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.

2012 Written Revocation of Fraudulent Act

Korea

KimAAAA et al.

June 21, 2013

July 12, 2013

1. (a) The repayment of KRW 000 on May 13, 2009, 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.

2. (a) The repayment of KRW 000 on June 1, 2009 against Defendant KimCC by Nonparty KimB, and the repayment of KRW 000 on June 5, 2009 shall be revoked.

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

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

The same shall apply to the order.

1. Basic facts

A. The relationship between the parties

1) Nonparty KimB and DoDD are married, and the Defendants, KimE, and KimF are children of the above couple.

2) KimB and KangD from May 17, 1985, each of the real estate listed in the separate sheet (attached Table 1, 7, each of the land listed in the separate sheet 2, 3, and 5 was owned by DoD separately, and the buildings listed in the separate sheet 4 were owned by DoDD, and the buildings listed in the separate sheet 6, and the buildings listed in the separate sheet 8 were destroyed. The buildings listed in the separate sheet 4 were destroyed by KimB and DoD, and each of the above real estate was listed in the separate sheet 6, and 8; hereinafter referred to as "each of the above real estate in this case"). From February 1, 2009, 'G hospital' was changed to 'GG hospital'. hereinafter "GG hospital" was operated without distinguishing from each other before and after the change, and KimA was working as administrative support hospital from 100 to 30.10 on October 28, 201, and Defendant KimA was working as administrative support hospital from 20G Hospital.

B. The sale and purchase of land between KimB and the Defendants and the sale and purchase loan, etc.

1) KimB and the Defendants shared 1/5 of the land on 12 lots, including 000 square meters in Seopo-si, 000,015 square meters, in Seopo-si, KimB and 3/5, and Defendant Kim Young-si, respectively. However, on February 27, 2002, KimB and the Defendants sold 13 lots of land located in 00 won to the non-party 13 and 4, respectively.

2) After receiving KRW 000,000 for the above purchase price from HaH and 4 others, KimB borrowed KRW 000 equivalent to the shares of Defendant KimOO and KRW 000 equivalent to the shares of Defendant KimCC from the Defendants as interest-free, and used the entire purchase price to pay for its obligations.

3) At the time of the purchase of a house located in Seongbuk-gu Seoul, Seoul, in around 2004, KimB repaid the above loan obligation to Defendant KimCC by paying the seller the sum of the down payment and intermediate payment of KRW 1 billion to the seller at the time of the purchase of the house located in Seongbuk-gu, Seoul.

4) On June 26, 2006, the director of the Yangcheon Tax Office issued a prior notice of taxation that C&B borrowed money from the Defendants who were specially related parties, as above, to the effect that C&B received money as above from the Defendants, the amount equivalent to the interest on the loan should be deemed to have been donated, and thus, it should be subject to gift tax of KRW 000 on the above interest amount.

5) Accordingly, on July 28, 2006, KimB requested the review of the taxation before taxation, and as a result, the decision was made by the court that the notice of taxation before taxation was lawful, and the examinationB paid all the gift tax.

C. The physical guarantee, etc. of KimB

1) On February 12, 2008, the husband of KimE, whose representative director is KimB, Nonparty OE Co., Ltd. (hereinafter referred to as “OE”) was designated and extended KRW 9.6 billion from Nonparty OE Co., Ltd. (hereinafter referred to as “OE”) at 12% per annum, the due date of payment, and on February 12, 2009, KimB, and GangwonD had registered the establishment of a mortgage on each of the instant real estate with 00 won of the maximum amount of claims and 00 won of the debtor's OE’s OE’s OE’s liabilities for the above loans to the OE mutual savings bank on the same day.

2) On March 12, 2009, the listed mutual savings bank completed the additional registration of the transfer of the right to collateral security on the ground of the transfer of contract on February 26, 2009 to the Korea Asset Management Corporation on March 12, 2009.

D. Conclusion and execution of a sales contract for each of the instant real estate

1) On March 24, 2009, KimB, and DoD sold each of the instant real estate to Nonparty DO in KRW 000 (hereinafter referred to as “instant sales contract”).

2) On March 24, 2009, the date of the instant sales contract, KimB received 000 won of down payment from MaO on March 24, 2009, and deposited 000 won in his own national bank account (Account number: 000, hereinafter referred to as "the instant account") on March 25, 2009, and received 1.4 billion won from MaO to MaO on March 31, 2009, after receiving 1.4 billion won as the first intermediate payment, he paid the above 1.4 billion won as the name of returning the deposit to the lessee of each of the instant real estate funeral hall, and after receiving 000 won as the second intermediate payment from MaO on April 15, 2009, he paid 00 won as the refund of the deposit money to the above ground lessee.

3) On April 27, 2009, Korea Asset Management Corporation applied for voluntary auction based on the right to collateral security (Seoul Southern District Court 2009, 11188) and rendered a decision to commence auction on April 27, 2009 regarding each of the instant real estate.

4) On May 11, 2009, KimB paid 000 won remaining after deducting the debt of Korea Asset Management Corporation 000 won from the aggregate of 000 won of the secured debt of Korea Asset Management Corporation, electricity, gas, etc. as stated in Paragraph (c) above, among the remainder of 000 won from RaO, and KimB and DoD completed the registration of ownership transfer for each of the instant real estate to RaO on the same day.

5) KimB deposited 000 won out of the above 000 won in the account in May 11, 2009, and 000 won in May 12, 2009, and 000 won in the account in May 26, 2009.

6) On May 11, 2009, LO made full repayment of the principal and interest of OO’s loan by remitting 000 to the Korea Asset Management Corporation, and the Korea Asset Management Corporation withdrawn the above application for auction on May 12, 2009, the registration of creation of a neighboring mortgage was cancelled on May 13, 2009.

E. Payment of money to the Defendants by KimB

1) On May 13, 2009, KimB paid a total of KRW 000,000 (hereinafter “instant one payment”) by means of remitting approximately KRW 3 million to Defendant KimA through the instant account and remitting approximately 20,000 to Defendant KimB.

2) On May 12, 2009 and May 13, 2009, KimB remitted 000 won from the instant account to the new bank account under one’s own name (Account Number: 0000), and then withdrawn 000 won from the said new bank account with cashier’s checks on May 29, 2009.

3) On May 29, 2009, KimB paid KRW 000 (hereinafter referred to as the “instant 2 payment”) to Defendant KimA on May 29, 2009 among the above KRW 000, and on June 1, 2009, KRW 000 (hereinafter referred to as the “instant 3 payment”).

4) On June 5, 2009, KimB transferred 000 won of the deposits remaining in the said new bank account to Defendant KimCC (hereinafter referred to as the “instant 4 payments”), and hereinafter referred to as the “each of the instant payments”).

F. The plaintiff's taxation claim confirmation

1) On May 31, 2010, around one year after the date of the payment of each of the instant payments, around May 31, 2010, the final return of tax base for capital gains was filed with the Plaintiff’s Magaz, KimB, and KRW 000, and KRW 00,000, as the actual transaction transfer value.

2) The head of Mapo Tax Office notified on December 1, 2010 that the KimB should pay the capital gains tax of KRW 000 and additional tax of KRW 000 due to the failure to pay the capital gains tax by December 31, 2010.

3) As of July 4, 2012, KimB did not pay the said transfer income tax, the amount in arrears of the transfer income tax was at least KRW 000.

G. The financial status of KimB

At the time of the payment of each of the instant payments, KimB’s financial status was as follows and was in excess of the debt.

(i)affirmative property;

(Omission)

2) Petty property

(Omission)

[Grounds for Recognition] The facts under dispute, Gap evidence 1 through 5, Eul evidence 1 to 2, evidence 1, evidence 2, evidence 5, 4, 5, 5, 8, 11, and 14, evidence 1, 2, 13 through 16, 21, 29, evidence 4, evidence 5, 8 through 11, evidence 1 through 13, evidence 1 through 13, evidence 1, evidence 1, 2, 3, 2, 7, 7, 9, 11, 3, 1, 1, 1, 1, 2, 16, 18, 16, 16, 16, 16, 16, 16, 27, and 30, 4, and 17, 1, and 30, of each evidence 1, 1, and 30

2. Whether the obligee's right of revocation has occurred;

(a)the existence of preserved claims;

1) The Defendants, and the Income Tax Act stipulate that the transfer income tax base shall be reported from May 1 to May 31 of the year following the relevant taxable period to the resident having the transfer income amount in the relevant taxable period. Thus, the date the transfer income tax credit for the Plaintiff under the instant sales contract of KimB was born on May 31, 2010, and accordingly, the Plaintiff’s transfer income tax claim against KimB was accrued after the Defendants received each of the instant payments from KimB, and thus, it cannot be the preserved claim against the right to revoke the fraudulent act.

2) In principle, a claim protected by the obligee's right of revocation needs to be protected prior to the occurrence of a fraudulent act. However, there is a high probability that the claim is established at the time of the fraudulent act, and that the claim is established by the existing legal relationship in the near future, and that is realizing the probability in the near future, the claim may also be the preserved claim for the obligee's right of revocation. This legal principle also applies to a tax claim. Thus, even if a tax claim has not yet been imposed by the specific decision of correction at the time of the fraudulent act, there was a basic legal relationship as to the occurrence of the tax claim, and even if the tax claim was established specifically through a series of procedures such as the decision of correction where it is highly probable that the claim will be established in the near future, and such taxation claim may be the preserved claim for the obligee's right of revocation, and the last day of the month which falls under Article 200Da37821, 209, the last day of the month in which the tax base of the obligee's right of revocation was established.

3) In accordance with the above legal principles, by entering into the sales contract of this case with RaO on March 24, 2009, the health team, KimB, and DoD established the facts found in the above basic facts, the transfer income tax claim was established on May 31, 2009, which was the end of the month in which the date when the purchase price under the sales contract of this case was settled, by entering into the sales contract of this case with MaO on March 24, 2009. Accordingly, the plaintiff's claim against MaB was already established at the time of the payment of each payment, and it was highly probable that the transfer income tax claim of this case was established in the nearest future, and that KimB was actually paid in full from RaO, and the plaintiff's claim against MaB was established on May 11, 2009, which was the date when the purchase price under the sales contract of this case was settled. Therefore, the plaintiff's claim against MaB was without merit.

B. Whether the act of debt repayment constitutes a fraudulent act

1) The parties' assertion

The Plaintiff asserts that, in collusion with the Defendants, KimB, the Plaintiff did not receive each of the above payments in collusion with KimB, as the purchase price of each of the instant real estate was to harm general creditors including the Plaintiff, and thus, the above repayment constitutes a fraudulent act. However, the Defendants asserted that the aforementioned payments constituted a fraudulent act, while the Defendants received each of the instant payments from YB as payment of unpaid benefits and loan claims, and they did not receive each of the above payments in collusion with KimB as intent to harm

2) Determination

A) In cases where a debtor donated his/her own property to another person under excess of his/her obligation, barring special circumstances, such act would constitute a fraudulent act; however, the debtor's joint collateral of other creditors is reduced by paying his/her principal obligation to a specific creditor under the first place of obligation; and the debtor's performance does not constitute an act of deception, in principle, unless the debtor has paid his/her obligation with the intent of undermining other creditors, in particular with some of his/her creditors, and with the intent of undermining other creditors. Ultimately, it should be proved that there are special circumstances mentioned above, such as the debtor's intent to harm the creditor to recognize his/her obligation as a fraudulent act, and the burden of proof for such act is in the position of asserting a fraudulent act (see Supreme Court Decision 2005Da28686, May 31, 2007). Furthermore, whether the debtor in collusion with some of the creditors, in order to impair other creditors, should be determined by considering whether the debtor's claim exists, the amount of the debtor's obligation before and after 205 years, and the beneficiary's ability of the beneficiary.

