It is reasonable to view the gift of this case as the agreement for division of property, which entails agreement divorce and divorce.

It is reasonable to see that the gift of this case is a property division agreement that entails agreement divorce, and the defendant has the right to claim a property division against 1/2 of the net property value, and therefore the plaintiff shall be compensated for the value.

Article 406 of the Civil Act, the obligee's right of revocation

2014 Gohap 101357 Revocation of Fraudulent Act

Korea

】 】

February 27, 2015

March 13, 2015

1. The gift agreement concluded on December 5, 201 with respect to the real estate listed in the separate sheet between the defendant and AA shall be revoked within the scope of ○○○○○.

2. The Defendant shall pay to the Plaintiff ○○○○ and the Plaintiff 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

3. The plaintiff's remaining claims are dismissed.

4. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The contract of donation concluded on December 5, 201 with respect to the real estate stated in the separate sheet between the Defendant and AA shall be revoked. The Defendant will implement the procedure for registration of cancellation of transfer of ownership, which was completed on December 16, 201 by the receipt ○○○○ on December 16, 201, with respect to the real estate listed in the separate sheet.

1. Facts of recognition;

A. Formation of a taxation claim

1) AA around November 2009, transferred 00 ○○○○○○-2 large 412 square meters and 13 square meters, and did not report the transfer income tax thereon.

2) Accordingly, on September 4, 2012, the head of the ○○ Tax Office under the Plaintiff’s control determined and notified AA on September 30, 2012, ○○○○○○○○ (○○) of the transfer income tax attributed to year 2009 as the due date for payment.

(b) AA’s disposal of property

On December 5, 2011, AA donated (hereinafter referred to as "the instant real estate") the real estate listed in the separate sheet (hereinafter referred to as "the instant gift") to the Defendant, his wife, and completed the registration of ownership transfer under ○○ District Court Receiving ○○○○○○○○ on the 16th day of the same month. At the time of the instant donation, the market value of the instant real estate is ○○○○○ (=○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

C. Divorce between the Defendant and AA

On May 5, 1969, the Defendant and AA married on May 5, 1969 and married on January 12, 2012.

Facts that there is no dispute over the basis of recognition, entries in Gap evidence 1 through 4, and 12 (if there is a number, including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings.

2. The occurrence of the right to revoke the fraudulent act;

(a)the existence of preserved claims;

1) Relevant legal principles

In principle, a claim that can be protected by the obligee’s right of revocation should have arisen before an obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, at the time of the juristic act, there is a high probability that the legal relationship, which is the basis of establishment of the claim, has already been established at the time of the juristic act, and that the claim is created in the near future, and where a claim has arisen due to the realization in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2000Da37821,

2) Determination

Income tax paid by preliminary return, such as capital gains tax, is abstractly established on the last day of the month in which the amount that serves as the tax base occurs (Article 21(2)2 of the Framework Act on National Taxes). On November 30, 2009, the obligation to pay capital gains tax from the transfer of land by AA has already been established as of November 30, 2009, and there was a high probability that the Plaintiff’s transfer income tax claim against AA was created in the near future. In fact, by imposing capital gains tax on AA on the Plaintiff on September 4, 2012, it is probable that the Plaintiff is subject to imposition of capital gains tax, and thus the transfer income tax claim was established.

Therefore, tax claims asserted by the plaintiff are preserved claims of obligee's right of revocation.

B. Establishment of fraudulent act

1) Parties’ assertion

A) The plaintiff's assertion

AAA is a fraudulent act inasmuch as the instant gift was in excess of the debt due to the instant gift. The divorce between the Defendant and AA is the most married, and the instant gift was made prior to the date of reporting divorce, and the said gift does not constitute a division of property according to divorce.

Even if the instant donation is a division of property due to divorce, it constitutes a fraudulent act as it is excessive division of property beyond a considerable degree.

B) Defendant’s assertion

The divorce between the defendant and the AA is true divorce, and the gift of this case is a substantial division of property, so it is not a fraudulent act.

2) Whether the gift of this case exceeds liability of AA due to the donation of this case

(A)affirmative property;

In full view of the overall purport of the statements and arguments set forth in Gap evidence Nos. 3, 5, 6, and 8, on December 5, 2011, the details of active property owned by AA as at the time of the donation of this case are as follows. Of them, the following table Nos. 1 through 5 are as BB for the debtor, and there were two collateral security set up in the future of the ○○○ Cooperative (the maximum debt amount) and two collateral security set up in the future of the ○○ Credit Cooperative (the maximum debt amount). However, at the time of the donation of this case, the sum of the three collateral security obligations of the ○○○○○○○ Cooperative (the sum of the secured debt of the ○○○○○○○○○ Cooperative + the two secured debt of the ○○ Credit Cooperative) is as follows.

Omission of the Table

Therefore, AA’s active property is ○○○○○○○○○○ (○○○○○○○○) who deducts the above secured debt from the value of the above real property (in this regard, the Defendant asserts that in relation to this, the above secured debt amount is merely a liability for the provision of a physical guarantee, and not a debt of AAA, and should not be included in a passive property. However, if an obligor’s property is provided as a physical security for another obligee’s claim, the part provided as a physical security cannot be deemed as a debtor’s property for the general obligee, and thus, only the amount calculated by deducting the secured debt amount of other creditors from the value of the property provided as a physical security should be assessed as the obligor’s active property (see Supreme Court Decision 2010Da64792, Jan. 12, 2012). Moreover, the Defendant’s assertion in this part is without merit since it was deducted from the above secured debt amount at the time of calculating active property).

B) Petty property

As seen earlier, at the time of the donation of this case, AA’s small property is the Plaintiff’s debt of capital gains tax for the Plaintiff.

(C) the occurrence of excess of obligations;

Ultimately, at the time of the donation of this case, AA had the net value of ○○○○○○○○○○○ (affirmative property ○○○○○○○○○) (negative 11 and 12). However, due to the donation of this case (the above attached table Nos. 11 and 12), AA’s passive property was caused by a situation where the negative property of AA was more than the active property (=net property ○○○○○ KRW - the market value of the real property of this case).

3) Whether property is division following divorce

A) Whether a divorce is deemed to be a false divorce

In light of the legal importance of the declaration of divorce under the form principle as to whether a divorce takes effect, the intention of divorce in a divorce by agreement refers to the intention to resolve the legal marital relationship. Thus, insofar as a divorce by agreement has been reported by the genuine agreement between the parties intending to resolve the legal marital relationship, even if there exists any other purpose in divorce by agreement, it cannot be said that both parties do not have any intention of divorce, and thus, divorce by agreement shall not be null and void (see Supreme Court Decision 2011Da80708, Feb. 9, 2012). Inasmuch as a divorce by agreement provides that a divorce by agreement shall take effect by reporting in accordance with the Family Court’s Family Relationship Registration Act after obtaining confirmation as to the existence of the intention of divorce and filing a declaration as to the existence of the intention of divorce in accordance with the law on registration of Family Relationship, it is reasonable to view that anyone would have had a temporary or legitimate intention of divorce between the parties to divorce, in view of the legal importance and de facto nature of the declaration of divorce (see Supreme Court Decision 2012Da28284, Feb. 28, 2013).

We examine the instant case in light of the aforementioned legal principles. According to the written evidence Nos. 4, 6, and 10, the Defendant: (a) even after filing a report of divorce with AA on January 12, 2012, the Defendant created a right to collateral security with respect to two parcels of land owned by the Defendant on March 7, 2012, 200, ○○○○○○○, 333, 334, and became a surety; and (b) AA continues to maintain a resident registration in the address living together with the Defendant after the said report of divorce; (c) the fact that the Defendant transferred the same to a new address on August 30, 2012 due to the lack of economic inconvenience between the Defendant and the Defendant and the testimony of the witness AA; (d) in other words, the Defendant appears to have been aware of the fact that there was no other physical inconvenience between the Defendant and the Defendant’s husband for divorce and the Defendant’s property division for the first time after the said report of divorce.

Therefore, the plaintiff's assertion that the gift of this case is a fraudulent act by divorce is without merit.

B) The nature of the instant donation (division of property following consultation divorce)

On the other hand, in cases where a party who has not yet been divorced agreed to divorce by agreement, and agreed on the division of property on the premise of such agreement, barring any special circumstance, conditional declaration of intention is made on the condition that the divorce by agreement between the parties would take place (see Supreme Court Decision 95Da23156, Oct. 12, 1995). As long as the agreement between the defendant and AAA was actually reached on January 12, 201, one month after the donation was made for the purpose of division of property premised on divorce on December 5, 201, as long as the agreement between the defendant and AA was actually reached on January 12, 201, the donation of this case takes the form of "donation before the date on which a divorce declaration is filed," but it is reasonable to view that the agreement is a division of property that entails a divorce.

