Revocation of Fraudulent Act

The plaintiff's claim of this case is legitimate, seeking the return of originals and compensation for the equivalent value due to the revocation of fraudulent act and the restoration of originals to the original state.

Article 47 (Effect of Seizing Real Estate, etc.)

2017 Doz. 406988 Revocation of Fraudulent Act

Korea

00 Foreign Affairs

2018.09.07

oly 19, 2018

1. The qq is revoked on April 1, 2015, the gift contract and qq concluded with respect to the real estate listed in the separate sheet between Defendant www on April 1, 2015, respectively, as stated in the separate sheet signed with the remaining Defendants.

2. (a) The www will implement the procedure for the cancellation of the ownership transfer registration completed under No. 72155 on April 23, 2015 with respect to the real estate stated in the attached list to the ccccc district court v v v registry office with respect to the ccccqq.

B. The judgment of the court below with respect to the payment of KRW 50,000 by the date following the date of full payment with respect to the Plaintiff, Defendant ee shall be KRW 400,000,000, Defendant rr shall be KRW 50,000, Defendant t shall be KRW 500,000, KRW 500,000; Defendant yy shall be KRW 60,000,000 for Defendant u shall be KRW 60,000 for Defendant u; KRW 20,000 for Defendant o shall be KRW 20,000 for Defendant o; KRW 50,000 for Defendant A; KRW 10,000 for Defendant ss shall be KRW 35,00,00 for Defendant s, KRW 150,00 for Defendant ds and KRW 150,00 for each of the above amounts.

3. The costs of lawsuit shall be borne by the Defendants.

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

(a) Formation of a taxation claim (the existence of a taxation claim);

1) On March 21, 2015, theq. entered into a contract with c, nn, and zz for selling KRW 1,90,00,00 (hereinafter referred to as “instant sales contract”) of March 21, 2015, KRW 00,000, KRW 70,000 on March 23, 2015, KRW 70,000 on March 23, 2015, KRW 10,000 on March 10, 200, KRW 70,000 on March 23, 2015, KRW 10,000 on April 10, 200, KRW 70,000 on April 10, 200, KRW 7,008, KRW 8,000 on August 23, 205, KRW 207, KRW 8,2005; and

2) On June 30, 2015, the qq submitted to the director of the tax office bB office under the Plaintiff’s control the return of tax base of transfer income and the dispatch of the instant real estate. On September 11, 2015, the director of the tax office of BB office notified that the transfer of the instant real estate would be paid KRW 180,461,720 by September 30, 2015, until September 30, 2015, and October 178, 819,390 by October 31, 2015 (hereinafter “the instant transfer income tax”).

3) The transfer income tax of this case in which theqq is delinquent for the Plaintiff from August 2017 to August 2017 after the Plaintiff’s institution of this case is 461,542,650 won including additional dues.

(b) Property disposal activities ofqq;

1) On April 23, 2015, theqq completes the registration of transfer on April 1, 2015, for the real estate listed in the [Attachment List] owned by oneself (hereinafter referred to as “mm-dong officetel”) by Cccccc district court v v Registry receipt No. 72155, Defendant www, one of his/her his/her his/her dependent, on April 1, 2015.

2) On April 30, 2015,qq transferred KRW 400,000,000 to Defendant e, a spouse of d's own son, to Defendant e, a fraud, KRW 150,00,000,00 to Defendant d's son, KRW 50,000,00 to Defendant d's son, KRW 50,000 to his son, KRW 50,000 to his son, and KRW 60,00,00 to Defendant u, a spouse of wws who is his son, a fraud, to Defendant d's son's son, KRW 20,00,00 to his son, KRW 20,00 to Defendant d's son, and KRW 200,00 to his son, and KRW 200,00 to his son.

3) On May 6, 2015, theqq transferred 50,000,000 won to Defendant P’s her married, and 10,000,000 won to Defendant Aa who is a spouse of PP, respectively.

