Where provisional registration for security has been made on an object constituting a fraudulent act, the method of compensation for the value thereof;

In principle, where a legal act on real estate constitutes a fraudulent act, order the restoration of the real estate itself, such as cancellation of ownership transfer registration, but if a fraudulent act is committed with respect to real estate, such fraudulent act shall be established only within the extent of the balance obtained by deducting the secured claim amount of the provisional registration on security from the value of the real estate.

The contents of the decision shall be the same as attached.

1. The contract of donation concluded on September 12, 2005 between the defendant and Seo-Nam shall be revoked within the limit of KRW 42,500,000.

2. The defendant shall pay to the plaintiff 42,50,000 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

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

The same shall apply to the order.

1. Basic facts

A. On June 20, 1994, Seo-nam opened and operated a corporation, ○○○○○○○-dong, Seoul, ○○○○○○○-5, which operated an individual company engaged in wholesale and retail business for office supplies with the trade name "○○○○-dong," and established and operated a corporation, ○○○○○○○○ (hereinafter referred to as “non-party company”) at the same place from June 19, 200 to the same day.

B. On December 1, 2002, Seocho-Nam transferred 4,800 non-listed stocks issued by the non-party company, the ownership of which is non-indicted 4,800 shares, to the Defendant's dynamic interest in the wife, and to the Hong Dok, South-Nam, and reported the transfer income tax on June 10, 2005.

C. On July 1, 2006, the director of the Busan District Tax Office deemed that the transfer of the above unlisted stocks is a transaction between the specially related parties, and determined and notified the transfer income tax amount of KRW 169,826,440 for the payment period as of July 31, 2006 to the Seo-nam under Article 101 of the Income Tax Act by deeming that the transfer of the above unlisted stocks is subject to the rejection of unfair calculation.

D. From September 12, 2005 to October 21, 2005, the head of the tax office of the Dongwon District Tax Office under the Plaintiff revealed the fact that the non-party company omitted income in the year 2001 and 2002, and disposed of KRW 346,50,000,000, the omitted income amount in the year 2001, and 110,000,000,000, the representative of the non-party company, to the non-party company, and notified the head of the tax office of the Busan District Tax Office under the Plaintiff.

E. Accordingly, on February 5, 2007, the head of the Busan Gold District Tax Office determined and notified 247,787,990 won of global income tax for the year 2001 and 52,907,510 won of global income tax for the year 2002 as of April 2, 2007, respectively.

F. On June 16, 2005, the head of the Seocho District Tax Office under the Plaintiff’s control confirmed that ○○nam received processed tax invoices equivalent to KRW 43,300,000 from ○○○ Company, and notified the Plaintiff’s head of the Busan District Tax Office. On February 5, 2007, the head of the Busan District Tax Office determined and notified 37,970,400 global income tax for the year 200 to ○ Nam Nam on April 2, 2007.

G. On February 7, 2007, the head of the Busan Gold District Tax Office, under the Plaintiff’s control, determined and notified the global income tax of KRW 5,739,730 for the payment period on March 26, 2007, on the ground that ○○○ Special Sales Co., Ltd. received wage and salary income from Nonparty Company and ○○○○ Special Sales Co., Ltd. in 2004, but did not report the addition thereof.

H. Seo-Nam did not pay each of the above capital gains tax and global income tax (hereinafter “instant tax claim”) notified to him, and as of August 1, 2008, the amount of delinquent taxes in Seo-Nam as of August 1, 2008 is KRW 644,694,240 (total of these taxes + KRW 514,232,070 + total of KRW 130,462,170).

I. Meanwhile, on September 12, 2005, Seo-nam donated the real estate listed in the separate sheet (hereinafter referred to as the "real estate of this case") owned by it to the defendant who is the wife (hereinafter referred to as the "the gift contract of this case").

(j) Around February 12, 2000, Seo-nam borrowed KRW 70 million from the door-to-door, and on the security of it, on February 16, 2000, completed the provisional registration of the right to claim the transfer of ownership on the instant real estate (hereinafter “the provisional registration of this case”). However, on September 13, 2005, the Defendant repaid the instant real estate amounting to KRW 70 million on September 13, 2005, which is the next day after the date on which the instant real estate was donated from Seo-nam.

(k) On September 13, 2005, Seo-nam cancelled the provisional registration of this case on September 13, 2005, at the same time, completed the registration of ownership transfer in the future of the defendant as Busan District Court's Busan District Court's receipt of registration office.

T. Seocho-Nam was in excess of obligations at the time of the instant gift agreement.

[Ground of recognition] A without dispute, Gap evidence 1, Gap evidence 2, and 3 evidence 1-5, Gap evidence 4-1-5, Gap evidence 5-7, Gap evidence 8-1, 2, Gap evidence 10, Eul evidence 11-5, Eul evidence 1-1-3, Eul evidence 2 and 3, each statement of Eul evidence 1-2 and 3, witness Seo-Nam-nam, and the purport of the whole pleadings, each of the testimony and arguments.

2. Determination as to whether a fraudulent act was committed

A. It is reasonable to view that the act of making a donation to the Defendant of the instant real estate, which was owned by Seocho-Nam, due to his failure to meet the obligation, constitutes a fraudulent act detrimental to the Plaintiff, who is the obligee, barring any special circumstance. The Defendant’s bad faith as the beneficiary is presumed.

B. As to this, the Defendant did not have any tax notified to Seocho-Nam at the time of the conclusion of the instant gift agreement, and each tax imposed on Seocho-Nam is related to the management of the non-party company in Seocho-Nam. The Defendant was unaware of the occurrence of the instant tax claim by the non-party company, and was unaware of the circumstances that the non-party company would harm other creditors including the Plaintiff due to the instant gift agreement, and thus, the Defendant is a bona fide beneficiary.

However, as a result of the testimony of Nos. 1-3, 2-3, and 3 of the evidence Nos. 1-2 and 3, the testimony of the witness ○○ Nam, and the response of the order of submission of the tax information to the Minister of Land, Infrastructure and Transport of this court, it is not sufficient to reverse the presumption of bad faith against the defendant, and to recognize that the defendant is a bona fide beneficiary, and there is no other evidence to prove otherwise. Therefore, the

3. Methods and scope of reinstatement;

A. In a case where a legal act on real estate constitutes a fraudulent act, in principle, cancellation of the fraudulent act and cancellation of the registration of transfer of ownership, etc. However, in a case where a fraudulent act was committed with respect to real estate on which the provisional registration for security was established, such fraudulent act shall be established only within the extent of the balance obtained by deducting the secured debt amount of the provisional registration for security from the value of the real estate. Therefore, in a case where the provisional registration for security was cancelled due to subsequent repayment, etc. after the fraudulent act, ordering cancellation of the fraudulent act and restoration of the real estate itself to the extent that it would result in a violation of fairness and fairness, and order restoration of the portion that was not the joint security of the general creditors. Thus, as at the time of the closing of argument at fact-finding court, the fraudulent act may be revoked and claimed for compensation for the value thereof within the extent of the balance obtained by deducting the secured debt amount of the provisional registration for security from the value of the real estate at the time of the closing of argument (see Supreme Court

B. At the time of the instant donation contract, the provisional registration of this case was completed in the name of 12,50,000 won in the amount of the secured claim regarding the instant real estate at the time of the instant donation contract, and the Defendant repaid KRW 70 million to ○○ on September 13, 2005, which was after the date of the instant donation contract, and the provisional registration of this case was cancelled on the same day. The Plaintiff’s claim amount against west-west was 64,694,240 in the amount of the Plaintiff’s taxation claim against west-west as of the date of the closing of argument, as seen earlier. According to the appraiser Kim Kim-○’s market value appraisal result, the market value of the instant real estate as of December 23, 2008, which was close to the date of the closing of argument of this case, can be acknowledged as being equivalent to KRW 112,500,000,000,

Therefore, the gift contract of this case is within the scope of the Plaintiff’s tax claim amount, and it shall be revoked within the limit of KRW 42,500,000 after deducting the above secured debt amount from the value of KRW 112,50,000,000. The Defendant, as equivalent compensation, is obliged to pay the Plaintiff the damages for delay calculated at the rate of KRW 42,50,000 and the damages for delay calculated at the rate of KRW 5% per annum as stipulated in the Civil Act from the day following the date this judgment becomes final and conclusive to the day of full payment.

4. Conclusion

If so, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.