It seems that the gift contract has already been subject to division of property exceeding the reasonable scope, and the gift contract constitutes a fraudulent act.

A lawsuit seeking cancellation of agreement on real estate 4 and restitution thereof shall be deemed to have been filed after the expiration of the exclusion period of one year from the date on which the plaintiff becomes aware of the grounds for cancellation, and in the case of part of the first donation contract and the second donation contract, it is reasonable to revoke it as a fraudulent act, if it seems that the property division exceeds the reasonable range

2011 Gohap 5413 Revocation of Fraudulent Act

Korea

LAAA et al.

June 5, 2013

June 26, 2013

1. Of the instant lawsuit, the part of the claim for the cancellation of fraudulent act and restitution of the original status as to the real estate stated in the separate sheet No. 4 between the Trade UnionB and the Defendant LAA shall be dismissed.

2. Between Defendant LAA and LaborB

A. The gift contract concluded on September 17, 2009 with respect to the real property listed in paragraph 1 of the attached list does not exceed KRW 000,00:

B. Each contract of donation concluded on January 5, 2010 with respect to real estate listed in Attachment List No. 2 shall be revoked.

3. Defendant LAA shall:

A. The Plaintiff shall pay to the Plaintiff 000 won with 5% interest per annum from the day following the day when the judgment of this case became final to the day of complete payment;

B. The U.S. District Court Yangsan registry office with respect to the real estate listed in paragraph (2) of the attached list No. 2 shall implement the procedure for the cancellation of ownership transfer registration completed on January 6, 2010 (No. 4701).

4. Each sales contract concluded on March 24, 2010 with respect to each real estate listed in paragraph 3 of the separate sheet between Defendant GangnamCC and LaborB shall be revoked.

5. Defendant Gangnam-CC will implement the procedure for registration cancellation of each transfer of ownership, which was completed on March 24, 2010 by the receipt No. 4887, with respect to each real estate listed in paragraph (3) of the attached Table No. 3, from the Changwon District Court.

6. The plaintiff's remaining claims against the defendant ChoiA are dismissed.

7. Of the costs of lawsuit, the part 7/10 arising between the Plaintiff and the Defendant LAA is borne by the Plaintiff, the remainder is borne by the Defendant, and the part arising between the Plaintiff and Defendant Gangnam is borne by the Defendant Gangnam.

The contract of donation concluded on September 17, 200 with respect to the real estate listed in paragraph (1) of the attached Table Nos. 2-b, 3-b, 4-5 of this Decree and paragraph (2) of this Article and paragraph (2) of this Article shall be revoked within the limit of 000 won, and the termination of agreement concluded on January 5, 2010 with respect to the real estate listed in paragraph (2) of the attached Table No. 2-b, 3-b, 4-5 of this Decree shall be revoked within the limit of 000 won. Defendant LA shall pay to the Plaintiff the amount calculated at the rate of 5% per annum from the day following the day when the judgment of this case became final and conclusive to the day of full payment.

1. Facts of recognition;

A. Tax claim against the Plaintiff’s laborB

1) In collaboration with Nonparty DoDD, Trade of 26 lots of land 12,160 square meters in Yangsan-si, Yangsan-si (hereinafter referred to as “instant plot of land subject to brokerage”) was mediated and paid 000 won to the relevant tax office (hereinafter referred to as “instant brokerage commission”) by the buyer, etc., but did not report it to the relevant tax office.

2) As a result of conducting a tax investigation with respect to the Trade Union and Labor Relations Commission from November 30, 2009 to December 11, 2009, the director of the tax office under the Plaintiff-affiliated Tax Office confirmed that the Trade Union and Labor Relations Commission received brokerage fees as above, and sent a notice that the Trade Union and Labor Relations Commission impose value-added tax 00 won for the first period of 2008 and global income tax 000 won for the year 2008 as follows, which was served on the Trade Union and Labor Relations Commission on June 16, 2010. The Trade Union and Labor Relations Commission did not pay the total amount of KRW 000 won as of October 7, 2009, which was prior to the above notice (hereinafter “each taxation claim against the Plaintiff’s Trade Union and Labor Relations”).b. Disposition and debt excess of the Trade Union and Labor Relations Commission’s each taxation claim.

