final to the day of full payment.

2. Purport of appeal

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

The reason why this court is used is the same as that of the first instance judgment, and therefore, it is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

If so, the judgment of the first instance court is justifiable, and the defendant's appeal is dismissed as there is no ground.