The sales contract of this case is presumed to constitute a fraudulent act, and the intention of the debtor and the defendant's death is presumed.

It is unclear whether the money was actually paid at the time of the instant sales contract, and even if considering the relationship with the Defendant, which is the fact that the delinquent person had been residing in approximately seven months after the real estate was sold, the fact that the instant sales contract was judged to be an exceptional circumstance (it is reasonable to deem that it was known that the instant sales contract constitutes a fraudulent act) and other circumstances consistent with the Defendant’s bad faith presumption.

2013 Gohap6857 Revocation of Fraudulent Act

Korea

United StatesA

May 29, 2014

June 19, 2014

1. A. A. The sales contract for real estate stated in the separate sheet No. 1 signed on June 12, 2012 between the Defendant and Nonparty ParkB (OO-O-O-OOO-O-O-O-O-O-O, O-O-2 CCC apartment 1102, 703) is revoked within the scope of OO-O-O-O-O-O-O-O-O-O-O-O-2.

B. The defendant shall pay to the plaintiff OOO and the plaintiff 5% interest per annum from the day following the day when the judgment of this case became final and conclusive to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 10% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

Cheong-gu Office

The sales contract for real estate listed in the attached Table 1 signed on June 12, 2012 between the defendant and the non-party ParkB shall be revoked.

1. Basic facts

A. Formation of a taxation claim

Around May 2012, the director of the tax office affiliated with the Plaintiff issued a tax investigation on ParkB by ascertaining that ParkB had omitted a return of income from 2007 to 2011 with respect to the business establishment of "DDD it operates," and then notified ParkB of the fact that it had entered into a tax investigation on ParkB from August 1, 2012 to March 1, 2013, as shown in the attached Table 2, with regard to the value-added tax office from 1, 2007 to 2, 2011, as shown in the attached Table 2, and the global income tax office from 2007 to 2011 (i.e., OO. - OO. 207 to 209).

ParkB concluded on June 12, 2012 a sales contract to sell real estate listed in the separate sheet No. 1 (hereinafter referred to as "the apartment of this case") owned by the defendant who is the head of a high school and his/her owner to OB (hereinafter referred to as "the sales contract of this case"), and completed the registration of ownership transfer under the name of the defendant as of June 14, 2012 by the receipt of this court No. 594777."

"1) As of June 12, 2012, ParkB had no real value active property other than the apartment of this case, the OO car owned by it, and 6,000 shares of DDD Co., Ltd. ( ParkB transferred all the above shares to OE on June 20, 2012) on the other hand, on the other hand, the FF Bank (hereinafter referred to as the "FF Bank"), in addition to the above OOO's tax liability, was liable for the loans of the FF Bank (hereinafter referred to as the "OF Bank") in addition to the above OOO's tax liability. (2) On the other hand, the above apartment of this case had been revoked as the maximum debt amount under the name of 1437O10,000 won received on October 28, 2005, and each of the above 203O280,000 won received each of the above maximum debt amount.

[Reasons for Recognition] Facts without dispute, each entry of evidence Nos. 1 through 10, 12 (including branch numbers; hereinafter the same shall apply), and the purport of the whole pleadings

2. Whether the fraudulent act is constituted;

(a) the establishment of preserved claims and the state of excess of liabilities of ParkB;

The tax liability is established as a matter of course without the need to recognize the fulfillment of the taxation requirements, as well as the special act of the tax authority or the taxpayer for the establishment of the tax liability when the tax liability satisfies the taxation requirements stipulated by law (see Supreme Court Decision 2008Da84458, May 14, 2009). The value-added tax and the global income tax are established when the taxable period expires, as prescribed by Article 21(1)1 and 7 of the Framework Act on National Taxes.

