Ulsan District Court-2014- Gohap-17448 (2015.03.19)

donation of property owned by a delinquent taxpayer shall constitute a fraudulent act.

It is recognized as a fraudulent act detrimental to the creditor that a delinquent taxpayer transferred real estate and reported the transfer income tax on such real estate, and donated his or her current property to his or her children without paying the tax.

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

2015Na5202 Revocation of Fraudulent Act

Korea

OO

Ulsan District Court Decision 2014Gahap17448 Decided March 19, 2015

November 4, 2015

November 25, 2015

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 ○○○○○○○ on March 8, 2012 between the Defendant and the obligor OAA (the birth on May 1, 1926, ○○○○○○○○ on March 1, 1926, ○○○○○○○○○○○ on the same day) and each contract of ○○○○○○○○○ on the same day shall be revoked. The Defendant shall pay to the Plaintiff ○○○○ and the amount calculated by the rate of 5% per annum from the day following the day this judgment became final

2. Purport of appeal

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

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is that the reasoning for this case is the same as the reasoning for the judgment of the first instance, except for the addition of “the additional matters to be determined” under the court’s decision of the first instance. Therefore, it is acceptable in accordance with the main sentence of Article 420

○ Additional Determinations

A. Determination as to the assertion that the AA does not have an intention of deception

1) The defendant asserts to the effect that, although the transfer income tax from the act of transferring real estate is not imposed or even if it is imposed, the transfer income tax is considered to have been reduced or exempted considerably, it shall not be recognized as an intention of deception.

2) The intention of deception refers to that the obligor should not prejudice the obligee in doing a juristic act. Here, the phrase “Ch” is not intended or intended, and it is sufficient to be a simple perception. Ultimately, the intention of deception is to recognize the fact that the obligee’s risk of being unable to receive reimbursement due to a lack of joint security arises due to the shortage of joint security, and such recognition is sufficient in relation to the general obligee, and it does not require the recognition that it would prejudice a specific obligee (see, e.g., Supreme Court Decisions 97Da57320, May 12, 1998; 2007Da17741, Mar. 24, 201).

3) In addition to the above legal principles as seen earlier, it is determined that in the instant case, OrA recognized the circumstances that the Plaintiff and other creditors were at risk of making it difficult to receive the repayment of claims due to the instant gift contract.

Therefore, the defendant's above assertion is without merit.

B. Judgment on the defendant's bona fide defense

1) Meanwhile, the defendant asserts to the effect that since he did not know about the specific contents of the status of the OA’s property at the time of the instant donation contract, the defendant’s bad faith should not be presumed merely because he was in a subordinate relationship with the OA.

2) However, in a lawsuit seeking revocation of a fraudulent act, the beneficiary is liable to prove that he/she is in bad faith with respect to the fact that he/she is acting in bad faith. In cases where an obligor’s act of disposal of property constitutes a fraudulent act, it shall be based on objective and acceptable evidence, etc. to acknowledge that the beneficiary was acting in good faith at the time of the fraudulent act, and it shall not be readily concluded that the beneficiary was acting in good faith as at the time of the fraudulent act or the preceding act solely on the unilateral statement of the obligor or beneficiary or on the statement that is merely a third party’s drilling (see, e.g., Supreme Court Decisions 2006Da5710, Apr. 14, 2006; 2014Da237192, Jun. 11, 2015).

3) In addition to the above legal principles as seen earlier, the Defendant’s assertion and submitted evidence alone is insufficient to recognize that the Defendant, a beneficiary, is the good faith, and there is no other evidence to support the above.

Therefore, the defendant's bona fide defense is without merit.

2. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is justified on the grounds of its conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.