1) At the time of September 17, 2009, NoB entered into a donation contract (hereinafter referred to as "the first donation contract of this case") with respect to the real estate listed in paragraph (1) of the attached Table No. 1 (hereinafter referred to as "real estate No. 1 of this case") owned by it with the Defendant LA as of September 17, 2009, and the Ulsan District Court on October 7, 2009.

The registration of transfer of ownership was completed on October 7, 2009 by the receipt No. 44993.

2) On January 5, 2010, NoB entered into a donation contract (hereinafter referred to as “the second donation contract”) with respect to the real estate listed in paragraph (2) of the attached Table No. 2 (hereinafter referred to as “real estate No. 2”) which it owned with the above Defendant on January 5, 2010, and completed the registration of ownership transfer with the above Defendant on January 6, 2010 as receipt No. 470 on January 6, 2010.

3) On September 11, 2009, Defendant LAA had completed the registration of ownership transfer on the real estate listed in paragraph 4 of the attached Table No. 4 (hereinafter referred to as “instant 4 real estate”) owned by himself on the ground of donation to Trade Union and LaborB on September 11, 2009 by the Ulsan District Court Yangsan District Court’s receipt No. 40987, Sept. 11, 2009. However, the above Defendant and Trade UnionB revoked the registration of ownership transfer on the ground of the cancellation of agreement on March 11, 2010 (hereinafter referred to as “the cancellation of agreement”).

4) On March 24, 2010, NoB entered into a sales contract on each real estate listed in the separate sheet No. 3 (hereinafter referred to as “instant third real estate”) in the separate sheet No. 3 (hereinafter referred to as “instant sales contract”). On the same day, NoB entered into a sales contract with Defendant Gangnam-gu Co., Ltd, which was a type of sale on March 24, 201 and entered into a registration office (hereinafter referred to as “instant sales contract”). Not later

24. Each registration of ownership transfer was completed in accordance with No. 4887.

5) At the time of the instant contract for donation Nos. 1 and 2, the rescission of the instant agreement, and TradeB at the time of the instant contract for the rescission of the agreement and the sales contract, the value of the small property was in excess of the value of the active property as follows (whether the property is insolvent or not should be determined separately at each time of the fraudulent act, but each of the above fraudulent acts shall be determined separately

From March 24, 2010 to March 24, 2010, both were conducted within a relatively short time, and as seen below, the value of the small property at the time is much more than the value of the positive property, and it seems that there were no particular property changes during the above period, all of them were determined at the same time.

[affirmative Property]

① Real estate No. 1 of this case: approximately KRW 279,177,18 (the market value of the real estate No. 1 of this case is about KRW 000, which is the value of the real estate No. 1 of this case, and KRW 000,000, which is divided in proportion to the actual amount of the secured debt as of October 2, 2008, where ○ Saemaul Community Depository established with the real estate No. 1 and No. 4 of this case from the market value of the real estate No. 1 of this case, is the mortgagee, and Defendant LA

② Real estate No. 2 of this case: Market price of approximately KRW 84,000,000

③ Real estate of this case No. 3: Market price of approximately KRW 000

④ Real estate No. 3-B: Market price of approximately KRW 000

⑤ The third real estate in the instant case is about KRW 000 in the market price.

(6) Real estate No. 4 of this case: approximately 8,184,382 won in the market price ( approximately 000 won in the market price of the real estate No. 4 of this case, which is the value of the real estate No. 4 of this case)

7. Land listed in attached Table 5 (hereinafter referred to as "real estate of this case") : approximately KRW 000 won at the market price.

