Suwon District Court-2013-Gohap-23443 ( July 25, 2014)

repayment of money to Sarinam constitutes a fraudulent act

debtor's repayment of the money to the beneficiary in his or her village constitutes a fraudulent act detrimental to the joint security of the general creditor.

§ 30. Revocation of fraudulent act

2014Na2028365 Revocation of Fraudulent Act

Korea

Ansan ○

March 19, 2015

April 16, 2015

1.The judgment of the first instance shall be modified as follows:

A. Nonparty AA and the Defendant: (a) 50 million won on December 9, 2010, concluded between Nonparty A and the Defendant, and December 10, 2010

The act of payment of each amount of KRW 160 million, KRW 50 million on January 19, 201, or KRW 50 million on January 19, 201 is revoked.

section 3.

B. The defendant shall pay to the plaintiff 260 million won with 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of complete payment.

2. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

Each contract of donation (preliminary repayment) between Nonparty A and the Defendant on December 9, 2010, KRW 50 million, KRW 160 million on December 10, 201, and KRW 50 million on January 19, 201, and KRW 50 million on January 19, 201 between Nonparty AA and the Defendant shall be revoked. The Defendant shall pay to the Plaintiff the amount calculated at the rate of KRW 260 million per annum from the day following the date the judgment of this case became final to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

A. The relationship between AA and the defendant

1) AA is a person who actually operates theCC industry (hereinafter referred to as the “CC industry”), and the Defendant was a person who was working as the president of the above company as the company’s wife DD and vice president.

2) BB is the Dong of AA and the representative director in the name of theCC industry, and EE is the relative of the FF in the wife FF of BB, and it opens an account of ○○ (Account Number:00-00-0000) in its own name at the FF’s request and lends it to the FF.

(b) Formation, etc. of taxation claims;

1) AA around November 30, 2010, transferred 2.89 billion won in price to GGG Co., Ltd. for the real estate owned by it, ○○○○○○-dong, 000-0, and five parcels of land (hereinafter “instant real estate”), and received payment of KRW 2.89 billion in price on November 11, 2010, the down payment amount of KRW 200 million on November 23, 2010, the intermediate payment of KRW 30 million on November 23, 2010, and the remainder of KRW 2.39 billion on December 2, 2010, respectively.

2) The date of establishment of each taxation claim held by the Plaintiff, including capital gains tax claims related to the sale and purchase of the said real estate, the amount of claims at the time of establishment, and the details of arrears of the AA’s national tax as of October 2013 are as listed in the following table (hereinafter “instant taxation claim”).

(c) Disposal, etc. of AA;

1) On December 2, 2010, AA received the remaining balance of KRW 2.39 billion from ○○ bank account under one’s name (Account Number: 00-000-00-00-00000). The sum of KRW 1,664,954,263 (=1,366,03,035 + + 288,921,228 + 10 million + on December 3, 2010, the following day total of KRW 430 million (= KRW 400 million + KRW 30 million + KRW 7,800,000) on December 7, 2010 + KRW 1,660,000,000 + KRW 500,000).

2) As a result, on December 7, 2010, AA has left over KRW 217,077,691 in the above account. On December 8, 2010, AA deposited KRW 50 million in the above account with KRW 16,000,000 for face value ( check number 00,000 for face value) and KRW 160,000 for face value ( check number 00,000 for face value) respectively, and deposited KRW 21,00,000 for each of the above accounts on December 9, 2010 for KRW 10,000 for ○○ bank (Account number :00-00-00 for 00-1,000 for Account Transfer) and KRW 50,000 for the above account of DD with KRW 60-1,000 for each of the following two accounts.

3) Meanwhile, on December 3, 2010, AA deposited KRW 350 million out of KRW 400,000,000,000,000,000,000 from the said corporate bank account, was withdrawn as a check. AE on December 15, 2010, whichever is KRW 160,000,000 among them.

The above-mentioned (A-2) deposited into the ○○ account as stated in the above-mentioned (A-2), and thereafter, on January 19, 201, KRW 50 million was transferred from the EE’s above account to the Defendant’s above ○ Bank account (hereinafter the above account transfer referred to as “the second payment act of this case,” and “the payment of KRW 1 and 2, including the first and second payment,” respectively.

(d) The status of the property of AA;

AAA around December 8, 2010, there was no particular property other than KRW 217,077,691 in the balance on the account of the ○○ Bank.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 5 (including branch numbers in case of provisional number; hereinafter the same shall apply), Eul evidence No. 1, the purport of the whole pleadings

2. Determination

(a)the existence of preserved claims;

According to the above facts, the instant taxation claim was already established around December 9, 2010 or around January 19, 201, or around January 19, 201, and the legal relationship that forms the basis of the relevant claim was generated, and the near future claims were highly probable from that time, and its probability was actually realized and its taxation claim was established (see, e.g., Supreme Court Decision 2009Da53437, Nov. 12, 2009). Thus, the instant taxation claim can become the preserved claim in the instant lawsuit seeking revocation of fraudulent act.

In addition, as long as the above taxation claim is recognized as preserved claim of obligee's right of revocation, the amount of preserved claim includes additional charges incurred after the fraudulent act, so the plaintiff's current amount of delinquent local taxes in AA.

The obligee's right of revocation in this case may be exercised with the amount of KRW 880,139,240 as preserved bonds.

B. Whether the fraudulent act was established

1) Parties’ assertion

A) The Plaintiff, despite the fact that AA was in excess of its obligation, donated the above money to the Defendant through the accounts of DD and EE for three times, and thus, each contract constitutes a fraudulent act. Even if AA’s act of paying each of the instant money is deemed to constitute a repayment of borrowed money, not a donation, it constitutes a fraudulent act, and even if AA’s act of paying each of the instant money is deemed to constitute a repayment of borrowed money, it would prejudice other creditors in collusion with the Defendant.

It argues that the discharge of obligation with intent is also a fraudulent act.

B) On the other hand, the Defendant, not the debtor AA but transferred the above KRW 260 million from DD and EE, which is the beneficiary. Thus, each of the instant payments cannot be deemed to constitute a legal act between the debtor and the beneficiary subject to revocation of the fraudulent act. Even if it is practically a legal act between AA and the defendant, it cannot be deemed that the donation contract was concluded on December 9, 2010, and on January 19, 201, since there was no agreement between AA and the defendant to give a donation of KRW 260 million between AA and the defendant, and thus, it cannot be deemed that the Defendant received the above payment from the defendant to the defendant from September 2008 to December 8, 2010, since it cannot be deemed to have received the Defendant’s repayment of KRW 174,56,50 by means of lending the money in the name of CC, DD and BB from around 19, 201 to December 8, 2010.

2) The nature of each of the instant monetary acts

A) Relevant legal principles

A creditor who claims that a debtor's juristic act, etc. is a fraudulent act and seeks the revocation thereof shall not only have the preserved claim and the existence of the debtor's juristic act, etc. but also have

The facts that an insolvent has occurred, and the obligor’s intent to understand, and the facts constituting a fraudulent act should be specifically asserted and proved (see, e.g., Supreme Court Decision 2002Da59092, Apr. 23, 2004). If the obligor donated his/her own property to another person while in excess of his/her obligation, barring special circumstances, such act would constitute a fraudulent act (see, e.g., Supreme Court Decisions 97Da57320, May 12, 1998; 2006Da11494, May 11, 2006). On the other hand, even where the obligor’s joint security at a certain creditor under excess of obligation decreased by performing the obligation based on the nature of the obligation, such performance does not constitute a fraudulent act unless the obligor performed the obligation with an intent to prejudice other creditors in collusion with some creditors (see, e.g., Supreme Court Decision 2005Da6675, Jun. 26, 2015).

On the other hand, with respect to a creditor who seeks revocation of a fraudulent act's assertion that an act of paying money to the beneficiary is a gift to the beneficiary, this constitutes denial of creditor's assertion, and thus, in order to be recognized as a fraudulent act, the said act of paying money constitutes a gift in order to prove that the act of paying money constitutes a fraudulent act, and the burden of proof for such act is on the part of claiming a fraudulent act (see, e.g., Supreme Court Decision 2005Da28686, May 31, 2007). In this case, in order to constitute a gift, the act of paying money must be objectively and objectively interpreted as having reached an agreement between the debtor and the beneficiary on the donation and the grant of money free of charge (see, e.g., Supreme Court Decision 2012Da30861, Jul. 26, 2012).

B) Determination

(1) Party to each of the instant monetary payments

First of all, we examine whether the payment of each of the amounts of this case was made between AA and the defendant, and ① DD is between A and the couple, and EE merely lends the above accounts to HH of BB (the representative director in the name of theCC industry actually operated by AA), which is the dynamics of AA. Thus, each of the above accounts in the name of DD and EE is likely to have been actually controlled and managed by AA. (In fact, the defendant asserts that the defendant actually lent the amount to A by means of remitting it to the accounts in the name of theCC industry, DD and BB). In light of the above, it is reasonable to view that the defendant did not inform D and EE about the reason for receiving the amount from D and it was the preparatory defense that it was received as a repayment of the amount to DA, and rather, it was reasonable to view that the payment of the amount to the defendant was actually made by the defendant Do and EA.

(2) Whether the donation constitutes a gift

Next, the facts that AA remitted KRW 260,000 to the Defendant’s account through the account of DD and EE, and the facts that AA and the Defendant, as a matrimonial relationship, operated theCC industry together are as seen earlier.

However, in full view of the following circumstances, while the Plaintiff was unable to submit all active evidence proving that the above monetary amount of AA was a gift, it cannot be concluded that the Defendant was a gift of each of the above monetary amount, given that the Defendant had approximately KRW 168,795,560 (i.e., loan claim of KRW 131,736,300 + wage claim of KRW 37,059,260) to AA, a actual operator of theCC industry, and that each of the above monetary amounts of this case was paid for the above monetary amount of KRW 131,736,30,059,260). This part of the Plaintiff’s assertion is without merit.

In other words, the defendant, while serving as the vice president of theCC industry from around December 2006 to around June 2010, transferred the above amount of KRW 200,502,700 to the above new bank account of the defendant from around September 2008, and KRW 64,00,90 to the above accounts ofCC industry for three times, and KRW 74,002,70 to the BB account for five times. (2) Meanwhile, the defendant received the above amount of KRW 52,03,803,490 from the above accounts to the above accounts of the defendant, KRW 300,000, KRW 700, KRW 300, KRW 700 from the above accounts, KRW 30, KRW 700 from the above accounts of the defendant's new bank account, KRW 360,000 from around 70, KRW 200, KRW 307,000 from the above accounts.

⑤ Examining the details of the above monetary transaction between the Defendant and theCC industry, the Defendant’s transfer of a certain amount to the CCTV industry can only be seen as having been deposited in the Defendant from the side of theCC industry to the Defendant. 6 Even if the Defendant and the AA did not prepare a disposal document such as a loan certificate, considering the relationship between the Defendant and the AAA, the Defendant’s duties within theCC industry, and the period and frequency of the said monetary transaction between the Defendant and theCC industry, it is not easy to explain that the said monetary transaction is not a loan but a juristic act. 7,059,260 won, on the grounds that the Defendant was not paid the sum of wages and retirement allowances from theCC industry after retired from theCC industry around May 2010, the Defendant was indicted to the Incheon District Court on August 3, 2010.

3) Whether a fraudulent act was committed

A) Relevant legal principles

Even if each of the instant monetary payments, as alleged by the Defendant, was performed for the Defendant of AA in collusion with some of the creditors, it may constitute a fraudulent act in the event that the obligor performed such payments with the intent to prejudice other creditors, as seen earlier, as seen earlier. This shall be determined by comprehensively taking into account all the following circumstances: (a) whether the obligor’s claim against the beneficiary exists; (b) whether the beneficiary’s claim against the obligor exists; (c) whether the beneficiary was paid from the obligor; (d) the obligor’s ability to repay; (d) the beneficiary’s perception of the obligor’s ability to repay; (e) the beneficiary’s act before and after the repayment; (e) the obligor and the beneficiary’s circumstances at the time; and (e) the process of repayment (see, e.g., Supreme Court Decision 2004Da1

B) Whether the payment of each of the instant funds constitutes a joint repayment upon the collusion

Therefore, it is reasonable to view the following circumstances, i.e., AA 200 million won for each of the above facts and evidence, i.e., 00 million won for each of the above facts and 30 billion won for each of the above facts and 40 billion won for 60 billion won for 60 billion won for 60 billion won for each of the above facts and 30 billion won for 60 billion won for 60 billion won for 6 billion won for 60 years for 60 years for 60 years for 6 years for 60 years for 60 years for 60 years for 6 years for 60 years for 6 years for 30 years for 6 years for 5 years for 60 years for 6 years for 5 years for 6 years for 5 years for 5 years for 5 years for 5 years for 6 years for 5 years for 5 years for 5 years for 5 years for 5 years for 6 years for 5 years for 5 years for 5 years for 6 years for 9 years for 2 years for 6 years for 9 years for .

In this regard, the defendant did not know the financial situation of the AA because the defendant had conflict with the AA due to the delayed payment of wages, and the relationship with the AA was aggravated since the KCC industry had urged the AA to repay the loans, and the relationship has deteriorated without exchange. The defendant did not know the fact that the plaintiff, etc. was the creditor of the AA, even at the time of the payment of each of the funds of this case. However, the statement of the evidence Nos. 3 and 4 alone is insufficient to recognize that the defendant was a bona fide beneficiary, and there is no other evidence to acknowledge that the defendant was a bona fide beneficiary. Rather, as seen earlier, the defendant's defense is without merit.

4) Sub-committee

Therefore, the act of payment of each of the amounts of this case shall be revoked as a fraudulent act detrimental to the plaintiff, who is the creditor, and the defendant shall be obligated to pay to the plaintiff 260 million won and damages for delay calculated by the rate of 5% per annum under the Civil Act from the day following the day when the judgment of this case becomes final and conclusive to the day when full payment is made.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is justified.

Although the conclusion leads to the conclusion, it is reasonable to do so, so the judgment of the first instance is to be modified as above, and it is so decided as per Disposition.