astronomical Support-2013-Shap-10061 ( December 13, 2013)

The gift with no charge that the donee agrees to take over the collateral obligation of the secured property constitutes a fraudulent act.

Where a beneficiary takes over the collateral obligation of the secured real estate while he/she donated real estate owned by him/her, this shall constitute a fraudulent act within the scope of excluding the collateral obligation from the value of the real estate subject to onerous donation.

§ 30. Revocation of fraudulent act

2014Na10210 Revocation of Fraudulent Act

Korea

○ ○

November 21, 2014

January 16, 2015

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. The contract between the defendant and AA is revoked within the limit of KRW 145,00,000,000, which was concluded on November 6, 2009 with respect to the ○○○○○○○○-ri ○○○○○○-○○ Forest, ○○○○○○○○, which was concluded on November 6, 2009.

2. The defendant shall pay to the plaintiff 145,00,000 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

Purport of appeal

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

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is as follows. The 4th to 5th 20th 16th 16 to 5th 20th 20th 20 of the judgment of the court of first instance is as follows. The 7th 9th 9th 9th 9th 7th 9th 7th 9th 7th 7th 9th 7th 7th 7th 4

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2) Determination on whether a fraudulent act was committed and on the defendant's bona fide assertion

A) The debtor's act of selling real estate, which is the only property of the debtor, and replacing it with money easily for consumption or transferring it to another person without compensation, constitutes a fraudulent act against the creditor, barring any special circumstance. Thus, the debtor's intent of prejudice is presumed and the burden of proof that the purchaser or the transferor did not maliciously perform his/her obligation is presumed to exist in the beneficiary (see, e.g., Supreme Court Decision 2000Da41875, Apr. 24, 2001). In addition, in a case where the debtor's property is insufficient to fully perform his/her obligation, if the debtor provided it as payment in kind or as a security to a certain creditor, barring any special circumstance, it would directly compromise the interests of other creditors, and thus, it constitutes a fraudulent act in relation to other creditors (see, e.g., Supreme Court Decisions 2004Da7873, Nov. 10, 2005; 2006Da12046

B) As to the instant case, since the Health Board and AA transferred the ownership of the instant real estate to the Defendant without any specific property other than the instant real estate, in light of the legal principles as seen earlier, even if it was the payment of the Defendant’s loan claims against AA, it constitutes a fraudulent act, and it is presumed that AA’s intent to commit suicide and the Defendant’s bad faith is presumed.

C) As to this, the Defendant believed that there was no other obligation than the Defendant’s obligation to the Defendant, the Defendant did not know at all the fact of delinquency, such as global income tax and value added tax, etc., and thus, the Defendant is a bona fide beneficiary. However, there is no evidence to acknowledge this, and the Defendant’s defense is without merit.

Additional Determinations

Since the Defendant had at least 30,392,075 won loan claims against AA prior to the instant donation contract, the Defendant asserts that the scope of revocation of fraudulent act and compensation for value should be set in consideration thereof. The obligee’s right of revocation is a system that cancels fraudulent act between the obligor and the beneficiary in order to preserve the obligor’s liability property, which is the joint collateral of the claim, and returns the property deviating from the obligor’s general property to the beneficiary or the subsequent purchaser for all creditors, and thus, it would be contrary to the purport of the system as it would result in protecting the beneficiary who has received repayment for his own claim and disregarding other creditors’ interests. Therefore, in the event the beneficiary is the obligor’s creditor, the beneficiary is also one of the creditors who are subject to revocation of fraudulent act, and the beneficiary is also entitled to claim distribution of the total amount of his claim among the total amount of the cancelled creditor’s claims, and thus, the Defendant’s claim to refuse payment of the pro rata amount cannot be viewed as a set-off claim against A’s health amount (see, e.g., Supreme Court Decision 2004Da207).

2. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted as it is reasonable, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.