in excess of obligations, by donating cash to the beneficiary and constitute a fraudulent act

The sole property constitutes a fraudulent act, inasmuch as there is no evidence to acknowledge that the beneficiary has acted in good faith by selling real estate, depositing the full amount of the purchase price into another person’s account, or paying it to another person, resulting in an active state of excess of obligations, and then donating cash

Article 30 of the National Tax Collection Act

2011 Gohap 5928 Revocation of Fraudulent Act

Korea

XX

April 26, 2012

May 17, 2012

1. The contract of donation of KRW 000 on February 11, 2009 and KRW 000 on February 12, 2009 and KRW 000 on March 2, 2009 entered into between the defendant and thisA shall be revoked, respectively.

2. The defendant shall pay to the plaintiff 00 won with 5% interest per annum from the day after the day when the judgment of this case became final to the day of complete payment.

3. The plaintiff's remaining claims are dismissed.

4. 3/5 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

A donation contract between the defendant and EA on December 15, 2008, KRW 000 on January 30, 2009, KRW 000 on February 2, 2009, KRW 000 on February 5, 2009, KRW 000 on February 11, 2009, KRW 00 on February 11, 2009, KRW 000 on February 12, 2009, KRW 000 on March 2, 2009, and KRW 00 on May 7, 2007, which was concluded between the defendant and EA, shall be revoked. The defendant shall pay to the plaintiff the amount equivalent to KRW 00 on the above aggregate and KRW 5% on the annual rate from the following day to the date of completion of the judgment of this case.

1. Basic facts

(a) The amount in arrears of the Plaintiff of thisA;

(1) On June 21, 2007, thisA entered into a sales contract (hereinafter referred to as the “instant sales contract”) on the ownership or ownership right of 000 won for 700 won of the purchase price for the land other than 00-00 and 9 parcels, which is the only property of the PP industry, with the Co., Ltd. (hereinafter referred to as “the instant real property”). On January 30, 2009, thisA completed the registration of ownership transfer in the name of the XX industry with respect to the said real property.

(2) The head of the budget office imposed capital gains tax of 000 won on August 31, 2010, as thisA did not report and pay capital gains tax from the sale of the instant real estate, and the current arrears amount of thisA is equivalent to KRW 000,000, including the additional dues, as follows.

(b) disposal of real estate sales proceeds of thisA;

(1) On December 15, 2008, thisA transferred 000 won of the down payment of the instant sales contract to an account in the name of thisCC, a parent, through BB, through a licensed real estate agent’s agent’s title, and then deposited KRW 000 on the same day to the Defendant under his name.

(2) On January 9, 2009, thisA received KRW 000 as a check and deposited the intermediate payment of the instant sales contract into the account in the name of thisCC.

(3) On January 30, 2009, upon receipt of the balance of the instant sales contract 000 won, 000 won in the account of YF’s national bank, 000 won in the account of EE; 000 won in the account of EE; 000 won in the account of EH; 000 won in the account of EH; 000 won in the account of EH; 000 won in the account of EHK; 000 won in the account of EHK; 000 won in the account of EK; and 000 won in the account of EM and EK; and 000 won in the Defendant account.

(4) ThisA withdraws 00 won out of the above 000 won deposited into the account under the name of thisCC on February 2, 2009.

The defendant was transferred in his name to the defendant.

(5) ThisA withdraws from the above 000 won deposited into the National Bank account of YellowF to February 2, 2009, and transferred 000 won on February 5, 2009 to the Defendant account, and deposited 00 won on February 9, 2009.

(6) ThisA respectively deposited KRW 00 on February 11, 2009, KRW 000 on February 12, 2009, and KRW 00 on March 2, 2009, respectively, with the account under the name of the former PP, an employee of the Defendant’s company known to the Defendant.

(7) 황FF은 2009. 5. 6. 자신의 위 국민은행 계좌 이외의 다른 계좌에서 이AA의 전처인 이QQ 명의의 계좌로 000원을 이체하였고, 이QQ는 2009. 5. 7. 피고에게 위 000원 중 000원을 송금하였다.

C. The relationship between thisA and the defendant

On August 1, 2005, the Defendant established the right to collateral security (hereinafter referred to as the “right to collateral security”) with respect to the instant real estate, which is KRW 000,000, with respect to a monetary transaction with EA, while making a monetary transaction with EA, and cancelled the creation, etc. of the right to collateral security on January 30, 2009.

[인정근거] 갑 제1 내지 11호증(각 가지번호 포함)의 각 기재, 증인 이AA, 이QQ의 각 일부 증언, 변론 전체의 취지

2. The parties' assertion

A. The plaintiff

ThisA sold the instant real estate, which is its sole property, and deposited 000 won in full, into an account under the name of another person, such as thisCC, etc., and then donated 000 won in total to the Defendant by means of remitting cash in its own name or account transfer via another person’s account. Therefore, the said donation should be wholly revoked as a fraudulent act; however, it can be deemed that KRW 00 of the donation amount is the repayment of the collateral collateral obligation owed by thisA to the Defendant. Accordingly, the Defendant is obligated to pay the Plaintiff the remainder of KRW 00,00,000, as the restitution to the Plaintiff.

B. Defendant

위 합계 000원 중 000원 부분은 이AA가 피고에게 채무 변제 명목으로 지급한 것일 뿐 증여한 것이 아니고, 000원 부분은 이QQ가 이DD와 협의이혼하고 위자료 명목으로 000원을 지급받아 그 중 000만 원을 피고에게 대여한 것이지 이AA가 피고에게 증여한 것이 아니다.

Although the Defendant’s payment of the remainder of KRW 000 is consistent with thisA, thisA was not insolvent at the time, and the Defendant did not know at all the existence of the tax liability against the Plaintiff, so it cannot be deemed that the Defendant had the intention of deception on the part of the Defendant.

3. Determination

(a)the existence of preserved claims;

(1) In principle, a claim that may be protected by the obligee’s right of revocation may be, inasmuch as it is required that an act was conducted prior to the establishment of a fraudulent act, there exists a legal relationship that serves as the basis for the establishment of the claim at the time of the fraudulent act, and that the claim would be established in the near future. In fact, where a claim has been established in the near future due to its realistic possibility in the near future, the claim may also be subject to the obligee’s right of revocation. This legal principle applies to a tax claim as it is. Therefore, even if a tax claim has not yet been imposed by the specific decision of correction at the time of the fraudulent act, even though there was no basic legal relationship as to the occurrence of the tax claim, and where a claim was established in detail through a series of procedures, such as the determination of correction, which is highly probable to be established in the near future, such tax claim may be subject to the obligee’s right of revocation, in principle, and if the obligee exercises the obligee’s right of revocation, the amount of the claim may be more than 20 days prior to the date of pleading.

(2) In light of the above legal principles, the above obligation to pay capital gains tax was established abstractly by selling the instant real estate to the XX industry on June 21, 2007, and this constitutes the basic legal relationship of the capital gains tax imposed thereafter. Accordingly, the capital gains tax was imposed on August 31, 2010 due to the failure of thisA to report and pay the capital gains tax. The gift to the Defendant of this case was continued from December 15, 2008 to May 7, 2009 after the conclusion of the instant sales contract, and therefore, the Plaintiff’s capital gains tax claim including additional dues is the preserved claim of this case.

(b) insolvent and fraudulent act of thisA;

(1) Determination of the illegality

In order for a debtor to become a fraudulent act, the act of disposal of the debtor's property 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 shall be more than the active property. In the event that the debtor has conducted several continuous disposal of property, barring any special circumstance that the act should be viewed as one act, it shall not be judged as a series of acts collectively, but shall be determined according to whether each act causes insolvency (see, e.g., Supreme Court Decision 2002Da23857, Sept. 24, 2002).

(2) 00 won on December 15, 2008

However, this case’s sales contract was concluded and only the down payment was received, and as such, this case’s real estate ownership or the right to claim the purchase price based on the instant sales contract was held as active property, it is difficult to recognize that this case’s transfer income tax liability against the Plaintiff and the Defendant’s right to collateral security against the Defendant was in excess of the debt or was insolvent on or around December 15, 2008, and there is no other evidence to acknowledge this differently, and thus, it cannot be deemed a fraudulent act.

(3) 00 won on January 30, 2009

However, this case’s real property, the sole property of this case, lost ownership on January 30, 200, and deposited 000 won in another person’s account at the same time. However, as seen below, this case’s positive property can be seen as this case’s positive property, since this case’s transfer income tax liability (this tax 00 won) to the Plaintiff, which is a small property, and the secured mortgage liability to the Defendant against the Defendant, are not more than 00 won, and there is no other evidence to acknowledge that this case’s other secured property was in excess of debt or insolvent. Thus, this cannot be viewed as a fraudulent act because it is difficult to acknowledge that this case’s other secured property was in excess of debt at the time.

Furthermore, in light of the following circumstances acknowledged by the evidence as above, i.e., the defendant alleged that the above KRW 000 and KRW 000 as of February 2, 2009 deposited by thisA were paid as the payment of claims against thisA, thisA states that the principal and interest of the obligation to be paid to the defendant at the time is KRW 000,000, and that the right to collateral security of this case was established on August 1, 2005, and there is a possibility that the principal and interest of the obligation amount equal to KRW 00,00,000, which was paid by thisA, has been paid as a donation to the defendant, it cannot be concluded that the above KRW 00,00, which was paid by thisA, has been a fraudulent act.

(4) 00 won on February 2, 2009

On the other hand, the defendant alleged that he was paid KRW 000 on February 2, 2009 as a repayment claim against this case which was secured by the right to collateral security, and the plaintiff does not dispute this. Thus, it cannot be deemed that the above KRW 000,00 which he remitted to the defendant cannot be deemed as a donation to the defendant, and it cannot be deemed as a fraudulent act. In addition, this cannot be deemed as a fraudulent act detrimental to the interest of other creditors by having the defendant who secured the right to preferential reimbursement of KRW 000 based on the right to collateral security in this case, who secured the right to reimbursement of the maximum debt amount (see, e.g., Supreme Court Decision 2006Da3357, Feb. 14, 2008).

