Korea

Defendant (Law Firm A.S., Attorney Choi Han-soo et al., Counsel for defendant-appellant)

September 13, 2013

Seoul Eastern District Court Decision 2012Gahap100836 Decided November 6, 2012

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The contract for donation between the defendant and the non-party 1 (the non-party to the judgment of the Supreme Court) on December 15, 2008 shall be revoked within the limit of KRW 780,40,90,00, and the defendant shall pay to the plaintiff 780,400,90 and 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

1. Basic facts

A. Formation of a taxation claim

1) On August 29, 2008, Nonparty 1 transferred KRW 965,638 of the Digital curb’s stocks to 11,765,280,400 (hereinafter “instant stock transfer”) but did not report this to the tax authority. Nonparty 1 notified Nonparty 1 to conduct a tax investigation on the said stock transfer from May 13, 201 to June 30, 201, and to pay the capital gains tax to Nonparty 1 until August 31, 2011, but Nonparty 1 did not pay it.

2) Accordingly, as of February 2, 2012, Nonparty 1 is in arrears with the national tax of KRW 780,400,90 (hereinafter “instant taxation claim”) as indicated below.

Transfer income tax on November 30, 2008:

B. The act of remitting money of Nonparty 1

1) The Defendant is Nonparty 1’s spouse, and Nonparty 2 is the Defendant’s mother.

2) On December 12, 2008, Nonparty 1 deposited KRW 7,365,903,110 out of the share transfer price of this case 11,765,280,40 won in a national bank account (Account Number 1 omitted) with Nonparty 2’s account.

3) On December 15, 2008, Nonparty 1 terminated the deposit contract with respect to the national bank account in the above non-party 2, withdrawn the full amount of KRW 7,377,745,795 in the above account, and then remitted KRW 2,120,967,187 in the national bank account in the name of the defendant on December 15, 2008, using the national bank account in the name of the defendant (Account Number 2 omitted), KRW 100,000,000 in the foreign exchange bank account in the name of the defendant, KRW 10,000,000 in the corporate bank account in the name of the defendant (Account Number 4 omitted), and KRW 50,000,000 in the account in the name of the defendant, KRW 2,370,967,187 in the name of the defendant.

4) 또한 소외 1은 2008. 12. 15. 위 7,377,745,795원 중 50억 원을 5,000만 원짜리 수표 100매로 인출하였다. 그 중 8억 원이 2008. 12. 24., 15억 원이 2009. 2. 11. 주식회사 이스턴커뮤니케이션(이하 ‘이스턴커뮤니케이션’이라 한다)에, 15억 원이 2009. 2. 11. 주식회사 선도네트웍스(그 후 상호가 주식회사 이노옵틱스로 변경되었다. 이하 ‘이노옵틱스’라 한다)에, 5억 원이 2009. 1. 13. 소외 3에게, 4억 원이 2008. 12. 29.~ 2009. 4. 8.에 걸쳐 피고에게 입금되었고, 나머지 3억 원의 수표는 2008. 12. 말~2009. 3.경에 걸쳐 각 소외 4, 5, 6, 7, 8 등에 의하여 지급제시되었다.

[Ground of recognition] Facts without dispute, Gap's 1 to 4, 8, Eul's 1 and 2 (including branch numbers), the purport of the whole pleadings

2. Summary of the Plaintiff’s claim

On December 15, 2008, Nonparty 1 donated KRW 2,370,967,187 to the Defendant on December 15, 2008 (hereinafter “the donation of this case”) constitutes a fraudulent act that causes the lack of joint security of general creditors including the Plaintiff, and thus, the Plaintiff cancelled the donation contract of this case between Nonparty 1 and the Defendant within the scope of KRW 780,40,90,00, which is the preserved claim against Nonparty 1, and the Defendant is obliged to pay the Plaintiff the amount of KRW 780,40,90 and the delay damages.

3. Determination

(a)the existence of preserved claims;

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 would have been created in the near future. In the near future, where a claim is realized and its probability has been realized in the near future, the claim may also become a preserved claim (see, e.g., Supreme Court Decisions 200Da37821, Mar. 23, 2001; 2006Da66753, Jun. 29, 2007).

According to the above facts, although the time when Nonparty 1 made the instant donation to the Defendant ( December 15, 2008) was earlier than the time when the Plaintiff notified Nonparty 1 of the instant taxation claim ( August 4, 201), Nonparty 1 made a transfer of the instant shares to Bason Co., Ltd. on August 29, 2008, which was the transfer of the instant donation, and there was a basic legal relationship on the accrual of the claim. Nonparty 1 received the transfer price of the instant shares on December 12, 2008, and the tax authorities did not report the transfer price of the instant shares, thereby resulting in high probability of the occurrence of the claim for capital gains tax. In fact, the Plaintiff’s transfer income tax claim against Nonparty 1 becomes a preserved claim for revocation of the instant taxation claim.

B. Legal nature of the act of remitting money to the Defendant by Nonparty 1

1) Parties’ assertion

The Plaintiff asserts that Nonparty 1 remitted money to the Defendant on December 15, 2008 constitutes a gift contract. In light of the various circumstances surrounding the use of the deposit account in the name of the Defendant, such as the details and purpose of the remittance, the timing and amount of the remittance, the timing and purpose of the withdrawal, the use of the remittance, the relationship between Nonparty 1 and the Defendant, etc., Nonparty 1 merely uses each deposit account under the name of the Defendant’s consent or understanding for the management of his own money for personal purposes, and it cannot be deemed that there was an agreement between the Defendant and the Defendant as to the transfer of money deposited in the above deposit account or property interest equivalent to the above amount without compensation to the Defendant. Thus, Nonparty 1’s remittance of money does not constitute a gift contract even if the above remittance act constitutes a title trust contract, and even if the above remittance act is not a title trust contract, it is argued that the remainder of the money acquired by Nonparty 1 was only the Defendant’s name in the case of lending membership funds in the name of Nonparty 1 and Nonparty 4.

2) Determination

In full view of the following circumstances, Gap's evidence Nos. 7, 10, 11, Eul evidence Nos. 1 and Eul evidence Nos. 1 and the purport of the whole pleadings in the testimony of non-party No. 1, the defendant acquired membership rights and right to use a 88 golf course membership rights and right to use the above membership rights, but the defendant did not submit objective data to the non-party No. 1. 2. The defendant purchased the money of KRW 1,75,000,000,000,000,000,000,000,000,000,000,000 won, from the account transferred by non-party No. 1 to the defendant No. 708,000,000,000 won, from the non-party No. 1,500,000 won, which was transferred from the defendant's account No. 1 to the non-party No. 1,500,0000,000 won.

C. The financial status of Nonparty 1

1) Relevant legal principles

In order to become a fraudulent act of a debtor's act of disposing of property, the act shall cause a decrease in the debtor's whole property and in short of the joint security of claims, namely, the debtor's passive property should be more active property. In case where the debtor continuously disposes of several properties, barring any special circumstance that the act should be viewed as one act, it shall be determined not as a series of acts collectively but as a whole whether each act causes insolvency (see Supreme Court Decision 2002Da23857, Sept. 24, 2002, etc.). However, if a series of acts are deemed as a single act, it shall be determined as a whole as a whole when there is a special circumstance that such act is deemed as a single act, it shall be determined on the basis of the identity of the other party, the time closeness of each act, the relationship between the debtor and the other party, the motive or the opportunity of the act, etc. (see, e.g., Supreme Court Decision 2010Da5787, May 27, 20107).

2) Determination

A) Non-party 1’s small property

At the time of donation of this case, there was KRW 780,400,900 of the tax liability of this case as the small property of Nonparty 1 as the small property of this case (at the time of donation of this case, even though the tax liability of this case was not specifically established at the time of donation of this case, it is reasonable to include the small property as well as the small property, since the basic legal relationship has already occurred and the claim is highly probable to establish.

B) The active property of Nonparty 1

① As examined in the above facts, Nonparty 1 held on December 15, 2008, which was at the time of the donation of this case, a 5 billion won check that was withdrawn from Nonparty 2’s account, and thus, Nonparty 1 had at least 5 billion won active property.

② On the other hand, as seen earlier, Nonparty 1 continued to perform the act of delivering a check which can be seen as property act, such as lending to Eston Communications and Esinary observers, etc. after the gift of this case. It is not determined for each act such as the gift of this case, but whether there are special circumstances to determine whether the series of acts such as the gift of this case has resulted in insolvency as a whole. Considering that there is a considerable interval of time, Nonparty 1’s property act including the gift of this case, including the gift of this case, is different from the other party to the act, and it is difficult to see it as a single act by combining the above property act of Nonparty 1, including the gift of this case.

③ Therefore, in the instant case, it should be judged whether the act of donation, etc. of this case resulted in insolvency. As seen earlier, it cannot be found that Nonparty 1’s active property (5 billion won) at the time of the instant donation was in excess of the negative property (780,400,900 won) and Nonparty 1 was in excess of liability at the time of the instant donation (in the examination procedure at the trial, Nonparty 1 asked for the reasons why the Defendant’s agent deposited shares transfer proceeds into Nonparty 2 and Defendant’s account and managed the shares transfer proceeds, and in light of the fact that “at the time, it was difficult for the witness to manage assets at financial institutions by provisionally seizing all the accounts of financial institutions.” However, there is no room to deem that Nonparty 1 had a debt equivalent to KRW 3 billion in addition to the above tax liabilities at the time of the instant donation. However, even if the above debt is included in the foregoing property, it is not acceptable to conclude that it is more active property at the time of the instant donation.”

Since the donation of this case cannot be deemed as a fraudulent act, the plaintiff's claim based on the premise that the donation of this case constitutes a fraudulent act is without merit.

4. Conclusion

Therefore, the plaintiff's claim against the defendant is dismissed as it is without merit, and the judgment of the court of first instance is consistent with this conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Cho Jae-hae (Presiding Judge)