Suwon District Court 2012 Gohap50711 (O2, 2013.12)

In a case where his own property was donated to another person under obligation excess, it would constitute a fraudulent act unless there are special circumstances.

If a debtor donates his/her own property to another person while in excess of his/her obligation, such act would constitute a fraudulent act unless there are special circumstances.

Article 30 of the National Tax Collection Act

2013Na201547 Revocation of Fraudulent Act

Korea

KimAAAA et al.

Suwon District Court and Yangyang Branch Decision 2012 Gohap50711 decided July 12, 2013

January 14, 2014

February 4, 2014

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

A. The repayment of KRW 000 on May 13, 2009 against Defendant KimB and the repayment of KRW 000 on May 29, 2009 by Nonparty KimB shall be revoked.

B. Defendant KimAA pays to the Plaintiff 000 won and 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

C. The repayment of KRW 000 on June 1, 2009 against Defendant KimB by Nonparty KimB and the repayment of KRW 000 on June 5, 2009 shall be revoked, respectively.

D. Defendant KimCC shall pay to the Plaintiff 00 won and 5% interest per annum from the day following the day this decision became final and conclusive to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim against the defendants is dismissed in entirety.

1. Quotation of judgment of the first instance;

The reasons for the court's explanation on this case are as follows: No. 12, No. 19-21 of the judgment of the court of first instance, No. 12, No. 19-21 of the judgment No. 12, No. 201 of the judgment No. 1, No. 2010 of the judgment No. 1, No. 2010 of the judgment No. 1, No. 2010 of the judgment No. 2010 of the judgment No. 1, No. 2010 of the judgment No. 2010 of the judgment No. 2010 of the judgment No. 2010 of the judgment No. 2010 of the judgment No. 2010 of the judgment No. 2010 of the judgment No. 2010 of the judgment No. 2010 of the judgment No. 2010 of the judgment No.

2. Additional matters to be determined;

A. The defendants' assertion

(i) the purpose of the exclusion period; and

On June 27, 2011, the Plaintiff’s transaction information on the instant account received from an O bank included the instant payment of 1, and the fact that the instant payment of 2,3, and 4,000 won was included in the transaction information on the cashier’s checks issued from the KimB bank account on July 6, 2011, and the fact that the instant payment of 4,00 won was made on April 26, 201 to the transaction information on the KimB’s account received from the OB bank. Accordingly, the Plaintiff became aware of the fact that each of the instant payments was paid upon obtaining each of the said transaction information.

On June 26, 2006, the Plaintiff was aware that at the time of the imposition of gift tax on the non-interest loan transaction between KimB and the Defendants, KimB and the Defendants had been frequently engaged in monetary transactions, such as donation, etc. In addition, on May 31, 2010, KimB voluntarily reported the transfer of each of the instant real estate to the Mapo Tax Office affiliated with the Plaintiff on May 31, 2010, and did not pay capital gains tax until December 31, 2010 after investigating the financial status of KimB, the Plaintiff was aware that there was no real estate owned by KimB by preparing a “data sheet on the status of delinquent taxpayer’s property, etc.” on January 19, 2011.

Therefore, the Plaintiff was aware of the fact that KimB was delinquent in capital gains tax in excess of his/her obligation from January 19, 201, and if he/she became aware of the payment of each of the instant payments between April 26, 2011 and July 6, 2011, the Plaintiff had been aware of the fact that he/she had committed a fraudulent act even when he/she had already been aware that KimB would prejudice the creditor. Thus, the instant lawsuit filed on July 9, 2012, which was one year after the exclusion period, is unlawful.

(2) lack of proof of the fact of satisfaction in collusion.

The KimB merely performed its obligations to the Defendants, but did not in collusion with other creditors. The Plaintiff merely citing only the fact that KimB and the Defendants were in a relationship between their father and a certain amount of money transaction between them, and there was no proof as to what in collusion with the intent to evade the performance of capital gains tax. The KimB sold each of the instant real estate and then did not pay the capital gains tax due to lack of funds. The KimB sold the instant real estate, and subsequently, performed its existing obligations, such as the obligation to return the lease deposit with the proceeds of the sale, the obligation to guarantee the right to collateral security of Korea, the obligation to guarantee the right to collateral security of Korea and the employees of the hospital, the amount of cash and city gas arrears, the amount of overdue loans to the Defendants and their neighbors, but it was difficult to pay the capital gains tax due to lack of funds.

In addition, KimB only closed the hospital operated by himself/herself to repay the secured debt of the right to collateral security, which was incurred by the provision of each of the instant real estate as the physical collateral, and sold each of the instant real estate. Since KimB voluntarily reported the transfer of each of the instant real estate, there was no intention to evade capital gains tax, and it was not possible to predict the confirmation of capital gains tax that will be incurred one year after the repayment of each of the instant respective payments.

3) Whether the obligation of KimB deepens over the obligations of KimB

In the event that KimB bears each of the loans and unpaid payment obligations (Defendant KimAA 000 won, Defendant KimCC00 won, etc.) to Defendant KimB, and Defendant KimCC, the payment of the respective payment amount of the instant case did not cause a decrease in liability property due to the decrease in the amount. As such, each of the payment amounts of the instant case does not constitute a fraudulent act.

In addition, since KimB's payment by subrogation for the obligations of OB's loans on behalf of OB has sufficient financial capabilities, OO, OO, etc., which are co-debtors of claims for indemnity, and such claims for indemnity can be easily repaid, this should be included in active property.

B. Determination

○ For the following reasons, the Defendants’ above assertion is without merit.

(i) compliance with the exclusion period;

"The date when the obligee becomes aware of the cause of revocation in the exercise of the obligee's right of revocation" refers to the date when the obligee becomes aware of the requirement of the obligee's right of revocation, that is, the date when the obligee becomes aware of the fact that the obligor had committed a fraudulent act with the knowledge that the obligee would prejudice the obligee. Therefore, it is insufficient to simply say that the obligor's act of disposal of the property was conducted by the obligor, and that the juristic act is prejudicial to the obligee, that is, that is, the act that the obligor's act would compromise the obligee.

and further, it should be known that the obligor had an intention of deception (see, e.g., Supreme Court Decisions 9Da53704, Feb. 25, 2000; 2000Da3262, Sept. 29, 200).

In addition, the burden of proof for the lapse of the exclusion period shall be the other party to the creditor's revocation suit (in this case, the other party

The Defendants are against the Defendants (see, e.g., Supreme Court Decision 2007Da63102, Mar. 26, 2009).

In full view of the purport of the arguments in Gap evidence 4-3, Eul evidence 23, Eul evidence 24-1, 2, 9, and Eul evidence 25-25, as alleged by the Defendants, the fact that the plaintiff made the payment of the first payment of the second and three payments on the cashier's checks deposited from OB's bank account on June 27, 201, the fact that the plaintiff prepared the "property, such as real estate in arrears" on the transaction information on the OB's account received from OB bank account on July 6, 2011, the fact that the payment of the fourth payment of the fourth payment of the second and three payments was made on the cashier's checks deposited from OB bank account on April 26, 2011, and the plaintiff did not pay the capital gains tax on KimB.

However, each of the above financial transaction information obtained by the Plaintiff from the OB bank and the OB bank is merely the fact that each of the above payments was made to the Defendants, and it cannot be concluded that the Plaintiff’s legal nature of each of the above payments, whether the joint security was insufficient, and the intention of the KimB to understand immediately through the confirmation of the above financial transaction information. In particular, as seen earlier, since each of the above payments of this case was paid as an existing obligation to the Defendants, it is difficult for the Plaintiff to determine whether each of the above financial transaction information constitutes the intention of KimB and the fraudulent act after obtaining additional confirmation about the total details of the payment and the circumstances before and after the payment.

The mere fact that the Plaintiff, like the Defendants’ assertion, was imposing gift tax on the past KimB and the Defendants, or investigated the financial status of KimB’s real estate holding, etc. in advance, is insufficient to recognize that KimB immediately knew of the fact that KimB had committed a fraudulent act while confirming the payment of each of the instant payments, and there is no other evidence to acknowledge it otherwise.

Ultimately, this part of the defendants' assertion is without merit.

2) The performance in collusion;

In full view of all the circumstances, including the above-mentioned KimB and the defendants' identity relation, KimB's property status at the time of the payment of each of the instant benefits, the possibility of recognizing the Defendants as to their respective payments, the timing and methods of the payment of each of the instant benefits, the Defendants' respective claims asserted by the Defendants, and lack of evidence to directly recognize the payment of the claims asserted by the Defendants, KimB may be confirmed to have repaid the amount equivalent to each of the instant benefits to the Defendants first with the intent to harm the Plaintiff, who is a tax right holder, in collusion with the Defendants, and the fact that KimB voluntarily reported the transfer of each of the instant benefits to the Plaintiff. Such recognition is insufficient solely on the ground that the Defendants asserted that other existing obligations were repaid with the proceeds of each of the instant real estate or that KimB voluntarily reported the transfer of each of the instant real estate to

3) The establishment of fraudulent act

Even if KimB’s repayment of each of the instant payments to the Defendants, as alleged by the Defendants, reduced the small assets, as the case may be, if the repayment was made in collusion with some of the creditors and with the intent to prejudice other creditors, then it can be recognized as a fraudulent act.

In addition, there is no sufficient evidence to acknowledge the defendants' assertion that KimB may easily receive the claims for indemnity arising from the subrogation of the liabilities for OB loans by OB. This part of the defendants' assertion is without merit.

3. Conclusion

The judgment of the first instance is legitimate, and all appeals by the Defendants are dismissed as they are without merit.