(8) Total amount: approximately 000 won

[negative Property]

① The instant tax liability: Total amount of KRW 000 ( October 7, 2009)

② Loans to ○○ Saemaul Savings Depository: approximately KRW 000 (The actual secured debt of the joint collateral security established on the real estate Nos. 1 and 4 of this case + KRW 0000 + the actual secured debt of the right to collateral security established on the real estate No. 2 of this case, and the standard on September 17, 2009)

(3) Obligations with respect to SDRs: 000 won

(4) Total amount: approximately 000 won

[Ground for recognition] A without dispute, Gap evidence Nos. 1-14, 17-22, evidence Nos. 23-2, 24-2, 25, 26, 28, and 29-1-3, 30 of the evidence Nos. 29, and Eul's evidence Nos. 29, and the result of appraisal commission to the E-Evaluation Corporation of this Court, the purport of the whole pleadings

2. Determination as to the cancellation of agreement termination and restoration to the original state made between the Trade Union and the Defendant LA and the instant lawsuit

Upon filing the instant lawsuit on August 19, 201, the Plaintiff sought revocation of the agreement on real estate title 1 through 3 of this case and its restoration or compensation for value, and added a lawsuit seeking revocation of the agreement on real estate title 4 of this case and restitution thereof only on February 21, 2013. However, since the purport of the initial claim and the cause of the claim are different claims, whether the exclusion period under Article 406(2) of the Civil Act is complied with should be determined at the time when the claim was added. Comprehensively taking account of the purport of the statement and arguments as stated in evidence No. 17 of this case as stated in the evidence No. 17 of this case and the purport of the entire argument, the Plaintiff itself is reasonable to deem that the Plaintiff, upon receiving a copy of the instant real estate title 3 of this case, was unlawful on July 13, 2011 for execution of disposition on default against the Nonparty, the Plaintiff was aware that it was unlawful on July 13, 2011 that the Plaintiff was aware of the agreement on the instant real estate title 4 of this case.

3. Whether the fraudulent act is constituted;

(a)the existence of preserved claims;

1) A claim for income tax and value-added tax is naturally constituted under the law without any separate procedure by the tax authority or the taxpayer when the taxable period expires (Article 21(1)1, 4, 7, and 21(2)2 of the Framework Act on National Taxes). The claim for value-added tax of this case is June 30, 2008, and the claim for global income tax of this case was established on December 31, 2008, as seen earlier, that each tax liability of this case was established on December 31, 2008, and all of them are transferred on September 17, 2009 when the first gift contract of this case was concluded. Accordingly, each of the tax claims of this case can be the preserved claim to exercise the right for revocation against each of the gift and sales contract of this case.

2) The Defendants asserted that each of the instant taxation claims itself is unlawful, since the Defendants’ portion of the instant brokerage commission exceeds the statutory brokerage commission in light of the fact that it is illegal income from the violation of the Real Estate Brokerage Act, and even if they are subject to taxation, since the judgment became final and conclusive that each of the aforementioned brokerage commission was paid to the purchaser of land who was a partner at around 2010 and paid the brokerage commission, and thus, there is no business income subject to taxation. However, in light of the economic aspect of taxable income, it is sufficient to deem that there was a tax-related capacity to control and manage profits, and thus, the legal assessment of the underlying relationship with the Plaintiff should be lawful and effective (see, e.g., Supreme Court Decisions 81Nu136, Oct. 25, 1983; 8Nu123, May 28, 1985; 2009Nu1963, supra, each of the instant taxation claims is deemed unlawful or invalid, even if they were not returned to the purchaser (see, e.g., Supreme Court Decision 90108Nu2).

(b) Fraudulent act;

1) Claim against Defendant LAA

A) The nature of each gift contract of this case

Defendant LAA asserts that the instant contract for gift Nos. 1 and 2 was executed as a performance of division of property, payment of child support, etc. in the course of divorce with the NoB, and thus does not constitute a fraudulent act. Each of the evidence Nos. 1 and 6-1 to 19, 7-1 of evidence No. 5-3, No. 5-1, No. 6-1 of this case

Comprehensively taking account of the overall purport of the statement and oral argument, Defendant LAA and LaborB were married on September 17, 1986, but divorced on the ground of frequent assault with the external appearance of NowonB on January 28, 200, and thereafter, they resumed on December 12, 2001, but reported a divorce again on February 3, 201. The above Defendant and LaborB concluded each donation agreement with the above Defendant on September 17, 2009 and January 5, 201, under the name of division of property, land and support fees for their children, and consolation money, and completed the registration of ownership transfer in the future of the Defendant on the same day. Accordingly, each donation agreement of this case was concluded as a division of property pursuant to the divorce including consolation money, and the Plaintiff’s assertion that there was a lack of evidence to acknowledge the divorce by the Plaintiff on January 23, 201.

