Sungnam-2014-Annex-208381 (2015.07.02)

Whether a beneficiary is bona fide or not should be determined reasonably by comprehensively taking into account various circumstances, such as the process, motive, and circumstances after the act of disposal.

The issue of the good faith of the beneficiary in a lawsuit seeking revocation of a fraudulent act shall be determined reasonably by comprehensively taking into account all the circumstances, such as the relationship between the debtor and the beneficiary, the details of and the background and motive for the act of disposal between the debtor and the beneficiary,

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

2015Na203931 Revocation of Fraudulent Act

Korea

AA

Suwon District Court Decision 2014Gahap208381 Decided July 2, 2015

December 17, 2015

January 28, 2016

1. Revocation of a judgment of the first instance;

2. The sales contract concluded on September 30, 201 with respect to the real estate listed in paragraph (1) of the attached Table between the Defendant and KK is revoked. The Defendant will implement to KK the procedure for the cancellation of ownership transfer registration completed on October 13, 201 with respect to the said real estate by the ○○ District Court ○○○ registry office of the ○○○○○○ registry office of the ○○○○○○○○○○

3. The sales contract concluded on September 30, 201 with respect to the real estate listed in paragraph (2) of the attached Table No. 2 between the defendant and KK shall be revoked within the limit of KRW 170,000,000. The defendant shall pay to the plaintiff 170,000,000 with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

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

The same shall apply to the order.

1. Basic facts

A. As to the land outside 14,940 square meters and seven parcels (referring to ○-○, ○-○, ○, ○, ○, ○, ○, ○, ○-○, and ○-○, and ○-○, which are divided into the above land; hereinafter referred to as “the aggregate of each of the above land”) owned by KK, ○○ District Court ○○○○○○○○ Branch ○○○○○○ Branch ○○○○○○ Branch ○○○○○○○○○○ on June 7, 201 and the registration of transfer of ownership in the name of PP PP under receipt on April 3, 201 by a registry office 340○ on June 7, 201 and each of the above land was registered under the name of PP PP on April 13, 202.

B. On September 30, 201, KK concluded a sales contract with the Defendant, who is his wife, to sell each real estate listed in the separate sheet (hereinafter referred to as “real estate listed in paragraph (1)”, “real estate listed in paragraph (2) of the separate sheet,” and “real estate listed in paragraph (2) of the separate sheet,” and “the combination of the above real estate” (hereinafter referred to as “the instant real estate”) for KRW 340,00,000 in the purchase price. The Defendant completed the registration of ownership transfer on September 13, 201 with ○○○○ District Court ○○○○○○○ registry on ○○○○○○○ on 13, 201, issued on October 13, 201, on September 30, 2011, on October 62, 2011, on 200○ District Court ○○○○○○○○○ on 2 real estate as a result of sale and purchase on September 30, 2013.

C. On November 10, 2011, the head of △△ District Tax Office decided to impose capital gains tax of KRW 1,024,407,630 (hereinafter “instant capital gains tax”) on KK on the ground that KK sold the instant SS land to PP as indicated in the instant paragraph (a) and did not pay capital gains tax, and notified KK to pay the said capital gains tax by November 30, 201.

Facts without any dispute over recognition, Gap's statements, Gap's No. 1, 2, 6, 7, 9, 11, and Eul's evidence No. 8 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings.

2. The establishment of a fraudulent act;

(a)the existence of preserved claims;

According to the above facts, after the KK and the Defendant entered into the instant sales contract on September 30, 201, KK completed the registration of transfer of the ownership of the instant land to the PPP, and there was a high probability of the fact that the Plaintiff’s claim for the transfer income tax of this case against KK had already been based on the Plaintiff’s claim for the transfer income tax of this case against KK in the near future, and that the claim is established based on its legal relationship in the near future. In fact, on November 10, 2011, the instant transfer income tax of this case was imposed to KK and its probability was realized in the near future, it is reasonable to deem that the preserved claim exists (see, e.g., Supreme Court Decisions 2013Da5855, Apr. 26, 2013; 200Da37821, Mar. 23, 201).

(b) The state of excess debt of KK;

In light of the purport of the entire pleadings as to Gap's evidence Nos. 3, 4, 5, and 8, Eul evidence Nos. 7, 8, and 9, the real estate of this case (transaction value of 340,000,000) and 4,950 square meters (transaction value of 30,000,000), 00 ○○○○-dong ○○○-dong ○○○ ○○ ○ ○ ○○ ○ ○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 0,000,000 won), 180 square meters on its ground (transaction value of 405,00,000 won), 00, 00 ○○ ○ ○ ○○ ○ ○ ○ 205, 503,000 won on its own 4,005 ○○ ○ ○ 205,000.

According to the above facts, at the time of the instant sales contract, KK’s active property is KRW 1,323,073,925 (=340,00,000 + KRW 30,000 + KRW 405,000,000 + + KRW 16,073,925) + 2,246,40,630 (= KRW 1,024,407,630 + KRW 430,00 + KRW 50,000 + KRW 292,00,000 + KRW 292,00,000 + KRW 430,00,000 + KRW 292,00,000). Since it constitutes a creditor of the instant sales contract, it further deepens the creditor of the instant case.

(c) The doctor of the private will of the KK; and

1) The Defendant asserted that KK and PP were aware that it would not bear the transfer income tax of this case while entering into a sales contract, and that KK would not have any intention to do so at the time of the sales contract of this case. Accordingly, the Defendant asserted that K had no intention to do so.

2) In full view of the respective descriptions of Gap evidence Nos. 10, Eul evidence Nos. 8, 12, and 16 and the purport of the whole pleadings, the following facts are recognized.

�� KKK는 2001. 4. 3. PPP에게 이 사건 SS리 토지 중 산○○-○ 토지를 2,932,800,000원에 매도하면서 계약금 2,191,000,000원은 계약 당일, 잔금 747,800,000원은 2004. 3. 13.까지 지급하기로 하고, 특약사항으로 잔금일 이후부터는 등기일이 지연되어 발생하는 세액 일체를 매수인인 PPP이 부담하기로 약정하였다.

�� KKK는 2002. 4. 13. PPP에게 이 사건 SS리 토지 중 산○○-○○ 토지를 382,500,000원에 매도하면서 계약금 136,300,000원은 계약 당일, 잔금 246,200,000원은 2004. 3. 13. 지급하기로 약정하였다.

�� PPP은 위 각 매매계약에 따라 이 사건 SS리 토지에 관하여 소유권이전청구권가등기를 마쳤고, KKK와 PPP 사이에서는 KKK의 PPP에 대한 차용금 채무로 위 매매대금을 상계하는 등의 방법으로 매매대금 정산이 이루어졌다.

�� 이후 PPP은 이 사건 SS리 토지에 관하여 2004. 3. 15. 채무자 PPP, 채권최고액 1,008,000,000원, 근저당권자 ○○○○○○중앙회인 근저당권설정등기, 2004. 3. 15. 지상권자 ○○○○○○중앙회인 지상권설정등기, 2006. 8. 29. 채무자 QQQ(PPP의 남동생의 배우자이다), 채권최고액 624,000,000원, 근저당권자 ○○○○○○중앙회인 근저당권설정등기를 마쳤고, 이 과정에서 PPP 명의 가등기의 말소와 등기를 반복하였다.

�� PPP은 2002년경부터 이 사건 SS리 토지에 관한 KKK의 토지사용승낙서로 산지개발행위허가를 받아 토목공사를 하는 등 현재까지 위 각 토지에서 개발사업을 진행해 오면서 이 사건 SS리 토지에 관하여 부과되는 각종 세금을 부담해 왔고, KKK는 그 동안 위 각 토지에 대한 권리행사를 하지 않았다.

3) However, KK did not exercise its right to use, benefit from, manage, and dispose of the instant SPP by transferring the right to use, benefit from, and dispose of the instant SPP land to the PPP for about ten (10) years. Even if KK and PPP agree to assume the transfer income tax arising from the delay in the transfer of the registration of the said land between KK and the PPP, this merely means that KK and the PPP may demand the PPP to pay the transfer income tax in lieu of the amount equivalent to the transfer income tax under the internal agreement between KK and the PPPP. However, it cannot be said that KK is exempted from its liability to pay the transfer income tax of this case against the Plaintiff.

Furthermore, in light of the contents of evidence Nos. 3 and 11, KK completed the registration of ownership transfer with respect to the land of this case to PP on June 7, 201, and then directly signed as the reporter of the instant preliminary return of transfer income tax after completing the registration of ownership transfer with respect to the land of this case, and it is also recognized that most of the active assets of the Defendant and the Defendant were disposed of in turn after the conclusion of the instant sales contract.

In full view of these circumstances, the agreement with KK and PP as seen earlier and the subsequent relationship with the use of the instant SP land cannot be deemed as having no intention to cause harm to KK at the time of the instant sales contract. The Defendant’s assertion is without merit.

D. Determination as to the defendant's bona fide defense

The defendant lent 40 million won to KR on May 31, 201, and purchased each of the real estate of this case, including the above loan, with the purchase price of 340,000,000 won. At the time of the sales contract of this case, KR was not aware of the obligation of the transfer income tax of this case at the time of the sales contract of this case, and KR itself did not think that KR itself should bear the transfer income tax imposed on the land of this case. Thus, the defendant defense as a bona fide beneficiary.

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 and the background or motive leading up to the act of disposal between the debtor and the beneficiary, the circumstances leading up to the act of disposal, whether there are no special circumstances to doubt that the terms and conditions of the act of disposal are normal and reasonable, and the circumstances after the act of disposal, etc. (see, e.g., Supreme Court Decision 2013Da206986, Nov.

(6) Examining the reasoning of the lower judgment, the lower court erred by misapprehending the legal doctrine regarding the acquisition and transfer income tax of 00,000,000 won, and exceeding 10,000 won, and exceeding 20,000 won, the lower court erred by misapprehending the legal doctrine as to the acquisition and transfer income tax of 0,000,000 won, and exceeding 30,000,000 won, and exceeding 10,000,000 won, as seen earlier, the lower court erred by misapprehending the legal doctrine as to the acquisition and transfer income tax of 0,00 won, and exceeding 10,000,00 won, and exceeding 15,00,000,000 won, and exceeding 20,000 won, as seen earlier, were to be deemed to have been 10,000 won, and the lower court did not err by misapprehending the legal doctrine as to the acquisition and transfer income tax of 0,000,00 won.

3. Revocation of fraudulent act and reinstatement;

In a case where a juristic act on real estate constitutes a fraudulent act, in principle, the said fraudulent act shall be deemed to have been 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 where a fraudulent act was conducted with respect to the real estate on which the mortgage is established. Therefore, in a case where a registration of creation of mortgage was cancelled due to repayment, etc. after a fraudulent act, ordering the revocation of a fraudulent act to restore the real estate itself would be an order to restore the portion that was not initially secured by the general creditors’ joint security, and would result in a violation of equity. Therefore, an order to cancel a fraudulent act and seek 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, and such value shall be calculated at the time of the conclusion of the fact-finding trial proceedings (see Supreme Court Decision 2001Da3734, Dec. 27, 2001). In addition, when a creditor exercises the right of revocation, in principle, the creditor may not exercise his/her right of revocation exceeding his/her claim amount, and may be included.

In light of the overall purport of the arguments as stated in the evidence Nos. 2 and 4, the market price of the second real estate was 300,000,000 as of the date of the closing of argument, and the second real estate at the time of the instant sales contract was ○○ District Court’s ○○○○○ Branch Registry, which was received on March 31, 201, and 189○○○○○○○○○○○○○○○○, which was received on March 31, 2011, completed the registration of creation of a neighboring mortgage of ○○○○○ Bank, which was 182,00,000, but was revoked on November 22, 2011, which was the date of the instant sales contract. The fact that the actual amount of the secured debt of the second real

Ultimately, the joint collateral value of the second real estate is KRW 170,000,000 after deducting the actual secured debt amount which was cancelled from the market value of the instant real estate, and it is apparent in calculating that the Plaintiff’s instant transfer income tax claim against KK, which is the preserved right, exceeds the above joint collateral value. Therefore, the instant sales contract for the second real estate shall be revoked within the limit of KRW 170,000,000.

Therefore, the sales contract between the defendant and KK on September 30, 201 and the sales contract on the 170,000,000,000 won concluded on September 30, 201 with respect to the 1st real estate and the 2nd real estate should be revoked by fraudulent act. As a result, the defendant, with respect to the 1st real estate, is obligated to implement the procedure for the cancellation of ownership transfer registration completed on October 13, 201 with respect to the 1st real estate by the ○○ District Court ○○○○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

4. Conclusion

The plaintiff's claim of this case shall be accepted in its entirety on the grounds of its reasoning. The judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition by the assent of all of the plaintiff's claims.