Whether it constitutes a fraudulent act

In principle, if a debtor in excess of his/her obligation waives his/her right to his/her share of inheritance while holding a divided agreement on inherited property, the joint security for the general creditor is reduced, it constitutes a fraudulent act against the creditor

Civil Procedure Act

Daejeon District Court Decision 2016Gadan113579

can be ratified as identical even at the time of the closing of argument, and the value thereof shall be the amount of the plaintiff's claim.

It is clear that internal duties are calculated.

Therefore, the defendant's compensation amounting to KRW 94,160,000 = (235,200,000 +

94,360,00 won x 2/7o and the above fraudulent act and double the value as restoration to original state.

On the day following the day when this judgment becomes final and conclusive, which the above Defendants are likely to cause delay in the performance.

Every party shall be liable to pay damages for delay at the rate of 5% per annum prescribed in the Civil Act until the date of full payment.

(c)

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Korea

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on October 15, 2017

on October 29, 2017

1. As to 2/7 of each share of each real estate listed in the separate sheet between the defendant and Hana

The agreement on division of inherited property concluded on May 28, 2015 shall be revoked.

2. The defendant,

(a) 2/7 of each share of the real estate listed in Schedule 1 to 6 shall be implemented to Hana in accordance with the procedure for ownership transfer registration on the ground of the restoration of the true name.

B. The Plaintiff shall pay to the Plaintiff 94,160,000 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 each person;

The same shall apply to the order of the Gu office.

1. Basic facts

A. A. On May 28, 2015, bB agreed upon the relationship between the parties and the division of the inherited property, each of the real estate listed in the separate sheet (hereinafter referred to as "each of the real estate in this case") was the owner of each of the real estate listed in the separate sheet (hereinafter referred to as "the real estate in this case"). On May 28, 2015, c has died on May 28, 2015, and as the heir, there was Han-a and Han-e, the spouse. On May 28, 2015, the Defendant, Han-a and Han-e agreed on division of the inherited property (hereinafter referred to as "the division agreement of the inherited property in this case").

B. On September 18, 2009, the land gg-dong 1319 was sold at a voluntary auction held by the Plaintiff’s bond g-dong g-dong g-dong 1319, and the Plaintiff decided and notified comprehensive real estate holding tax and capital gains tax. The amount of delinquent taxes under Hana is KRW 346,841,550 as of November 7, 2016. The amount of delinquent taxes under Hana is KRW 346,841,550.

Hana, around May 2015, was responsible for the obligation of the Plaintiff such as comprehensive real estate holding tax and capital gains tax, while Hana was in excess of the obligation due to the absence of any specific property.

(d) Disposal, etc. of real estate;

On September 7, 2016, the Defendant completed the registration of creation of superficies with respect to the instant real estate No. 7, which was the mortgagee hh agricultural cooperatives, the maximum debt amount of 195,000,000, and hh agricultural cooperatives with superficies with superficies over the duration of 30 years. On April 7, 2016, the Defendant sold the instant real estate No. 8 at KRW 94,360,00, and completed the registration of transfer of ownership on September 29, 2016. [Grounds for Recognition] There is no dispute over the instant real estate, each of the descriptions of No. 1 through 6, and the purport of the entire pleadings.

2. The assertion and judgment

(a) Occurrence of the right to revoke the fraudulent act;

1) Since the Plaintiff’s comprehensive real estate holding tax and transfer income tax claims against Hana are claims arising prior to the agreement on division of the instant inherited property, they constitute preserved claims for revocation of fraudulent act.

2) As a result, an agreement on division of inherited property becomes final and conclusive with respect to inherited property, all or part of which were provisionally owned by co-inheritors upon commencement of inheritance, or by performing as a new co-ownership relationship, the reversion of inherited property becomes final and conclusive, and in its nature, it is a juristic act aiming at property rights, and thus, it may be subject to the exercise of the right to revoke a fraudulent act. Meanwhile, barring any special circumstance, an obligor’s act of either replacing the inherited property with money which is only the sole property of his/her own, or transferring it to another person without compensation, becomes a fraudulent act against a creditor, barring any special circumstance. Therefore, even in cases where a debtor in excess of his/her obligation already renounced his/her right to the inherited property upon the division agreement on the inherited property, thereby falling under a fraudulent act against a creditor (see Supreme Court Decision 2007Da2

According to the above facts of recognition, the agreement on the division of the inherited property of this case between the defendant and the defendant on the division of the inherited property of this case is deemed to constitute a fraudulent act against the plaintiff, a creditor, with the purport that Hana shall vest in the defendant's share of the inherited property of this case in excess of debt. In addition, Hana seems to have been aware that the above act was at the time, and the defendant, a beneficiary, was also presumed to have known

B. Defendant’s defense

1) The defendant did not know that the agreement on division of the inherited property of this case would prejudice the plaintiff as the creditor.

2) In a lawsuit seeking the revocation of a fraudulent act, it means that the beneficiary was unaware of whether the fraudulent act was in good faith or not, i.e., the act detrimental to the common obligees’ joint security. In a lawsuit seeking the revocation of a fraudulent act, the beneficiary bears the burden of proving himself/herself. In such a case, there should be objective and objective evidence, etc. supporting that the beneficiary was acting in good faith at the time of the fraudulent act, and it should not be readily concluded that the beneficiary was acting in good faith at the time of the fraudulent act solely on the debtor’s unilateral statement or a statement that was merely a third party’s explanation (Supreme Court Decision 2009Da60466 Decided July 22, 2010).

[Reference]

3) In full view of the purport of the entire pleadings in the statements in Category B Nos. 1 and 2, Han-a was in office.

The real estate in Hana is sold by auction in 2008 and 2009 after the default of the k Pharmaceutical industry (State).

In fact, the plaintiff's comprehensive real estate holding tax and capital gains tax claims were generated in the process, and the plaintiff was generated in 2011.

1. Around 14. A of notice of advance notice of taxation and February 1, 2012, and Hana of notice of payment, around 2008:

From around the time, contact with families was interrupted, and the resident registration of Hana was made in March 2009, and was made without permission.

The right was cancelled, and the fact that the registration was re-registered on June 30, 2015 can be recognized, and the defendant according to this,

It can be seen that the Plaintiff's comprehensive real estate holding tax or transfer income tax credit was unaware of the existence thereof.

However, even according to the defendant's argument, the defendant's agreement on division of the inherited property of this case

was aware that the salary was in excess of the debt, and in light of the above legal principles, the above person

The defendant's bad faith, which is the beneficiary only by the facts and the evidence presented by the defendant

The presumption is insufficient to acknowledge good faith and to reverse the presumption, and there is no other evidence to acknowledge it. Accordingly, the respondent has no other evidence to prove it.

The above assertion is not accepted.

(c) Methods of reinstatement;

1) Therefore, the portion of inherited property with respect to 2/7 shares, which are shares of Hana, among each of the instant real property

agreement shall be revoked as a fraudulent act, and the defendant shall be obligated to return such agreement to its original state.

(c) Where a creditor’s revocation of fraudulent act and a claim for restitution are acknowledged, a beneficiary shall be subject to restitution;

In order to return the object of the act to the debtor, it is impossible to return the original object.

(b) Where it is substantially impracticable to restore it, the value of the object of fraudulent act as performance;

any third party with respect to the subject matter after the fraudulent act, such mortgage, superficies, etc.

acquisition of such right, the beneficiary shall recover the subject-matter without limitation, such as mortgage.

barring any special circumstance, such as transfer, a creditor shall file a claim against a beneficiary for transfer.

In lieu of the return of the original property, the equivalent of the value may be claimed, and after the fraudulent act, the property may be transferred to it.

(2) If a third party in good faith obtains a mortgage, such

order the full amount of the value of the real estate held by the general creditors as a joint security at that time;

must be (see, e.g., Supreme Court Decision 2003Da40286, Dec. 12, 2003).

2) First, the defendant shall restore to Hana each of the real estates of this case 1 to 6.

2/7 Obligations to implement the procedure for ownership transfer registration due to the restoration of the authentic title.

section 1.

3) The third party’s right to each of the instant real estate Nos. 7 and 8 as follows:

Since the Plaintiff acquired the Defendant, the Plaintiff may seek compensation for its equivalent value against the Defendant.

With respect to the scope of the value that the defendant should compensate, the whole arguments for each of the above evidence

Comprehensively taking account of the purport, the public notice of the instant 7 real estate around November 2016, which is close to the date of closing the argument in the instant case.

The market value is 235,200,000 won, and 94,360,000 for the market value of the 8 real estate. This is recognized.