According to the facts as seen earlier, the obligation to pay the value-added tax and global income tax of ParkB was naturally established on December 31, 201, which is the last taxable period. However, since the taxation amount due to the omission by ParkB was finalized after the omission by the return by the ParkB, the Plaintiff’s tax claim against ParkB is not only a preserved claim of the obligee’s right of revocation, but also includes the small property of the ParkBB, so ParkB had already been in excess of the obligation (Therefore, the Defendant’s assertion that the Plaintiff’s tax claim against ParkB was established on August 1, 2012, which is the sales contract of this case, and thus, cannot become the preserved claim of the obligee’s right of revocation is without merit).

B. Establishment of fraudulent act

According to the above facts of recognition, ParkB aggravated the status of excess by selling the apartment of this case, which appears to have the most valuable value as the collateral in excess of the debt, to the defendant, and it is reasonable to view that the sales contract of this case constitutes an act detrimental to the joint security of the general creditors of ParkB.

Although the Defendant asserts that ParkB’s purchase price of the apartment of this case, which he received from the Defendant, is used in repayment of the due debt to ParkB’s customer, it does not constitute a fraudulent act. However, there is no evidence to reverse the above judgment, and there is no reason to deem that the Defendant’s assertion is not reasonable (as seen earlier, it is not clear whether ParkB received the purchase price from the Defendant).

C. Whether the defendant acted in good faith

In this regard, the defendant did not know that the sales contract of this case was a fraudulent act against the creditors of ParkB.

Since the beneficiary's bad faith is presumed in a lawsuit seeking revocation of a fraudulent act, the beneficiary is liable to prove his/her good faith in order to be exempted from his/her responsibility. In such cases, the issue of good faith shall be determined reasonably in light of logical and empirical rules, comprehensively taking into account the relationship between the debtor and the beneficiary, the details of and the background or motive for the act of disposal between the debtor and the beneficiary, the circumstances leading to the act of disposal, whether there are no special circumstances to doubt that the transaction conditions of the act of disposal are normal and reasonable, and circumstances after the act of disposal, etc. (see, e.g., Supreme Court Decision 2013Da206986, Nov. 28,

In light of the following circumstances, it is not sufficient to recognize that the Defendant was bona fide at the time of the instant sales contract, and there is no other evidence to acknowledge it.

In other words, according to the statement in Gap evidence No. 5, ParkB received OB as the down payment on the date of the instant sales contract, and prepared a receipt to the effect that it was paid OB as the down payment on June 24, 2012, and issued it to the defendant, but it is unclear whether the above money has been actually paid because there was no financial data to support each of the above payments. ② The witness ParkB stated to the effect that the purchase price was mainly paid in cash and, in particular, the balance was received in cash contained in the shopping bags. However, according to the witness's testimony, it is difficult to believe that it was not clear the source of the above money, and even according to the usual business practices, even according to the witness's testimony, it does not constitute the defendant's assertion that the above apartment was in bad faith after the tax investigation of this case was conducted, and thus, it constitutes the defendant's assertion that the above apartment was in bad faith and the defendant's assertion that it did not have any objective evidence to the effect that the above apartment was sold.

In the event that real estate on which a mortgage is established is transferred by a fraudulent act, such fraudulent act shall be established only within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate. Therefore, in the event that the registration of establishment of a mortgage is cancelled by repayment, etc. after a fraudulent act, 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 mortgage from the value of the real estate (see, e.g., Supreme Court Decision 2002Da41

As seen earlier, in full view of the following facts: (a) each collateral security was cancelled in the name of FF Bank to secure the obligation to pay for the total amount of KRW 00,00 after the conclusion of the instant sales contract; (b) evidence No. 7 and witness ParkB’s testimony, the average market price around July 19, 2013 of the apartment complex whose size and size are the same as that of the instant apartment complex was 00, and barring any special circumstance, it is confirmed that the market price of the instant apartment is the same amount as that of the instant apartment as of the date of the closing of argument. Therefore, the instant sales contract should be cancelled within the limit of KRW 0,00 (the Plaintiff’s claim for cancellation of the entire sales contract of this case in excess of the above limit among the Plaintiff’s claim). Accordingly, the Defendant is obligated to recover the damages for delay calculated at the rate of 5% from the day after the date of conclusion of the argument to the Plaintiff.

4. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit.