Whether a beneficiary is bona fide or not should be determined reasonably by comprehensively taking into account various circumstances, such as the circumstances after the act of disposal.

Whether a beneficiary is bona fide or not shall be determined in a reasonable manner by comprehensively taking into account various circumstances, such as the relationship between the debtor and the beneficiary, the details and circumstances leading to the disposition between the debtor and the beneficiary, the circumstances leading to the transaction conditions of the disposition, whether there are no special circumstances to suspect that the transaction conditions of the disposition have been normal

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

Suwon District Court Sungnam Branch 2012Gahap201089 Revocation of Fraudulent Act

Korea

Gangwon ○ ○

May 8, 2015

July 17, 2015

1. The plaintiff's claim against the defendant (appointed party) and the appointed party is dismissed in entirety.

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

○○○○○○○○○○○○○○○○○○-dong 00 square meters (hereinafter “instant real property”), among the real property of this case, the agreement on the donation of 00/00 on October 00 and the Defendant (the appointed party; hereinafter “Defendant”) with respect to the portion of 00/00 on the share of 00/00 between ○○○○-dong 00 square meters and the Defendant (the appointed party; hereinafter “Defendant”) was revoked on October 00, 2000 with respect to each of the designated parties’ share of 00/00 between ○○○○-dong 00/00 and ○○○○○-dong 00, respectively. Of the instant real property, the Defendant among the instant real property, shall complete the donation agreement with the Plaintiff on October 00, 200 with respect to each of the designated parties’ respective share of 00/00 and the Defendant’s share of 00/Do○○-dong 0000.

1. Basic facts

A. The relationship between the parties

The defendant's children, including the defendant's wife, the ○○, the Do○, the Do○, the Do○, and the Do○○, are children of the defendant.

B. Donation of the real estate of this case

On October 00, 000, Gangwon○ donated the instant real estate to the Defendants (hereinafter referred to as the “instant gift”), and on the Defendant’s share of 000/000 of the instant real estate, on October 00, 000, he completed the registration of ownership transfer with respect to the Defendant’s share of 00/000 to the Appoint○○○○ on October 00, 000.

(c) Imposition, etc. of capital gains tax;

1) On October 0, 000, 000 square meters (hereinafter referred to as "○○○○○○○○○-dong 000 square meters (hereinafter referred to as "○○-dong 2") were registered in the name of Gangwon-do on the same site (hereinafter referred to as "○○-dong 2, hereinafter referred to as "○○-dong 2, and ○○-dong 2, along with the land of ○○-dong 2, 000), and on October 00, 00, Gangwon-do 2000, sold ○○-dong 2, to ○○○○ Development Co., Ltd. on October 0, 000 and thereafter on October 0, 2000.

2) On October 0, 000, the tax authority notified the Gangnam ○○ to pay the capital gains tax of KRW 0,000,000,000 on the ○○ Dong land as of October 000.

2. Determination

(a)the existence of preserved claims;

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 the fraudulent act, there has already been legal relations that serve as the basis for the establishment of the claim, and that the claim should be established in the near future by such legal relations. In fact, where a claim has been created by the realization of the probability in the near future, such claim may also become a preserved claim (see Supreme Court Decision 2000Da4352, Apr. 12, 2002).

In full view of the above facts and legal principles, the transfer income tax claim amounting to KRW 0,00,000,000 (hereinafter "transfer income tax of this case") that the tax authority decided and notified to Gangwon ○○○○ was completed on October 0, 00, and the registration of transfer of ownership to ○○○○ Development Co., Ltd. was completed on October 0, 000, and the abstract establishment was made after the lapse of October 00, 000 on the last day of that month, and there was a high probability on the fact that the transfer income tax claim is established on the basis of such legal relationship in the near future. In fact, the tax authority decided and notified the transfer income tax to ○○○ on October 0, 00, and thus, it became feasible to establish the taxation claim of this case against the Plaintiff Gangwon ○○○, which is subject to a fraudulent act revocation claim.

B. Establishment of fraudulent act

The fact that Gangnam ○○ was insolvent at the time when each gift was made to the Defendants that part of the shares of the instant real estate to the Defendants was partially donated to the Defendants, is not disputed between the parties, and thus, the instant gift act against the Defendants by Gangnam ○○ constitutes a fraudulent act.

C. Judgment of Kang○○’s intention to commit suicide and the Defendants’ bad faith

1) Legal principles

The obligor’s intentional intent, which is a subjective element of a fraudulent act, refers to recognizing the existence of a shortage in the joint security of claims. It does not require or intent to impair the obligee, and in cases where the obligor donates his/her own property to another person in excess of his/her obligation, the obligor’s intent is presumed. Moreover, in a lawsuit seeking revocation of a fraudulent act, the beneficiary is presumed to be aware of the beneficiary’s bad faith, and thus, the beneficiary is responsible for proving his/her good faith in order to be exempted from his/her liability. In such cases, whether the beneficiary acted in good faith shall be determined reasonably in light of logical and empirical rules by comprehensively taking into account various circumstances, including the relationship between the obligor and the beneficiary, the details of the act of disposal between the obligor and the beneficiary, the background or motive leading up to the act of disposal, the circumstances leading to the act of disposal, the existence of objective materials to support the act of disposal, and the circumstances after the act of disposal (see, e.g., Supreme Court Decision 2007Da

(ii) the facts of recognition

In light of the purport of the entire pleadings on the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW 00,000, KRW 000, and KRW 000,000, and KRW 000,000, KRW 00,000, and KRW 000,000, and KRW 00,000, KRW 00,000, and KRW 00,000, KRW 00,000, and KRW 100,000,00, KRW 100,000, and KRW 10,000, KRW 100,000, and KRW 10,000,00, KRW 100,000, and KRW 10,000,00.

3) Determination

(1) The above facts are as follows. ① The owner of the land at ○○○○○○○○○○○○○○○○○○○○○○○○○○○○ was acknowledged to have been Gangwon-do, but the owner of the land at the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ was to sell the real property at the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○. ② The ○○○○○○ paid the transfer income tax on the land at the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, which was an act of imposing the transfer income tax on the land at the ○○○○○○○○○○.

Therefore, at the time of the gift act of this case, the plaintiff's claim of this case, which is premised on the defendant's bad faith, cannot be accepted without further review.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed in its entirety as it is without merit. It is so decided as per Disposition.