B) Whether division of property is appropriate

(1) We examine whether there are special circumstances to recognize that the instant donation contract deviates from considerable extent pursuant to the purport of Article 839-2(2) of the Civil Act. The property subject to division of property is the joint property formed through mutual cooperation between the two parties during marriage. According to the overall purport of evidence Nos. 2, evidence Nos. 23-1 through 10, evidence Nos. 4-1 and 10, Defendant LAA has operated a restaurant, discount, etc. from 192 to 192, Defendant LAA has not done any particular division of property at the first divorce of January 28, 2001, and it is reasonable to view that the property acquired after marriage is the joint property formed in cooperation with the above Defendant. Meanwhile, since the current system is based on the marital property of the couple and the joint property of the couple, it is reasonable to view that it is not the joint property formed by the two parties among the marriage and the joint property of the couple, and it is not the case where each joint property is assumed by the third party.

(2) According to the above evidence, active and negative properties subject to division of property at the time of the agreement transfer of the agreement in this case can be acknowledged as follows (other than the following small properties, the Plaintiff asserts that the Plaintiff’s liability to pay value-added tax in this case against the Plaintiff, the global income tax liability in this case, and the obligation with respect to DoDD should also be included in the scope of the small property subject to liquidation, but each of the above obligations is not related to ordinary family affairs, but it can be acknowledged that the Plaintiff frequently made real estate transactions even before receiving the brokerage commission in this case. In light of this, the evidence submitted by the Plaintiff alone does not recognize that each of the above tax liabilities and DoDD was borne with the formation and maintenance of joint property, and therefore, the Plaintiff’s above assertion is rejected).

[affirmative Property]

① Real estate No. 13: Market price of approximately KRW 000

② Real estate No. 2 of this case: Market price of approximately KRW 000

③ Real estate of this case No. 3: Market price of approximately KRW 000

④ Real estate No. 3-B: Market price of approximately KRW 000

⑤ The third real estate in the instant case is about KRW 000 in the market price.

(6) Real estate No. 4 of this case: Market price of 000 won

7. Real estate No. 5 of this case: Market price of approximately KRW 000 won

(8) Total amount: approximately 000 won

[negative Property]

(1) Loans by TradeB to ○○ Saemaul Savings Depository: approximately KRW 000 ( approximately KRW 000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0

② Defendant LA’s loan obligation to Defendant LA to ○ Saemaul Savings Depository: 000 won (as of September 17, 2009, the actual secured debt of joint collateral security established on real property 1 and 4 of this case)

(3) Total amount: approximately 000 won

(3) Therefore, the net amount of property subject to division of property is approximately KRW 000 (=00 won - 000 won). The following circumstances, i.e., the evidence and the purport of the entire pleadings, which may be acknowledged by the above-mentioned evidence, are as follows:

1. The fact that Defendant LAA and LaborB have engaged in economic activities during the marriage period;

(2) the cause of the divorce may be deemed to exist to the NoB;

③ At the time of acquiring the third real estate by Trade UnionB, the above Defendant’s acquisition of the third real estate in 1989 should take into account not only the acquisition of the property but also the contribution to the acquisition and maintenance of the property in division of property, and family labor can be recognized as a direct and indirect contribution to the creation of the property.

④ The amount reported by the above Defendant as income amount from 1992 to 2010 exceeds KRW 000, but TradeB appears to have no particular income other than interest income and the instant brokerage commission;

⑤ The real estate No. 2 of this case acquired after the NoO received a part of the brokerage commission of this case is about KRW 000,000, and the above KRW 000,000, including the purchase fund of some land; and

6. On January 22, 2008, the market price of the 5 real estate in this case acquired after the NoB received KRW 000,000 under the pretext of purchase funds for the remaining land and additional service expenses is merely KRW 000,000;

7) In view of the fact that two children of the Trade Union and the Defendant LAA were to have reached the age of majority and not required to take account of child support in the division of property, it is reasonable to view the division ratio of property between the Trade Union and the above Defendant as one-half, respectively. As such, the amount that the above Defendant is to receive as a division of property (=00 won x 1/2) is 00 won.