4) Whether it is a substantial division of property

A) Relevant legal principles

In divorce, division of property shall contribute to the maintenance of the other party’s livelihood at the time of liquidation and distribution of the actual common property that the couple had in the marriage, but at the same time, division may take into account the nature as payment to compensate for mental damage (deficiencies) caused by divorce by the split-off’s act. In determining the amount and method of division of property, considering the amount of property achieved through mutual cooperation between the parties concerned and other circumstances is apparent under Article 839-2(2) of the Civil Act. Thus, even if the split-off becomes insolvent, the amount and method of division may be determined including the amount of debt to be borne by the split-off and the degree of contribution to the formation of common property even if the split-off becomes insolvent, and even if the split-off of property becomes insolvent by the division-off of property and reduces joint security against the general creditor, such division-off may not be deemed reasonable against the purport of Article 839-2(2) of the Civil Act, and the amount and method of property division shall not be limited to 2080 years of obligee’s right of revocation.

B) Property status of the Defendant and AA at the time of the instant donation

As seen earlier, the net assets of AA at the time of the instant donation are KRW 00,00. In full view of the respective entries and arguments in the evidence Nos. 3 and 9, the details of the Defendant’s active property at the time of the instant donation are as follows, and there is no Defendant’s small property.

Omission of the Table

C) Determination

The plaintiff asserts that active property of the defendant or AA is unique property acquired in his/her own name and is not subject to division of property. The defendant asserts to the same purport as in relation to the passive property.

According to the statements in Gap evidence No. 4 and Eul evidence No. 3, and the purport of the testimony and arguments in AAA as a whole, the defendant was not only responsible for family affairs as the mother of 2 South and North Korean women, but also the deaf company of the AA, and it is recognized that the current 2nd degree disability of the 2nd degree disability of the 2nd degree of brain disease was under inconvenience. Further, considering the marriage period and divorce of the defendant and the AAA, the circumstances leading to the marriage and divorce, and the support and support and support factors included in the division of property, the defendant and AA are deemed to have contributed actively to the acquisition or preservation of the active property under their respective names, and therefore, it is reasonable to view that the defendant has a right to claim a division of property against 1/2 of the net property value of the married couple's joint property, regardless of its name.

If so, ○○○○○○○○○○○ (AA’s net asset + Defendant’s net asset value) becomes the net property value of the Defendant’s husband and wife, and the Defendant has the right to claim a division of property against ○○○○○○○○, one-half of them. As seen earlier, prior to the instant donation, the Defendant had already owned the property equivalent to ○○○○○○, which is one’s own name. As to the instant real property, it is a reasonable amount of property division that ○○○, which does not reach the pertinent right to claim a division of property. Nevertheless, the Defendant received a division of property equivalent to ○○○○○○, by the instant donation, and thus, the part of ○○○○○, which exceeds the above KRW ○○○○○, is considered as having exceeded a reasonable scope in light of the purport of Article 8

C. Intention and defendant's bad faith

In such cases, it is reasonable to deem that AA, a debtor, was aware of the circumstances that it would prejudice the general creditors, such as the plaintiff, and the defendant, a beneficiary, is presumed to be malicious.

D. Sub-determination

The scope of revocation and return of a fraudulent act is limited to the scope of the preserved amount of claims, barring any special circumstance (see Supreme Court Decision 2006Da1442, Nov. 13, 2008). Thus, the Plaintiff may exercise the right of revocation on the instant gift contract within the scope of ○○○○ Won, which is the lesser amount between ○○○○○ and the preserved amount of claims, and the lower amount between ○○○○○○○○○○○○ and the aforementioned portion exceeding the reasonable division of property, and seek restitution.

3. Methods and scope of reinstatement;

If a creditor’s revocation of a fraudulent act and a claim for restitution are acknowledged, the beneficiary or subsequent purchaser shall be liable to return the subject matter of the fraudulent act to the debtor as restitution, and where it is impossible or considerably difficult to return the subject matter of the fraudulent act, the beneficiary or subsequent purchaser shall compensate for the equivalent value of the subject matter of the fraudulent act as a performance of the duty to restore (see, e.g., Supreme Court Decision 2007Da29119, Jul.

Among the value of the instant real estate, the part corresponding to the right to claim division of property that the Defendant is entitled to receive falls under a legitimate division of property, and thus, the instant real estate constitutes a case where return of the original property is impossible or considerably difficult. Therefore, the method of restitution shall be the equivalent compensation. As such, ○○○○○○, which is the scope of revocation

Therefore, the defendant is obligated to pay to the plaintiff ○○○○ and its late payment damages calculated at the rate of 5% per annum as stipulated in the Civil Act from the day after the judgment becomes final and conclusive to the day of complete payment.

4. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remainder

The claim is dismissed as it is without merit. It is so decided as per Disposition.