It is highly probable that a preserved claim will accrue in the near future.

Since there is no evidence to prove the loan between husband and wife, the amount deposited to the spouse is the result of the gift contract and the real estate is highly probable to establish the tax claim due to the transfer of real estate, the tax claim constitutes the preserved claim of the obligee's right

Article 30 (Cancellation of Fraudulent Act) of the National Tax Collection Act

Incheon District Court 2014Gadan224430 Revocation of Fraudulent Act

Korea

KimA

December 10, 2014

January 14, 2015

1. The contract of gift amounting to KRW 66,00,000, which was concluded on December 28, 2012 between the defendant and the headB shall be revoked.

2. The defendant shall pay to the plaintiff 6,00,000 won with 5% interest per annum from the day following the day when this judgment became final and conclusive to the day of complete payment.

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

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or acknowledged in full view of the contents of Gap evidence 1 through 5, Gap evidence 6-1 through 3, Gap evidence 7-1 through 3, and Gap evidence 8 through 12.

(a) The plaintiff's duty payment notice;

1) On December 26, 2012, the headB transferred 2261-1 and 30,092m2 (hereinafter referred to as “instant real estate”) a lot of 4 lots, and reported the transfer income tax on February 27, 2013.

2) On May 10, 2013, the director of the DD Tax Office, under the Plaintiff’s control, notified the headB of May 10, 2013 to pay capital gains tax of KRW 83,957,480 (hereinafter “instant tax claim”) on May 31, 2013 (hereinafter “instant tax notice”).

3) As of April 30, 2014, the headB shall delay the capital gains tax of KRW 95,543,520 (including additional charges) as of April 30, 2014.

payment is made.

B. Disposition, etc. of the real estate of this case

1) On December 20, 2012, 200, 400,510,000 won for the instant real estate to the Korea Rural Community Corporation.

Upon entering into a sales contract for sale, 76,288,460 won remaining after deducting the amount of national taxes in arrears and the amount of collateral security from the said construction project, was transferred to its own account (hereinafter referred to as “instant account”) (40,051,000 won on December 20, 2012, and 36,237,460 won on December 26, 2012).

2) On December 28, 2012, the headB sent KRW 3,000,000 to the Defendant, the spouse, from the instant account on December 28, 2012

금하였고, 73,000,000원을 출금하여 수표를 발행(10,000,000원권 7매, 1,000,000원권 3매)한 후 위 수표를 피고에게 교부하였으며, 위 수표 중 40,000,000원은 2012. 12. 28. 피고 소유인 인천 ㅇ구 ㅇㅇ동 319-5ㅇㅇㅇㅇㅇㅇ 에이동 202호의 임차인 김EE에게 전세보증금반환을 위하여 지급되었고, 위 수표 중 23,000,000원은 2013. 1. 2. 피고 소유인 인천 ㅇ구 ㅇㅇ동 319-5ㅇㅇㅇㅇㅇㅇ 비동 301호의 임차인 남EE에게 전세보증금반환을 위하여 지급되었다.

C. Property, etc. around December 28, 2012 by the headB

1) 장BB의 2012. 12. 28. 무렵의 적극재산은 488,127,000원(= 인천 ㅇ구 ㅇㅇ동

1541-12 대 151.8㎡의 시가 101,695,000원 + 인천 ㅇ구 ㅇㅇ동 1540-9 대 319.4㎡의 시가 386,432,000원)이다.

2) On December 28, 2012, 200 won 615,00,000 for small property around December 28, 2012 by the headB (or Jung-gu Agricultural Cooperatives)

It is a loan obligation for a loan.

2. Determination

(a)the existence of preserved claims;

First, regarding the existence of the Plaintiff’s claim to be preserved against B/B, it is necessary to consider that the claim to be protected by the obligee’s right of revocation was, in principle, arising before the act was committed. However, there is high probability that the legal relationship, which is the basis of the establishment of the claim, has already occurred at the time of the fraudulent act, and that the claim has been established in the near future. In fact, where a claim has been realized in the near future, the claim may also become preserved claim. This is based on the purport of the obligee’s right of revocation system that the obligor’s joint security reduction cannot be permitted from an equitable and moral point of view. In so doing, “the legal relationship, which serves as the basis of the establishment of the claim” is not limited to the legal relationship between the parties, but is likely to constitute a quasi-legal relationship or fact-finding, etc., which is established by the Plaintiff’s claim to the Defendant at the time of its establishment (see, e.g., Supreme Court Decision 2002Da42957, Nov. 8, 2002).

Next, as to the nature of the act that the headB delivered KRW 66,00,000 to the Defendant, the key issue of the instant case, the Plaintiff asserts that it is a gift contract, and the Defendant asserts that it is the repayment of the obligation owed by the headB to the Defendant.

According to the evidence No. 4, the above remittance act is not recognized as a lending act, in light of the fact that the defendant remitted 107,000,000 won to the account of the headB on August 8, 2002, and 20,000 won on July 1, 2003, but the defendant and the headB were married, and the defendant and the headB paid only 66,00,000 won, not all of the remittance amount after the lapse of 10 years from the above remittance date, and the defendant did not submit a contract or a loan certificate, etc. to recognize the lending. In light of the fact that the above remittance act is not recognized as a lending act, and the delivery of 66,00,000 won to the defendant by the headB to the defendant as a result of a donation contract.

Furthermore, as to whether the above donation contract constitutes a fraudulent act, the health room and the prior action

For example, around December 28, 2012, the gift contract was concluded, and around December 28, 2012, the headB was in excess of the obligation, and even if the Plaintiff was in the status to pay the above tax liability, the Defendant

The donation of KRW 66,00,000 is an act detrimental to the plaintiff, who is the creditor, barring special circumstances. In such a case, the defendant is presumed to have known that the above donation contract would prejudice the plaintiff, who is the creditor of the Chapter BB.

C. Revocation of fraudulent act

Therefore, between the defendant and the headB, the contract of donation of KRW 66,000,000 entered into on December 28, 2012 between the defendant and the headB

The defendant is obligated to pay to the plaintiff 6,00,000 won and damages for delay calculated by the rate of 5% per annum under the Civil Act from the day following the day when the judgment became final and conclusive to the day when the full payment is made.

3. Conclusion

If so, the plaintiff's claim is reasonable and acceptable.