(4) First of all, according to the above evidence and the purport of the argument as to whether the gift contract of this case constitutes a fraudulent act, defendant LAA received 1 real estate of this case from about 000 won at market price on October 7, 2009 (as of September 17, 2009) at about 1, 209, and as ○○ Saemaul Depository established on real estate of this case as a right to collateral security, approximately 000 won ( = approximately 000 won + KRW 000), which is the amount divided according to the above real estate value, [i] KRW 00,000 x KRW 00 x below 00,000, and less than KRW 10,000). Thus, the above defendant's assertion that the above defendant's debt division should not be revoked for 00,000,000 No. 20,00,000 won, which is more than the above 00,000,00.

(5) Next, with respect to whether the instant donation contract constitutes a fraudulent act, the fact that Defendant LAA had received division of property exceeding a reasonable extent under the instant donation contract is as seen earlier, and otherwise, there was no special circumstance that the instant donation contract was not a fraudulent act, and thus, the instant donation contract should also be revoked as a fraudulent act.

C) the scope of revocation and the method of restitution;

According to the reasoning of the evidence No. 9 and the purport of the oral argument, Defendant 1: (a) set up a joint collateral of KRW 21,00,000 on September 29, 2010, which is 1,40 after the instant donation contract; (b) thus, it is reasonable to cancel the instant donation contract and select compensation for value as a means of reinstatement. According to the above evidence and the purport of the oral argument, the market price of the instant first real estate as of November 9, 2012 remains 40,700,000 won as of 00,000 won as of 10,000 won as of 10,000 won as of 10,000 won as of 20,000 won as of 10,000 won as of 20,000 won as of 10,000 won as of 20,000 won as of 10,000 won as of 30,000,00 won as of debt loan.

D) Sub-determination

Therefore, the first donation contract of this case is within 000 won. The second donation contract of this case is completely revoked, and the defendant Choi Ba is obligated to pay to the plaintiff delay damages at the rate of 5% per annum as stipulated by the Civil Act from the day following the day when the judgment of the plaintiff is finalized to the day when full payment is made. The plaintiff is obligated to implement the procedure for registration of cancellation of ownership transfer registration of this case completed under the receipt No. 470 of the Ulsan District Court Yangsan District Court 201, Jan. 6, 2010 with respect to the second real property of this case.

2) The part on the claim against Defendant Gangnam-CC

A) Whether a fraudulent act was committed

As seen earlier, TradeB’s excess of the obligation at the time of entering into each of the instant sales contracts. As such, the donation of the instant real estate to Defendant Gangnam constitutes a fraudulent act that causes the reduction of liability property in relation to other creditors, including the Plaintiff, barring any special circumstance. Moreover, the tax investigation conducted on TradeB from November 30, 2009; under Article 81-7(1) of the Framework Act on National Taxes, a taxpayer subject to a tax investigation is required to notify the tax payer of the tax items to be investigated, the period of investigation, and reasons for investigation 10 days prior to the commencement of the investigation; and the TradeB sells the instant third real estate to Defendant Gangnam-CCC without any particular reason immediately after the tax investigation. In light of the fact that TradeB was aware that the conclusion of each of the instant sales contracts would prejudice the creditors, and furthermore, it is presumed that the said Defendant’s bad faith as the beneficiary was also presumed.

B) Sub-determination

Therefore, the cancellation of each of the instant sales contracts, and Defendant Gangnam-C, as its restoration, is obligated to implement the procedure for the cancellation of ownership transfer registration, which was completed on March 24, 2010 by the receipt No. 4887, with respect to the third real estate in the instant case, instead of the original district court, the original district court was the original state.

3) Determination on the bona fide defense

The Defendants asserted to the effect that they were unaware of the fact that each of the above contracts constitutes a fraudulent act at the time of the conclusion of the gift contract and the sales contract of this case. However, there is no evidence to prove it, and there is no reason

4. Conclusion

Thus, the part of the lawsuit in this case, which claims the cancellation of the rescission of the agreement in this case and the restoration to the original state with respect to the real property listed in Paragraph 4 of the attached list between the Trade Union and the Defendant LAA among the lawsuits in this case, shall be dismissed, and all claims against the Defendant Gangnam-C shall be accepted for the reasons, and the claims against the Defendant LAA shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed