Suwon District Court Sungnam Branch 201Gahap10255 (No. 12, 2012)

It is reasonable to deem that the repayment of the debt borrowed by financial evidence is made, and it does not constitute a fraudulent act.

The agreement between the debtor and the defendant on the donation of money concluded on May 29, 2009 constitutes a fraudulent act and the amount paid to the defendant on June 1, 2009 is deemed to have been actually repaid by the debtor to the defendant's living together under the financial evidence, and so long as the wife delegates the right to receive payment to the defendant, it shall not be deemed to have been a fraudulent act.

Article 30 of the National Tax Collection Act (Cancellation of Fraudulent Act)

2012Na80776 Revocation of Fraudulent Act

Korea

IsaA

Suwon District Court Decision 2017rhap10255 Decided September 12, 2012

July 5, 2013

July 31, 2013

1. The part against the defendant in excess of the following part of the judgment in the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

The contract of donation between ChoB and the defendant on May 29, 2009 shall be revoked.

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 to the day of complete payment.

2. The defendant's remaining appeal is dismissed.

3. The total costs of a lawsuit shall be four minutes, and three of them shall be borne by the plaintiff, and the remainder by the defendant respectively.

1. Purport of claim

The agreement on the donation between ChoB and the defendant of May 29, 2009 and the agreement on the donation between OOOOO members concluded on June 1, 2009 shall be revoked. The defendant shall pay to the plaintiff the amount calculated by deducting 5% per annum from the day after the date when the judgment of this case became final and conclusive to the day of complete payment.

2. Purport of appeal

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

1. Basic facts

A. Tax claims against the Plaintiff’s ChoB

1) On May 8, 2009, ChoB completed the registration of ownership transfer with respect to each of the above lands and buildings on the same day after selling O-dong O-dong O-dong O-dong O-dong 7-2 miscellaneous land and 2-2,272 square meters and above-ground buildings, O-dong O-O-dong O-dong 7-3 miscellaneous land and O-O-dong 2,272 square meters and above-ground buildings to the Korea National Housing Corporation.

2) As above, ChoB notified the Korea National Housing Corporation of the payment of OOB total of the capital gains tax OOCO and the special rural development tax OOOB(the date on which the tax liability is established, May 31, 2009, and August 31, 2010) on August 11, 201, when it sold the above land and buildings to the Korea National Housing Corporation and made transfer registration, and the Plaintiff did not report the capital gains tax base, and on August 1, 2010, the Plaintiff is delinquent until now.

(b)payment of money to the Defendant by SectionB;

1) On May 27, 2009, ChoB received from the Korea Land and Housing Corporation that succeeded to the Korea Land and Housing Corporation a claim for land compensation equivalent to the same amount in lieu of the payment of approximately KRW 100,000 won, deducting the secured debt of collateral security established on each of the above land and buildings, among each of the above purchase price OOB.

2) On May 29, 2009, on the other hand, the ChoB transferred OB to the Defendant’s account (Account Number: OOOOOOO) of the Defendant’s Republic of Korea (hereinafter “OOOOOO”) a part of the cash remaining after the said claim for land compensation was repaid to a financial institution, etc., and on June 1, 2009, OOOOOOO was transferred to the Defendant’s National Bank account (department number: OOOOOOO).

[Ground of Recognition] The facts without dispute, the entries in Gap evidence 1 to 3 (including each number), and the whole purport of the pleading

2. Determination

A. Formation of preserved claims

Although 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 in principle, it is highly probable that at the time of the fraudulent act, there has already been a legal relationship that serves as the basis of the establishment of the claim, and that the right should be established in the near future in the near future, and where a claim has been created as a result of the realization of the 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 2000Da37821, Mar. 23,

Income tax on the gains from transfer of health and assets in this case is a tax on preliminary return and payment, and on the last day of the month (the month in which the date of the transfer of assets belongs) in which the amount that serves as the tax base occurs as the interpretation of Article 21(2)2 of the Framework Act on National Taxes, etc. (see, e.g., Supreme Court Decision 88Nu2519, Oct. 13, 1989). ChoB sold the above land and buildings on May 8, 2009, and the above tax obligation on capital gains was abstractly established on May 31, 2009, and it constitutes the basic legal relationship on capital gains tax claims imposed thereafter, and thus, it is highly probable that the Plaintiff was liable to pay capital gains tax on August 11, 2010, and thus, the said tax claim right becomes final and conclusive in the near future.

The Defendant asserts that, since ChoB received a certificate of land compensation claim with a five-year maturity in lieu of the payment of the purchase price on May 27, 2009, it is difficult to deem that there was a legal relationship that forms the basis for establishing a taxation claim since the purchase price cannot be deemed to have been actually paid. However, as seen earlier, the Defendant’s above assertion without any need to further examine whether the aforementioned obligation to pay the transfer income tax was abstractly established on May 8, 2009 by selling the above land and buildings, i.e., the last day of that month, and May 31, 2009, which constitutes the basic legal relationship of the transfer income tax claim, which was imposed later, and the occurrence of the basic legal relationship depends on the actual payment of the purchase price.

(b) the state of the property of SectionB;

On May 29, 2009 and June 1, 2009, in which the first instance court stated Gap evidence and evidence set forth above, Eul evidence Nos. 4 through 9, Eul evidence Nos. 3, 14, 15, and 17 (including serial numbers), comprehensively takes into account the overall purport of the arguments and the entire purport of the arguments, and on June 1, 2009, in which ChoB paid OO to the defendant, the property status of ChoB was described as follows, and according to this, ChoB was in excess of its obligation as of May 29, 2009 and June 1, 2009:

[Attachment 1. 2. 5. 29. 5. 2009

Active Property

Petty Property

Ministry of Justice

Dong

United States

Market Price

Covered Debt

OOOO-dong O-dong 1 floor

OOO

OCF

OOO

OO-dong O-dong No. 202

OOO

Enterprise Bank

OOO

AD

OOO

OO-dong O-dong No. 302

OOO

Enterprise Bank

OOO

Deposit for lease on deposit

OOO

Sub-committees

OOO

Sub-committees

OOO

Land compensation bonds;

OOO

Capital gains tax arrears

OOO

The sum of other accounts balance;

OOO

F Total Liability

OOO

F Comprehensive Assets: F. F.

OOO

GGG Corporation's Obligations

OOO

GG Corporation's assets:

OOO

Corporate Bank Obligations

OOO

H Claim for Reimbursement against H Industry (State)

OOO

Obligations with respect to EE

OOO

The aggregate of active property

OOO

Total amount of small-sized property

OOO

[Attachment 2. 6. 1. June 1, 2009:

Active Property

Petty Property

Ministry of Justice

Dong

United States

Market Price

Covered Debt

OOOO-dong O-dong 1 floor

OOO

OCF

OOO

OO-dong O-dong No. 202

OOO

Enterprise Bank

OOO

AD

OOO

OO-dong O-dong No. 302

OOO

Enterprise Bank

OOO

Deposit for lease on deposit

OOO

Sub-committees

OOO

Sub-committees

OOO

Land compensation bonds;

OOO

Capital gains tax arrears

OOO

The sum of other accounts balance;

OOO

F Total Liability

OOO

F Comprehensive Assets: F. F.

OOO

GGG Corporation's Obligations

OOO

GG Corporation's assets:

OOO

Corporate Bank Obligations

OOO

H Claim for Reimbursement against H Industry (State)

OOO

Obligations with respect to EE

OOO

The aggregate of active property

OOO

Total amount of small-sized property

OOO

The defendant asserts that as of May 29, 2009 and June 1, 2009, the FF Integrated Logistics Co., Ltd. had a loan claim of OOOB, and if it is included in active property, OB did not have a debt excess as of May 29 and June 1, 2009.

However, there is insufficient evidence to acknowledge that CB had a loan claim against FF Integrated Logistics Co., Ltd. on the sole basis of the statements in Eul and Eul evidence Nos. 8 and 16, and there is no other evidence to acknowledge otherwise. Furthermore, according to the evidence Nos. 8, even if it is assumed that FF Comprehensive Logistics claims of FFB Co., Ltd. were located as alleged by the Defendant, and even if the first loan to FF Comprehensive Logistics was made on May 30, 2009, the first loan to FF Comprehensive Logistics Co., Ltd. was made on May 30, 2009, and thus, it cannot be deemed that there was a loan claim at the time of payment of FF Integrated Logistics Co., Ltd. on May 29, 2009. Furthermore, even according to the Defendant’s assertion, even if the claim against FF Integrated Logistics as at the time of June 1, 2009 includes active property, it is evident that the status of FB was exceeded at the time of calculation.

C. Whether the act constitutes a fraudulent act

1) Relevant legal principles

In cases where a debtor donated his/her own property to another person in excess of his/her obligation, such act constitutes a fraudulent act, barring special circumstances, and where the debtor, while over his/her obligation, would result in a decrease in the joint security of other creditors by repaying his/her obligation to a specific creditor, and the repayment is not, in principle, a fraudulent act unless the debtor, in collusion with some creditors, made performance with the intent of undermining other creditors, as a matter of principle (see, e.g., Supreme Court Decisions 2005Da62167, Jun. 15, 2006; 2005Da28686, May 31, 2007).

In addition, the creditor who seeks revocation of a fraudulent act asserts that it constitutes a gift to the beneficiary of the debtor, and the beneficiary asserts that it was received as a repayment for the existing obligation, and it is not only denied the creditor's assertion, and as seen in the above legal principle, the contents of the creditor's assertion and proof are significantly different depending on whether the debtor's monetary payment is a gift or a repayment. Therefore, in order to recognize the above monetary payment as a fraudulent act, it should be proved that the fact that the monetary payment constitutes a gift, but it constitutes a gift, it should be proved that there are special circumstances mentioned above, such as the creditor's intent to harm the creditor, and the burden of proof is in the part of the creditor's assertion of the fraudulent act (see, e.g., Supreme Court Decision 2005Da28686, May 31, 2007).

2) Determination on the payment of OOO as of May 29, 2009

The plaintiff asserts that the act of ChoB paid OO on May 29, 2009 to the defendant was a donation to the defendant, and that the defendant was paid part of the OO's loan to ChoB.

According to the statement in Eul evidence No. 2, it is recognized that each of the deposits made by the OOO members on January 14, 2002, and January 19, 2009, from the incorporation of the defendant's name to the account under the name of ChoB.

However, ① AB and the Defendant are legal couples, ② there exists a seven-year interval between the time when the Defendant deposited OOB to the ChoB and the time when the Defendant deposited OOB, and there is no transaction data between the Defendant and the ChoB, and ③ there is no evidence to prove that ChoB paid interest on the amount borrowed from the Defendant on a regular basis, and ④ there is no evidence to prove that the amount of the loan to ChoB as claimed by the Defendant did not coincide with the amount paid to the Defendant on May 29, 2009, and ④ it is reasonable to view that the payment after seven-year period from the time when the Defendant first borrowed the money to the Defendant on May 29, 2009 as gift in light of the empirical rule-based exceptional circumstances.

The fact that ChoB donated OOOO to the Defendant on May 29, 2009 that it was in excess of the obligation as of May 29, 2009 was recognized as above, and that it was known that ChoB made a donation of money to the Defendant by the Defendant was the act of reducing the creditors' joint security, and that it would prejudice the creditors including the Plaintiff by the above donation in light of the property status of ChoB at the time, the time when the donation was made, the time when the donation was made, and the relationship between ChoB and the Defendant, and that the Defendant, the beneficiary, is presumed to have acted in bad faith.

3) Determination as to the payment of OOO on June 1, 2009

The plaintiff asserts that the act of payment of the above money is a donation, and the defendant asserts that the OOOO which the EE, a female farmer, lent to NAB, was kept on behalf of the defendant for EO.

In light of the following circumstances as revealed in light of the evidence No. 1. 3 (including the number in case of natural disaster) and evidence No. 7-1, and the evidence No. 7-1, as well as the overall purport of the testimony and arguments of EE by E-wit witness E-wit witness, it can be deemed that E-B lent OO to E-B five times from February 15, 2005 to April 22, 2008, and ChoB remitted OOOB to the Defendant on June 1, 2009 for the purpose of paying the above loan to E-E, and there is no evidence to deem that the payment of the above money was made in collusion with E-E and thereby there is no intention to prejudice other creditors. Accordingly, the Plaintiff’s assertion that the payment of the money was made on the premise that it was a donation is without merit.

1. The following financial transaction details exist between the PEB and the E who stays:

Date of Transaction

drawee- Recipient

Amount

February 15, 2005

EE?B

OOO

March 16, 2005

CBB ? EE

OOO

April 16, 2005

OOO

May 16, 2005

OOO

June 16, 2005

OOO

July 15, 2005

OOO

August 16, 2005

OOO

September 15, 2005

OOO

October 06, 2005

EE?B

OOO

October 18, 2005

CBB ? EE

OOO

November 16, 2005

OOO

December 16, 2005

OOO

January 16, 2006

OOO

February 16, 2006

OOO

March 16, 2006

OOO

April 18, 2006

OOO

May 15, 2006

OOO

June 15, 2006

OOO

July 18, 2006

OOO

August 16, 2006

OOO

September 2, 2006

OOO

September 15, 2006

CBB ? EE

OOO

October 16, 2006

OOO

November 15, 2006

OOO

November 22, 2006

OOO

January 16, 2007

OOO

February 15, 2007

OOO

March 16, 2007

OOO

April 16, 2007

OOO

May 7, 2007

OOO

May 16, 2007

CBB ? EE

OOO

June 15, 2007

OOO

August 17, 2007

OOO

September 18, 2007

OOO

October 6, 2007

OOO

October 16, 2007

OOO

November 15, 2007

OOO

on January 23, 2008

OOO

December 1, 2008

OOO

on 19, 2008

OOO

on October 14, 2008

OOO

on October 15, 2008

OOO

April 22, 2008

E-B

OOO

May 16, 2008

CBB ? EE

OOO

June 16, 2008

OOO

July 15, 2008

OOO

August 17, 2008

OOO

September 17, 2008

OOO

September 18, 2008

OOO

October 11, 2008

OOO

2. Following 2O.O. 15, 205, and 2O. 6 O. 20, and 200,000,000 won paid to 7O. 6O. 20,000,000 won to 7O. 20,000,000,000 won paid to 7O. 20,000,000,000 won paid to 7O. 20,000,000,000 won paid to 10,000,000,000 won to 20,000,000,000 won paid to 20,000,000 won to 7O. 6,00,000,000 won paid to 20,000,000 won to 20,000,000 won to 20,000,00

In full view of the fact that: (a) each time E pays additional money to EB, the amount of money paid to E was increased by 1% of the amount paid to E; (b) the amount was paid to E; and (c) the amount was paid periodically without any connection with the business run by EB; and (d) it is difficult for EBB to explain the reasons why eB regularly exchange money with E and explain the reasons why eB would not be related to the business run by eB; (b) the amount paid to eB constitutes loans; and (c) the amount of money paid to 1% of the loan was paid to eB during each month.

③ Meanwhile, in full view of the fact that the amount paid by the ChoB to the Defendant on June 1, 2009, as OOOB, appears to have been delegated management of the amount received by the Defendant, by requesting the ChoB to the Defendant on the receipt of the right of payment and payment, and that the transfer of the amount to the Defendant was made to the Defendant on five occasions from February 15, 2005 to April 22, 2008, and that the E was accurately consistent with the OOE’s leased principal loan granted on five occasions, and that the her husband was unaware of the above loan, but the existence of the above loan was known, there was a concern that the her husband would cause infertility between the husband and the Defendant, by requesting the ChoB to transfer the amount to the Defendant, and that the OE was transferred to the Defendant with the intent to pay the amount to the E, and that there was no effect of the E’s receipt or delegation of the payment to the Defendant.

4) Sub-committee

Therefore, the contract of donation between ChoB and the defendant on May 29, 2009 constitutes a fraudulent act, and thus, it is impossible or considerably difficult to refund originals of money which is the object of the fraudulent act, the defendant is obliged to pay to the plaintiff damages for delay calculated at the rate of 5% per annum from the day after the day when the judgment became final and conclusive to the day when the payment is complete, to the day of full payment as stipulated in the Civil Act.

3. Conclusion

If so, the plaintiff's claim of this case is justified within the scope of the above recognition, and the plaintiff's claim of this case is dismissed as it is without merit. Since the judgment of the court of first instance has a different conclusion, the part against the defendant who ordered cancellation of the gift contract of June 1, 2009 and payment of OOO and compensation for delay thereof exceeding the above recognition scope shall be revoked, and the plaintiff's claim corresponding to the cancelled part shall be dismissed, and the remaining appeal of the defendant shall be dismissed as it is without merit, and it shall be so decided as per Disposition.