Whether the act of donation of real estate to her husband in excess of debt constitutes a fraudulent act

A donation to a husband of only real estate in excess of debt may result in the reduction of joint collateral to other creditors, which constitutes a fraudulent act subject to creditor's right of revocation.

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

1. The extension contract entered into on November 8, 2006 with respect to the real estate listed in the separate sheet between the defendant and the High ○○○ shall be revoked within the limit of KRW 38,00,000.

2. The defendant shall pay to the plaintiff 38,00,000 won with 5% interest per annum from the day following the day when this judgment became final and conclusive to the day of complete payment.

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

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the whole purport of the pleadings in the descriptions of Gap evidence 1, Gap evidence 2-1 to 4, Gap evidence 3, Gap evidence 4, Gap evidence 5, Gap evidence 7, and Gap evidence 8:

A. The ○○○○○○○○○○-si operated a manufacturer of automobile parts with the trade name “○○○○-○” in ○○-○○○○○○○○○○○○○○,” and the value-added tax was in arrears for the period from February 2, 2005 to January 2007. As of the date of closing argument in the instant case, the amount of delinquent taxes amounting to KRW 89,010,100.

B. On November 8, 2006, ○○ donated real estate listed in the separate sheet (hereinafter “instant real estate”) which is the only property to the Defendant (hereinafter “instant donation contract”) and completed the registration of ownership transfer.

C. On April 16, 2007, the Defendant sold the instant real estate in KRW 80,000,000 to ○○○○, and completed the registration of ownership transfer on April 23, 2007.

D. At the time of the instant donation agreement, two of the instant real estate was completed, but the sum of the secured debt amount was KRW 42,00,000 at the time, and the secured debt amount was totaled KRW 41,624,273 as of April 23, 2007, which was close to the date of the closing of argument in the instant case, and each of the said mortgages was revoked on April 24, 2007.

2. Determination

A. According to the above facts, it would result in the reduction of joint security against other creditors, including the plaintiff, etc. to which high ○○, who had already been in excess of the obligation, donated the real estate in this case, the only property of which is its own property, to the defendant. This constitutes a fraudulent act subject to creditor's right of revocation. In light of the above circumstances, it is reasonable to view that in light of the above circumstances, high ○○ would make it impossible for the defendant, who is a beneficiary, to fully satisfy the creditors' claims because the property has been reduced by the above disposal act, or the joint security which has already been in short of the joint security, becomes insufficient due to the decrease of the property, or the lack of the existing joint security. In other words, it is presumed that the defendant, a beneficiary,

Therefore, in principle, the donation contract of this case shall be cancelled as a fraudulent act, and the defendant shall be obligated to implement the registration procedure for cancellation of ownership transfer as its restoration to ○○○○○. However, as seen above, as long as the defendant already transferred the real estate to ○○○○○, it is impossible to return originals. In such a case, the defendant shall restore the real estate to its original state by means of compensation for its value. If the debtor has already established a real estate transferred by a fraudulent act and must compensate for its value, the liability property offered to the general creditors' joint collateral out of such real estate shall be deducted from the secured debt amount. Thus, in case the fraudulent act is cancelled, the value of the secured debt shall be calculated by deducting the secured debt amount from the value of the real estate at the time of the conclusion of the fact-finding court as at the time of the revocation of the fraudulent act. It shall be calculated by 00 per cent of the secured debt amount at 00 per cent of the total debt amount at the time of the conclusion of the arguments at fact-finding court as at the time of 2000 per annum.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

Table 3

(Indication of one building)

○○○○○○○○○○○○○○○ apartment

Multi-family housing of 8 floors of reinforced concrete structure slive roof

(Indication of Land Subject to Site Right)

1. ○○○-si ○○-dong ○○○○-dong ○○○○○○○-dong;

(Indication of Section of Exclusive Ownership)

○○○ ○○○○ Building reinforced concrete building ○○○, ○○○○ square meters

(Indication of Site Right)

1. ○○○○, ○○○○○, and ○○○○○○○.