나) 위 법리에 따라 이 사건에 관하여 보건대， 위 기초사실에서 인정한 사실관계 및 갑 제3호증의 8 내지 11. 22 내지 25， 갑 제7호증의 1 내지 4， 을 제6호증의 2， 을 제20호중의 1의 각 기재， 갑 제12호증의 1의 기재 및 영상에 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정 즉. ① 부동산을 양도할 경우 양도소득세가 발생하리라 는 점은 통상적으로 예견가능한 일이므로， 김BB으로서는 이 사건 각 부동산을 000 원에 매각할 당시 거액의 양도소득세가 발생하리라고 예상하고 있었을 것인 점. ② 김 BB과 피고들은 부자관계이고， 피고들은 모두 이 사건 병원에서 의사 및 행정부원장 으로 근무하였는바， 피고들도 당연히 김BB이 이 사건 각 부동산을 매각하면 원고에 대하여 양도소득세 채무를 부담하게 되리라는 사정을 충분히 예상할 수 있었고， 특히 피고 김AAAA의 경우 이 사건 병원의 행정부원장으로 근무하면서 이 사건 각 부동산 매 각대금의 처리에 관한 금융거래업무를 직접 수행하기 까지 한 점. ③김BB은 이 사건 계좌를 통하여 피고 김AAAA에게 이 사건 1. 2 지급금 외에도 2009. 3. 26.부터 2009. 10. 29.까지 수차례에 걸쳐 합계 87.836.137원을 지급하였는바， 이에 대해 피고 김AAAA은 위 돈은 김BB으로부터 급여 명목 또는 피고 김AAAA이 개인비용으로 GG병원을 위해 먼저 사용하고 사후에 정산한 정산금 및 대여금의 변제 명목으로 지급받은 것이라고 주장하나， 위 피고가 주장하는 김BB에 대한 급여 정산금， 대여금 채권의 존재를 인정할 만한 직접적인 자료가 없는 점. ④ 김BB은 이 사건 3. 4 지급금 외에도 이 사건 계좌를 통하여 피고 김CC에게 2009. 3. 4.부터 2009. 11. 6.까지 수차례 에 걸쳐 합계 000원을 지급하였는데，이에 대해 피고 김CC은 김BB에 대한 대여금， 미지급 급여 등의 변제 명목으로 지급받은 것이라고 주장하나， 위 피고가 주장 하는 김BB에 대한 급여 및 대여금 등 채권의 존재를 인정할 만한 직접적인 자료가 없는 점. ⑤ 김BB은 이 사건 계좌를 통하여 2009. 3. 3.부터 2009. 6. 3.까지 김EE 에게 수차례 에 걸쳐 합계 00000원을. 2009. 3. 13.부터 2009. 10. 29.까지 김OOO에게 수차례에 걸쳐 0000원을 각 송금하였는데， 이에 대해 피고들은 위 돈은 김BB이 김EE， 김FF에게 차용금 및 급여 변제 명목으로 지급한 것이라고 주장하 나， 이 또한 김EE， 김FF의 김BB에 대한 대여금 및 급여 채권의 존재를 인정할 만 한 직접적인 자료가 없는 점，⑥ 김BB은 'OOOO'라는 상호의 개인사업체를 운영 하기 위하여 2009. 4. 14.경 소외 김OO으로부터 서울 강남구 신사동 561-31 소재 건 물을 보증금 1억 원， 차임 월 0000원， 기간 2009. 5. 18.부터 2011. 5. 17.까지로 정 하여 임차하였는데， 피고 검AAAA은 2009. 5. 18. 이 사건 1 지급금 중 000원을 김 연경에게 송금하였는바， 이는 검BB을 대신하여 피고 김AAAA이 김OOO에게 위 임대차 보증금의 일부로서 지급한 것으로 보이고， 한편 피고 김CC은 2009. 6. 1. 김BB으로 부터 이 사건 3 지급금을 지급받은 후 그 돈을 그대로 같은 날 피고 김AAAA에게 송금 하였고， 2009. 6. 5. 이 사건 4 지급금을 김BB으로부터 지급받은 후 피고 김AAAA에게 2009. 6. 8.에 0000원， 2009. 6. 9.에 0000원을 각 송금하였으며， 피고 김AAAA은 피고 김CC으로부터 위와 같이 지급받은 이 사건 3， 4 지급금 상당액을 자신의 주식 투자금 등 명목으로 사용하였는바， 이처럼 김BB이 피고들에게 이 사건 각 지급금을 지급한 것이 외형적으로 피고들에 대한 임금 및 차용금 채무 변제의 형식을 갖추고 있다고 하더라도， 그 후에 이 사건 1 지급금 중 일부가 다시 김BB을 위하여 사용되거나，피고 김CC에게 지급된 이 사건 3， 4 지급금이 최종적으로 피고 김AAAA에 의하여 사용된 점을 고려할 때 김BB과 피고들 사이의 관계를 일반적인 채권자와 채무자의 관계로만 볼 수는 없는 점，⑦ 김BB은 이 사건 각 부동산 매각대금을 모두 소비한 후인 2010. 5. 31.경에야 비로소 마포세무서장에게 양도소득 과세표준 확정신고를 하였고，원고가 이 사건 소를 제기하기 전까지 원고에게 양도소득세 채무를 전혀 변제하지 아니한 사후적인 사정 등을 종합하여 보면， 김BB은 피고들과 통모하여 조세채권자인 원고를 해할 의사로 피고들에게 우선적으로 이 사건 각 지급금 상당액을 변제한 것으로 추인할 수 었다.

