Where a principal registration has been made on the basis of provisional registration, whether the requirements for fraudulent act are met shall be determined at the time of the juristic act which is the cause of provisional registration.

In the event a legal relationship, which forms the basis for the establishment of a claim, exists and a claim is established in the near future, the creditor's right of revocation shall become a preserved claim, and where a principal registration has been made on the basis of a provisional registration, the fraudulent act shall be determined at

§ 406. Revocation of Civil Code

2017 Mada202435 Cancellation of provisional registration

Korea

Park AA

September 5, 2017

November 7, 2017

1. The purchase and sale reservation entered into on July 24, 2012 between the Defendant and the BB regarding each real estate listed in the separate sheet shall be revoked.

2. 피고는 이BB에게 별지 목록 기재 각 부동산에 관하여 000지방법원 DDD등기소 2012. 7. 25. 접수 제XXXXX호로 경료된 소유권이전청구권가등기 및 같은 등기소 2016. 11. 29. 접수 제XXXXX호로 경료된 소유권이전등기의 각 말소등기절차를 이행하라.

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

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

A. The Plaintiff’s taxation claim against BB is as follows (hereinafter “instant claim”).

(unit: Won)

Classification

Government Offices

List of Tax Items

Deadline for payment

Liability for Tax Payment

Year of Formation

Original notified Tax Amount

July 20, 2017

(1)

* tax secretary*

Transfer

Income tax

oly 31, 2012

2011

00,000,000

00,000,000

(2)

* tax secretary*

Transfer

Income tax

January 31, 2014

2012

00,000,000

00,000,000

Total

00,000,000

00,000,000

① Pursuant to the transfer of real estate, such as DDD 00 xx-3 on January 31, 201 and September 7, 2011 of the same year, the above credit is the credit for each transfer income tax imposed upon the expropriation of real estate, such as FF Rixx-11 on May 3, 2012.

(b) the BB’s disposal;

On July 24, 2012, thisB entered into a trade reservation with respect to each real estate listed in the separate sheet (hereinafter referred to as the "real estate of this case") at KRW 00,000,000 (hereinafter referred to as the "sale reservation") between the Defendant, his mother, and the Defendant completed the registration of the right to claim ownership transfer on the 25th day of the same month (hereinafter referred to as the "provisional registration of this case"). After November 29, 2016, the Defendant completed the registration of ownership transfer transfer transfer as the principal registration based on the provisional registration of this case on the provisional registration of this case.

(c) the financial status of the BB;

The active and passive properties of this BB at the time of the promise to sell and purchase this case are as follows.

(unit: Won)

No.

Parcel Number

Land Category

Active Property

Active Property

Calculation Criteria

Petty Property

(1)

Gyeonggi 00 00 00 Doh - X

alternative:

00,000,000

Actual transaction price;

(PreContract for Sale)

00,000,000

EE Saemaul Fund

Single

(2)

경기 000 QQ면 QQ리 XXX

Rivers

00,000,000

officially announced value

00,000,000

NewG

(3)

경기 000 QQ면 QQ리 XXX

Rivers

00,000,000

officially announced value

(4)

An OP-dong 32-1 OOOO-ho Heading

Group

00,000,000

Values

00,000,000

00,000,000

00,000,000

H Kim H

J MaximumJ

KK Saemaul Savings Depository

(5)

Gyeonggi RTR TT Y 0000 Market-Polology

Group

00,000,000

Values

00,000,000

00,000,000

00,000,000

00,000,000

LLLL

W

U

National taxes

Total Amount

00,000,000

0,000,000,000

[Reasons for Recognition] Unsatisfy, Gap 1 to 7, 9, 13, 15 to 26

n. Each entry and the purport of the whole pleadings

2. Determination

(a)the existence of preserved claims;

In principle, 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. However, there is high probability that at the time of a fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of a claim, and that the claim should be established in the near future. In the near future, where a claim has been created by realizing such probability in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2011Da76426, Feb. 23, 2012). Meanwhile, in a case where a principal registration has been completed on the basis of a provisional registration, whether a legal act that is the ground of a provisional registration and a legal act that is the ground of the principal registration are not clearly different shall be determined at the time of the juristic act that causes a provisional registration (see, e.g., Supreme Court Decision 200Da7377, Jul.

According to the facts of recognition in light of the legal principles as seen earlier, the legal relations, which form the basis for the establishment of the instant claim, have already occurred at the time of the conclusion of the instant promise by transferring or accepting the instant real estate owned by B B prior to the instant promise to sell and purchase, and it was highly probable that transfer income tax would be imposed in the event of transfer marginal profits due to the disposal of real estate, etc., and thus, it was probable that transfer income tax would have occurred in the near future, and the instant claim was established as the transfer income tax was notified thereafter. Accordingly, the instant claim becomes the

B. The establishment of fraudulent act and the existence of the intention of deception

1) Where a debtor’s property is insufficient to fully repay his/her obligation, and the debtor provided his/her property to a certain creditor as payment in kind or as a security, barring any special circumstance, barring any special circumstance, this constitutes a fraudulent act in relation to other creditors’ interests and thus, constitutes a fraudulent act. The same applies to cases where the debtor’s property provided as payment in kind or as a security is not the only property of the debtor, or its value falls short of the amount of claims (see, e.g., Supreme Court Decision 2007Da18218, Jul. 12, 2007). In addition, in order to revoke a fraudulent act, the intent, which is a subjective element, recognizes the fact that the debtor’s property is reduced by the debtor’s act of disposal of the debtor’s property and thus it is impossible for the creditor to fully satisfy his/her claim because the debtor’s property disposal in relation to a third party is presumed to constitute a fraudulent act, and thus, the beneficiary is liable to prove his/her good faith as at the time of such act (see, e.g.

According to the facts of recognition in light of the above legal principles, this case's trade reservation was concluded between BB and the Defendant for the purpose of providing collateral, which led to the shortage of creditors' joint security or deepening the shortage of joint security already occurred. Thus, this case's trade reservation constitutes a fraudulent act, this case's trade reservation was known to the knowledge that BB would prejudice its general creditors, and the defendant's bad faith is presumed to be the beneficiary.

2) On this issue, the Defendant asserts that: (a) as at the time of the instant promise to sell and purchase, the instant promise does not constitute a fraudulent act; (b) the Defendant entered into the instant promise to sell and purchase the instant transaction in order to secure a loan claim of KRW 000,000,000 against the Plaintiff’s husband and wife; and (c) as such, the Defendant did not know at all of the fact that the B was in arrears or excess of obligations, it is a bona fide beneficiary

(1) First, as to the argument, it appears as seen earlier that the passive property of the BB at the time of the promise to sell and purchase the instant real estate exceeds active property. The Defendant’s assertion on this issue is that the real value of the BB-owned real estate (in particular, Nos. 2 and 3) exceeds the officially announced value, so it is not insolvent, or there is no evidence to acknowledge this. The Defendant’s assertion on this part is without merit.

(2) Next, in light of the following: (a) although the Defendant was a creditor of a loan to BB, insofar as the Defendant had made a provisional registration based on the reservation to sell and purchase the instant real estate and received the instant real estate as collateral in preference to other general creditors, a fraudulent act is constituted in relation to the creditors (the same shall apply even if the instant real estate is not the property). (b) Even based on the Defendant’s assertion itself, it appears that BB had been aware of the shortage or deepening of joint security at the time of the instant promise to sell and purchase, as it would have reached the wind where the Defendant delayed repayment of loans for a long time due to a business depression, and the Defendant and BB would have been bearing a large amount of obligations; and (c) the evidence alleged by the Defendant as well as the evidence cited by the Defendant is insufficient to acknowledge that the Defendant is a bona fide beneficiary, and there is no other evidence to acknowledge this otherwise. The Defendant’s assertion

(c) Revocation of fraudulent act and reinstatement;

Therefore, the reservation of this case constitutes a fraudulent act and thus should be revoked, and the defendant is obligated to implement the provisional registration of this case concerning the real estate of this case and the procedure for cancellation registration of transfer of ownership based thereon.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.