4) Theqq remitted 35,000,000 won to his dependants on May 7, 2015 (hereinafter referred to as the "each of the instant gift agreements") by collectively referring to the respective gift activities of each of the above sub-paragraphs (i) through (iv).

Facts that there is no dispute for recognition, and each of Gap's 1 through 7, 10 through 12 (including paper numbers)

Re-appeal, the whole purport of pleading.

2. The parties' assertion

A. Summary of the plaintiff's assertion

qq, knowing that the transfer income tax of this case is notified, concluded each of the gift contracts of this case with his own children, fraudulent and grandchildren, and around that time the qq was in excess of debt, and thus each of the gift contracts of this case must be revoked by fraudulent act.

B. Summary of the defendants' assertion

1) Since theqq was not in excess of the obligation at the time of each of the instant gift contracts, each of the instant gift contracts cannot be deemed a fraudulent act. Even if it was a fraudulent act, each of the instant gift contracts cannot be revoked as a fraudulent act against the Defendants, a bona fide beneficiary, who was not fully aware of the excess of theqq.

2) On April 30, 2015, 300,000,000 won out of the 400,000,000,000 won that was remitted to Defendant e on April 30, 2015, since theq was a legitimate repayment to e of the amount that was lent to e, a fraudulent act is not constituted.

3. Determination

A. Establishment of fraudulent act

(i) the existence of the preserved claim

Although it is required that a claim that can be protected by the obligee’s right of revocation has arisen prior to the commission of an act that can be viewed as a fraudulent act in principle, it is highly probable that at the time of a fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of a claim, and that a claim should be established by the near future legal relationship. In fact, where a claim has been created by realizing the possibility 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 2011Da76426, Feb. 23, 2012). Income tax on the gains from transfer of assets is abstractly established at the end of the month in which the amount that serves as the tax base (see, e.g., Supreme Court Decision 92Nu7887, Mar. 23, 1993); additional dues under Article 21 of the National Tax Collection Act are the overdue interest imposed on the unpaid portion if national taxes are not paid by the due date.

Pursuant to the above legal doctrine, health qs and qs entered into a sales contract for the instant real estate on March 21, 2015, and thus, the obligation to pay capital gains tax was abstractly established at that time, and there was a high probability that the said obligation to pay capital gains tax was to be finalized in the near future, and thereafter, the said probability was realized by imposing capital gains tax more thanqs, and the Plaintiff’s obligation to pay capital gains tax on the qs is established. Accordingly, capital gains tax claim on the qs and 461,542,650 won, including the additional dues, imposed after the first imposition of capital gains tax in accordance with the above additional legal doctrine, may constitute a preserved claim for the obligee’s right of revocation. In addition, the total amount of capital gains tax imposed on the 10th,2

2) Whether there exists intention to commit fraudulent act and to injure

A) Relevant legal principles

In cases where a debtor continuously engages in several acts of disposal of property, in principle, it shall be judged whether each act causes insolvency. However, in cases where there are special circumstances to see a series of acts as a single act, it shall be determined as to whether the overall act occurred. Whether there are such special circumstances should be determined by comprehensively taking into account whether the other party to the disposition is identical, whether each disposition is close to time, whether the other party and the debtor are specially related, and whether the motive or opportunity for each disposition is the same (see Supreme Court Decision 2012Da34740, Mar. 27, 2014). In cases where a series of acts are deemed a single act, it shall be determined as at the time of the first legal act (see Supreme Court Decision 2010Da15387, May 27, 2010).

“Legal act detrimental to creditor, which is the requirement for creditor’s right of revocation, refers to a juristic act that causes a decrease in debtor’s assets due to the act of disposing of debtor’s assets, thereby making it impossible to fully satisfy creditor’s claims by means of a decrease in the creditor’s assets or a lack of joint security already available to the extent that the creditor’s claims cannot be satisfied. As such, such fraudulent act may be established even in a case where the debtor’s assets fall short of debt due to an act in question, such as monetary donation, etc. (see, e.g., Supreme Court Decision 2005Da6808, Apr. 29, 2005)

In addition to the aforementioned facts and evidence, the following facts and circumstances, i.e., ① the q’s children or their spouses or grandchildren, ② the date of conclusion of each gift contract of this case regarding mdong officetels, which is after the conclusion of the contract of this case, at the time when the Plaintiff’s tax claim is established (the registration of transfer under this case was made on April 23, 2015); each money is closely adjacent to the Defendants on April 30, 2015; ③ as of May 6, 2015; and May 7, 2015, it is reasonable to judge that the remaining amount of the gift contract of this case excluding the above mmdong officetel’s donation contract of this case’s mmdong officetels as of May 2015, among each gift contract of this case, should be determined by comprehensively considering the circumstances that the above defendant’s initial opportunity to dispose of the real estate of this case’s above case’s mmytel should be determined by taking into account the aforementioned circumstances.

C) In light of the facts that there is no dispute over the financial status of each gift contract of this case, Gap 2 through 4, 8, and 10 evidence, and the overall purport of the pleadings against k Saemaul Depository and order to submit financial transaction information for 000 k Saemaeul Bank, 80 m20 m20 m20 m280 m20 m20 m280 m26 m200 m26 m280 m200 m26 m20 m26 m20 m200 m26 m200 m26 m200 m26 m200 m200 m200 m26 m280 m200 m3 m26 m200 m200 m3 m26 m200 m3 m200 m3 m200 m3 m2

D) Determination as to the Defendants’ assertion

(1) As to the assertion that a claim for reimbursement against zzq 398,958,541 won and a claim for loans 40,000,000 won should be regarded as active property more thanq

In a creditor revocation lawsuit, the obligor’s active property should be excluded from the property that cannot serve as a joint collateral for the claim because it has no real value. If the property is a claim, it should be reasonably determined whether it can be easily repaid and included in active property only if it is affirmed (see, e.g., Supreme Court Decisions 2001Da32533, Oct. 12, 2001; 2004Da58963, Jan. 28, 2005). The Defendants’ first claim against zz was 398,958,541 won, and 40,000,000 won, and the Defendants’ first claim against zx30,000,000 won cannot be seen as zq. However, according to the outcome of the reply to the order to provide taxation information, the Defendants’ first claim against zx30,500,000 won and 40,000,0000 won were insufficient.

With regard to the assertion that the claim for the return of the plaintiff's deposit should be assessed according to the market price of the relevant real estate or the 1,474,00,000 won in the contract for lease on deposit basis

㈎ 먼저, 원고의 전세금반환채권의 가액을 1,474,000,000원으로 보아야 한다는 피고들의 주장에 관해 살펴본다. 갑 제8호증 및 을 제7호증의1의 각 기재에 의하면, qqq은 aa시 bb구 ss동 305-2외 2필지 bb티지 102동 405호(이하 '이 사건 아파트'라 한다)에 관하여 2014.1.7. 전세권설정계약을 체결하고 전세금을 1,474,000,000원으로 한 전세권설정등기를 2014. 4. 29. 마친 사실, qqq은 2014. 4.30. 소유자인 hh로이엘 주식회사(이하 'hh로이엘'이라고만 한다)와 사이에 입주비 및 분양전환가를 1,474,000,000원에서 960,000,000원으로 변경하고 이를 분양전환가로 삼기로 약정(이하 '이 사건 특약'이라 한다)한 사실을 인정할 수 있다. 위와 같은 사실에 의하면, 이 사건 아파트에 관한 전세금의 액수와 최초의 입주비 및 분양전환가가 동일하고, 이 사건 특약이 체결된 날짜는 qqq 명의의 전세권등기가 설정된 다음날인 점을 알 수 있는바, 이 사건 특약에 의해서 hh로이엘과 qqq 사이의 전세금 채권의 가액이 1,474,000,000원에서 960,000,000원으로 감액되었다고 봄이 상당하다. 따라서, 이 사건 각 증여계약 당시 qqq의 전세금반환채권 가액은 960,000,000원이므로, 이와 다른 전제에 선 피고들의 이 부분 주장은 이유 없다.

㈏ 또한, 피고들은 이 사건 아파트에 관한 qqq의 적극재산 가액을 전세금반환채권의 가액이 아닌 이 사건 아파트의 사해행위 당시 시가로 보아야 한다는 취지로도 주장하므로 이에 관하여 본다. 을 제7호증의1의 기재 및 감정인 hhh의 감정평가결과에 의하면 이후 이 사건 아파트에 관하여 2015. 8. 5. qqq의 처인 ggg의 명의로 2015. 6. 25. 매매를 원인으로 한 소유권이전등기가 마쳐진 사실, 2015. 4. 30.을 기준으로 이 사건 아파트의 감정평가액은 1,000,000,000원인 사실을 인정할 수 있다. 이와 같이, 이 사건 각 증여계약 이후 이 사건 아파트에 관해 qqq의 처가 소유권을 취득하기는 하였으나, 이 사건 각 증여계약 당시 이 사건 아파트가 qqq의 소유가 아니었고, 달리 분양전환이 임박해있었다는 사정도 찾을 수 없으므로, 이 사건 각 증여계약 당시 qqq의 전세금반환채권의 가액을 이 사건 아파트의 당시 시가로 평가하기는 어렵다. 따라서, 피고들의 이 부분 주장도 받아들이지 않는다.

Article 300,00,000,000 won out of the amount of 400,000,000,000 won paid by Defendant e to Defendant e

If a debtor donated his/her own property to another person under excess of his/her obligation, such act constitutes a fraudulent act, barring any special circumstances (see, e.g., Supreme Court Decisions 97Da57320, May 12, 1998; 2006Da11494, May 11, 2006). However, in cases where the debtor’s repayment of debts to a certain creditor under excess of his/her obligation would result in a decrease in the joint security of other creditors by repaying the debtor’s principal obligation to the specific creditor, such repayment would, in principle, constitute a fraudulent act unless the debtor, in collusion with some creditors, performs performance with the intent to prejudice other creditors.

It does not constitute an act (see, e.g., Supreme Court Decision 2005Da62167, Jun. 15, 2006); however, it does not constitute an act:

creditor seeking revocation of a fraudulent act is a donation of money to the debtor's beneficiary.

claimant's assertion that the beneficiary has received such claim as repayment of the existing obligation

because this constitutes a denial of the creditor's assertion, the above monetary payment act constitutes a fraudulent act.

In order to be recognized, it shall be proved that there are special circumstances such as the intention to harm the creditor, only if it is proved that the act of paying the money constitutes a donation or constitutes a repayment.

In addition, the burden of proof is on the part of the assertion of fraudulent act (see Supreme Court Decision 2005Da28686, May 31, 2007).

The defendants asserted that on June 6, 2010, 100, 300,000 won of loan 10, 40,000 won of loan 50,000 won of loan 10,000 won of loan 40,000 won of loan 10,000 won of loan 10,000 won of loan 30,000 won of loan 10,000 won of loan 10,000 won of loan 40,000 won of loan 10,000 won of loan 10,000 won of loan 20,000 won of loan 10,000 won of loan 10,000 won of loan 40,000 won of loan 20,000 won of loan 30,000 won of loan 10,000 won of loan 20,000 won of loan 30,000 won of loan 30,00 E.

