the debtor's act of donation to the wife of another real estate that is the sole property of the debtor to transfer such real estate to another

the act of making a donation to the wife of another real estate in lieu of transferring such real estate, which is the sole property of the debtor, constitutes a fraudulent act reducing liability property in relation to the obligee.

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

2013 Gohap 33546 Revocation of Fraudulent Act

Korea

Park AA

May 15, 2015

July 3, 2015

1. The gift contract concluded on January 31, 201 between the defendant and KimB (OO-O-O-O-O-O-O-O-O-dong O-O-O-O-dong O-O-O-O-dong O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-dong

2. The defendant shall pay to the plaintiff 488,144,410 won with 5% interest per annum from the day following the day 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

A. On January 31, 201, KimB entered into a contract with the KimCC for the exchange of the OOO-O land and building (hereinafter referred to as "OO-O real estate") and each of the real estate listed in the separate sheet owned by KimCC (hereinafter referred to as "each of the real estate in this case") (hereinafter referred to as "the instant contract"). However, KimCC immediately transferred the ownership of each of the real estate in this case to the defendant, who is the wife of KimB, and accordingly, KimB transferred the ownership of the real estate in this case to the defendant on February 14, 201, while KimCC transferred the ownership of the O-dong real estate in the future of the KimCC on February 18, 2011.

C. At the time of entering into the instant contract, KimB had a tax obligation equivalent to KRW 149,875,00 against the Plaintiff. However, the details are KRW 9,079,760 of the global income tax in 2005, KRW 523,780 of the global real estate tax in 2008, KRW 805,360 of the global real estate tax in 2008, KRW 129,953,080 of the global real estate tax in 2009, KRW 339,190 of the global real estate tax, KRW 2,266,200 of the global income tax, KRW 3,795,960 of the value-added tax, KRW 2,708,60 of the global income tax in 2010, KRW 403,070 of the value-added tax.

D. KimB did not report and pay the transfer income tax on the disposal of OB real estate upon entering into the instant contract. As such, on June 8, 2012, the director of the Gangseo-gu Tax Office under the Plaintiff’s control imposed the transfer income tax on KimB, and through litigation, the transfer income tax of KRW 338,269,410 (hereinafter “the transfer income tax of this case”) was finally determined.

[Reasons for Recognition] Gap evidence Nos. 1, 4, 6, 7, 8 (including each number), Eul evidence Nos. 2 and 8, the purport of the whole pleadings

2. Determination

A. Whether a donation contract is concluded

Since KimB, through the instant contract, exceeded the ownership of the OB real estate and the Defendant acquired the ownership of each of the instant real estate from KimCC, it is reasonable to evaluate that KimB made a donation to the Defendant regarding each of the instant real estate (hereinafter “instant donation contract”).

(b) the existence of preserved claims;

(1) There is no doubt that the claim of KRW 149,875,00 against the Plaintiff KimB, which occurred prior to the conclusion of the instant contract, becomes a preserved claim in the instant lawsuit seeking revocation on the ground that the instant gift contract constitutes a fraudulent act.

(2) Next, we examine whether the instant transfer income tax claim becomes a preserved claim in the instant lawsuit. It is necessary to examine whether the instant transfer income tax claim becomes a preserved claim in the instant lawsuit. In principle, it is necessary to conclude that a claim protected by the obligee’s right of revocation has arisen prior to the commission of a fraudulent act. However, there is high probability that at the time of the instant gift contract, there has already been legal relations that form the basis of establishment of the instant transfer income tax at the time of the fraudulent act, and that a claim has already been established in the near future because its probability has been realized in the near future, the relevant claim may also become a preserved claim by the obligee’s right of revocation (see, e.g., Supreme Court Decision 2011Da76426, Feb. 23, 2012). Since the instant transfer income tax claim was arising from the transfer of an Odong real estate under the instant contract, and it is highly probable that the instant transfer income tax claim was established in the near future.

C. Whether a fraudulent act was committed

(1) The Defendant’s donation of each of the instant real estate to the Defendant by KimB, the sole property of OB, through the instant contract, constitutes a fraudulent act that reduces liability property in relation to the Plaintiff, a creditor of KimB.

(2) In order to secure the Defendant’s claim against KimB, the Defendant filed a provisional registration of the right to claim ownership transfer registration on the OE real estate. However, the Defendant asserted that the provisional registration on the OE real estate was cancelled at the time of entering into the instant contract and that the transfer of each of the instant real estate was done by the execution of the provisional registration of collateral price, and thus, it does not constitute a fraudulent act. However, the evidence submitted by the Defendant alone is insufficient to acknowledge it,

(3) The Defendant did not know that at the time of the instant donation contract, the Plaintiff was detrimental to the Plaintiff, which was the obligee, and was a bona fide beneficiary. However, there is no evidence to acknowledge this.

(d) Effect of revocation of fraudulent act;

(1) If the revocation of a fraudulent act is recognized, the beneficiary is obligated to return the object of the fraudulent act to the obligor as restitution, and if it is impossible or considerably difficult to return originals, the beneficiary must pay compensation equivalent to the value of the object of the fraudulent act as a performance of the duty to restore. In this case, each of the instant real estate subject to the fraudulent act is not the debtor KimB, but the defendant is transferred from KimCC through the instant contract, so it is reasonable to compensate for the equivalent amount because it is considerably difficult to return originals.

(2) Compensation as the effect of revocation of a fraudulent act shall be made within the scope of the creditor’s preserved claim and the value of the object of the fraudulent act less the secured debt on the right to collateral security established at the time of the fraudulent act. At the time of the donation contract of this case, the Plaintiff’s claim against KimB (149,875,000 won + 338,269,410 won) is higher than the above amount of claim. As such, the revocation of the donation contract of this case should be made within the scope of KRW 488,14,410, and compensation for value should also be made with the above amount.

(3) Therefore, the instant donation contract concluded between KimB and the Defendant shall be revoked within the scope of KRW 488,144,410, and the Defendant shall be obligated to pay to the Plaintiff 488,144,410 with an annual interest rate of KRW 5% as provided by the Civil Act from the day following the day this judgment became final and conclusive to the day of full payment.

3. Conclusion

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