C. Determination as to the defendants' assertion that KimB did not have a debt excess

1) The Defendants, and KimB, on behalf of the OOB bank of OB or the Korea Asset Management Corporation by subrogation, asserted that the amount of indemnity equivalent to KRW 000 has been claimed against the OB and other joint and several sureties who are the principal debtor, and that at the time of the payment of each of the instant payments, KimB had not been in excess of the obligation.

2) In calculating the obligor’s active property, it should be excluded from property that cannot serve as a joint security for claims because it has no real value, unless there are other special circumstances. In particular, 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 Supreme Court Decision 2004Da2564, Feb. 10, 2006). However, the facts established in the above facts and evidence No. 13, and evidence No. 13, and evidence No. 21-3 through No. 21-6, which show the overall purport of the arguments in each of the above facts, i.e., (i) OOO's claims are small-scale companies operated by KimB's fraud, and (ii) it had already been closed before the payment of each of the above claims, and thus, it cannot be seen that the OB and 200OB's claims were made for the above OB's debt obligations.

D. Sub-committee

Therefore, KimB, the debtor against the plaintiff, was paid each of the payments in this case to the defendants in collusion with the defendants, who are specific creditors, in excess of the debt and thereby would prejudice the plaintiff. Therefore, each of the payments in this case constitutes a fraudulent act, and KimB's intent to commit suicide is recognized, and the defendants, who are beneficiaries, should be presumed to have been aware of the defendant's intent to commit a fraudulent act, and therefore, the plaintiff's right of revocation was established as to each of the payments in this case.

3. The method of revoking the fraudulent act and restoring it to original state.

After all, according to the plaintiff's right of revocation, payment of each of the payments in this case against the defendants in KimB should be revoked as a fraudulent act, and since the defendants have used all of the payments in this case, restitution should be made by the method of compensation, and restoration to the plaintiff, and defendant KimAA as the beneficiary, defendant KimO as the beneficiary, is obliged to pay damages for delay calculated at the rate of 5% per annum as provided by the Civil Act from the day following the day when this judgment becomes final and conclusive to the day when the payment is complete.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted in its reasoning, and it is so decided as per Disposition.