Even if the legal grounds for the 400,000,000,000 won, which was remitted to Defendant e on April 30, 2015, were not donations, the above loan obligations against Defendant e, who was 10,00,000,000 won out of the total of 40,000,00 won, appear to be a non-fixed term debt, i.e., the following facts and circumstances, i., (i) the above loan obligations against Defendant e, who was qq, appears to be a debt with no fixed term, and (ii) the above loan obligations are preferentially repaid around this time, (iii) the qqq and Defendant e, who were in a fraudulent manner, are likely to lead to close exchanges even with the Defendants’ assertion, and (iii) it is reasonable to view that Defendant e, 300,000,000 won, which was paid by Defendant e, was presumed to have been a part of a claim for the return of security deposit against Defendant h.

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

3) A private will;

qq was in excess of the obligations of the Defendants by donating m-dong officetels and cash 865,00,000 won to the Defendants according to each gift contract of this case. This constitutes a fraudulent act unless there are special circumstances, and theqq was aware that it would thereby prejudice the general creditors, and further, the Defendants’ intent of deception is presumed to be the beneficiary.

4) The defendants' bona fide defense

In regard to this, the Defendant’s bona fide defense, but the beneficiary’s bad faith is presumed in a lawsuit seeking revocation of a fraudulent act, so that the beneficiary is responsible for proving his/her good faith in order to be exempted from his/her responsibility, and for recognition of the beneficiary’s good faith at the time of the fraudulent act, evidence, etc. supporting objective and acceptable should be supported. On the basis of only a unilateral statement of the debtor or a statement that is merely the abstract side of the third party, etc., that the beneficiary was bona fide at the time of the fraudulent act (see, e.g., Supreme Court Decision 2013Da206986, Nov. 28, 2013).

Inasmuch as each of the instant gift contracts was concluded with entirely aware of the fact that each of the instant gift contracts would prejudice the creditor of fff, the Defendants asserted that they were not aware of the fact that they were children of qq or their spouse or grandchildren, the evidence submitted by the Defendants alone is insufficient to acknowledge this, and there is no other evidence to acknowledge this. Accordingly, the Defendant’s assertion is without merit.

(b) Methods and scope of reinstatement;

1) Relevant legal principles

Even if a creditor has won a claim for the revocation of a fraudulent act and restitution to a certain beneficiary, and the judgment became final and conclusive, as long as the creditor has not completed the recovery of property or value based on his/her secured claim, the creditor may separately claim the revocation of the fraudulent act and restitution to the other beneficiary based on his/her secured claim, and where the creditor has filed several lawsuits against multiple beneficiaries and has pending a lawsuit for the revocation of a fraudulent act and restitution to the original state, the creditor shall render a judgment ordering the revocation of the fraudulent act and restitution to the original state at the request of the creditor in each lawsuit, and where the beneficiary has to pay compensation for value, the creditor shall order the full return of the secured claim to the extent of value to be returned to the beneficiary without considering the outcome of other lawsuit, without considering the outcome of the other lawsuit (see, e.g., Supreme Court Decision 200Da14274, Apr. 16, 2008). The same applies where the creditor exceeds the total amount of the secured claim to be returned to each beneficiary by seeking the revocation of a fraudulent act and restitution to the original state by having the beneficiary as a co-defendant (see Supreme Court Decision 2014.

2) Determination

Therefore, each gift contract between theqq and the defendants of this case is revoked as it constitutes a fraudulent act, and it will be restored to qs to its original state. The defendant www will perform the procedure of cancellation registration of ownership transfer on the real estate stated in the separate sheet. The defendant e shall be 400,000,000, the defendant rr shall be 50,000,000, the defendant yyy shall be 200,000,000, the defendant uu shall be 60,000,000, the defendant 3 shall be paid 20,000,000, the defendant oo shall be 20,000,000, the defendant p shall be 50,000,000, 10,000,000, 10,000, 10,005, 10,005, 10,005, 10,000.

3. Conclusion

Therefore, all of the claims of this case against the defendants are accepted, and it is so decided as per Disposition by the court below.