Ulsan District Court-2015-B-23079 ( April 21, 2016)

Whether the debtor's insolvency is determined as at the time of the fraudulent act

After the debtor's active property is fraudulent act, it should be based on the market price at the time of fraudulent act rather than on the successful bid price in the auction procedure.

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

2016Da219839 Revocation of Fraudulent Act

Korea

○ ○

on October 2016 07

The judgment of the court below is reversed, and the case is remanded to the Ulsan District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

The lower court rejected the Defendant’s defense prior to the merits that the exclusion period had lapsed, on April 12, 2012, on the grounds that the Plaintiff was aware that the instant sales contract was a fraudulent act, although it was deemed that the Plaintiff was aware of the fact that the instant sales contract constituted a fraudulent act at the time of the said disposal, and there was no other evidence to acknowledge it, and that the Plaintiff was aware of the fact that it was around February 2015.

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, the court below did not exhaust all necessary deliberations and erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules or by misapprehending the legal principles

No error was found in the judgment below.

2. Regarding ground of appeal No. 2

(a) 3,633 square meters of land for a factory in ○○○○○○○○○○○○○○○○, and 764-14 square meters of a 363 square meters of a road;

With respect to

1) A creditor who claims revocation of a debtor’s legal act, etc. as a fraudulent act shall specifically assert and prove not only the existence of the preserved claim and the debtor’s legal act, etc., but also the fact that the debtor’s insolvency was caused by a legal act, etc. (see, e.g., Supreme Court Decision 2005Da28686, May 31, 2007). Whether the debtor’s insolvency was determined at the time of the fraudulent act. As such, where the real estate included in the debtor’s active property was adjudicated in the auction procedure after the debtor’s fraudulent act, the appraisal of such

In addition, the market price at the time of fraudulent act shall be based on the market price at the time of such fraudulent act, and reasonable division of

The appraised value calculated by the vehicle shall be deemed to reflect the market price, except in extenuating circumstances.

H. He/she is also aware of (see, e.g., Supreme Court Decision 2000Da69026, Apr. 27, 2001).

2) According to the reasoning of the lower judgment and the record, the lower court’s reasoning and the record reveal the following: (a) with respect to ○○○○○○-si, ○○○○, ○○○, 764-13 square meters of land for a factory, 3,633 square meters, and 764-14 square meters of land for a factory, 363 square meters of a 764-14 square meters and 363 square meters of a road on January 26, 2011, the auction of real estate was commenced on one occasion on June 28, 201, and the said land for a factory and road was sold at KRW 785,550,000 on the sale date on September 26, 2011.

3) Examining the above facts in light of the legal principles as seen earlier, there is considerable room to view that the market price of the above factory site and road as of April 12, 2010, which was the date of the instant sales contract, the Plaintiff asserted as fraudulent act, is not the above sales price, but the market price assessed at the above auction procedure.

4) If so, the lower court should have deliberated and judged on the market price of the above factory site and the road as of April 12, 2010, which was the date of the instant sales contract, by requiring the Plaintiff to submit the evidence on the appraised value conducted by the auction court by exercising the right of explanation.

Nevertheless, the lower court, solely on the grounds indicated in its reasoning, deemed that the market price at the time of the aforementioned land for factory and road fraudulent act was the sale price at the above auction procedure and calculated the Kim Young-young’s active property based on the above sale price. In so determining, the lower court erred by misapprehending

The lower court erred by failing to exhaust all necessary deliberations or exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error

The argument is with merit.

(b)For ○○○-si ○○-do 764-12 2,458 square meters of land for a factory:

1) If a debtor's active property at the time of the debtor's act of disposal of property has a claim among his/her active property, it shall be reasonably determined whether it is certain to have been easily repaid, and if it is confirmed, it shall be included in active property (see, e.g., Supreme Court Decision 2001Da32533, Oct. 12, 2001).

2) According to the reasoning of the lower judgment and the record, the lower court’s reasoning and the record reveal the following: (a) ○○○○○-ri 764-12,458 square meters of land for a factory owned by Kim Young-young on the ground of sale and purchase as of February 12, 2010, ○○○ District Court ○○○○○ ○○ ○○ ○○ ○○ ○○ ○○ ○ ○ ○ ○ ○301 received on August 3,

3) Examining these facts in light of the legal principles as seen earlier, as at April 12, 2010, which was the date of the instant sales contract claiming that the Plaintiff was a fraudulent act, Kim Young-young sold the above factory site to ○○ Timber Co., Ltd., and yet transferred its registration, Kim Young-young was likely to have had a claim for the purchase price on ○○ Timber Co., Ltd., and Kim Young-young could have been repaid the above claim in such a way that he did not transfer the registration of ownership of the above factory site until he was paid the purchase price from ○ Timber Co., Ltd., and therefore, Kim Young-young was not in use at the time

In addition, it should be deemed that a claim for the purchase price has been made as an active property.

4) If so, the lower court should have deliberated on the amount of claims for the purchase price, which appears to have been held after having entered into a sales contract with ○ Timber Co., Ltd. with respect to the above factory site, and should have determined whether Kim○’s status, including active property, exceeded the liability at the time of the fraudulent act.

Nevertheless, the lower court, without including the purchase price claim as to the above land for factory, determined whether Kim ○-young was in excess of its obligation at the time of fraudulent act. In so determining, the lower court erred by misapprehending the legal doctrine on the method of calculating active property or failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

The head of the Gu shall have reasons.

3. Conclusion

Therefore, the judgment of the court below shall be reversed, and the case shall be tried and judged again by the court below.

It is remanded to the Supreme Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.