(5) 00 won on February 5, 2009

In light of the following circumstances, i.e., the Defendant: (a) lent the name of YF and opened the said national bank account on January 30, 2009; (b) deposited KRW 000 out of the instant purchase price with the said account on February 2, 2009; (c) transferred KRW 000 on February 5, 2009 to the Defendant’s account on February 5, 2009; and (d) transferred KRW 000 to the Defendant’s account on February 9, 2009; (b) in light of the fact that the Defendant: (a) deposited the remaining deposits on February 9, 2009; and (b) opened the transaction through the said account; and (c) deposited KRW 00 out of the instant purchase price with the said account in the name of Y, not simply donated to YF; and (c) deposited the said KRW 000 in the said account in the name of YF.

However, thisA’s active property at the time of February 5, 2009, as it was withdrawn and used from the account in the name of the YellowF that it managed on February 2, 2009, was 000 won, which is the balance of the above account. In such a situation, inasmuch as thisA transferred KRW 00 to the Defendant without any special reason and donated it, the above gift agreement constitutes a fraudulent act.

(6) KRW 000 on February 11, 2009, KRW 000 on February 12, 2009, KRW 000 on March 2, 2009

However, according to the above facts of recognition, this Agreement constitutes a fraudulent act, inasmuch as the above status of excess becomes worse by transferring the amount of KRW 00 on February 11, 2009, KRW 000 on February 12, 2009, and KRW 00 on March 2, 2009 to the account in the name of pre-P, which the Defendant informed without any special reasons, to the account in the name of the pre-P.

(7) 00 won on May 7, 2009

살피건대, 갑 제5호증의 5의 기재와 증인 이AA, 이QQ의 각 일부 증언에 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정들, 즉 ① 이AA와 이QQ는 28년 간의 혼인관계를 정리하고 2009. 3. 18. 협의이혼 선고를 마친 점, ② 위 협의이혼 당시 이AA가 이QQ에게 재산분할이나 위자료 등의 명목으로 다른 재산을 분할해준 사실이 없는 점, ③ 이AA와 이QQ는 2009. 5. 6. 황FF 명의의 계좌에서 이QQ 명의의 계좌로 이체된 위 000원을 이혼에 따른 위자료라고 주장하고 있는 점, ④ 이AA가 이QQ 명의의 위 계좌를 통하여 자신의 자금을 관리, 처분하고 있음을 인정할 만한 아무런 증거가 없는 점 등을 종합하면, 이QQ 명의의 계좌로 이체된 위 000원은 이AA가 이QQ에게 협의이혼에 따른 위자료 등 정산금으로 지급한 것으로 봄이 상당 하다.

따라서 위 000원의 지급행위 자체가 위자료를 구실로 이루어진 사해행위인지 여부는 별론으로 하고, 이QQ가 2009. 5. 7. 피고에게 위 000원 중 000원을 송금한 것은 이QQ의 재산처분행위로 보아야 할 것이지 이AA의 재산처분행위로 볼 수 없으므로, 이는 이AA의 사해행위에 해당하지 않는다.

(c) bad faith of thisA;

ThisA sells the instant real estate, which is the sole property, and actively causes insolvency or excess of liabilities by depositing the sales price in the account under the name of another person or paying it to another person, and then, it is presumed that the Defendant, the beneficiary, was aware that it would cause damage to the interests of the general creditor, since it was donated KRW 00 on February 5, 200, KRW 000 on February 11, 2009, KRW 000 on February 12, 2009, KRW 00 on March 2, 2009, and KRW 00 on March 2, 2009, respectively.

D. Defendant’s bona fide defense

In a lawsuit for revocation of a fraudulent act, the fact that the beneficiary was unaware of the fact that the beneficiary was a fraudulent act has the burden of proof, and in recognizing that the beneficiary was bona fide at the time of the fraudulent act, objective and acceptable evidence, etc. should be supported. The defendant's defense is not sufficient to conclude that the beneficiary was bona fide because only the unilateral statement of the debtor or a statement that is merely a third party's prosecution, etc. (see, e.g., Supreme Court Decision 2006Da5710, Apr. 14, 2006). Thus, the evidence submitted by the defendant in this case alone is insufficient to reverse the presumption of the intention to commit the fraudulent act, and it is insufficient to prove the defendant's good faith, and there is no other evidence to prove it. Thus, the defendant's defense is without merit.

(e) Methods and scope of reinstatement;

As seen earlier, each contract concluded between the defendant and EA on February 5, 2009, KRW 000 on February 11, 2009, KRW 000 on February 12, 2009, KRW 000 on February 12, 2009, and KRW 000 on March 2, 2009 constitutes a fraudulent act. Considering that the said fraudulent act is a donation of money, restitution to its original state should be made by means of return of value.

Therefore, the above contract of gift entered into between thisA and the defendant is revoked, and the defendant is obliged to pay the plaintiff the above sum of KRW 000 and 5% interest per annum under the Civil Act from the day following the day when the judgment of this case is finalized to the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.