Korea

Seoul High Court Decision 2001Na14488 delivered on August 1, 201

October 15, 2014

1. A. Revocation of the transfer agreement on each intellectual property right described in the separate sheet entered into on October 26, 2010 between the Defendant and the non-party CCND.

B. The defendant will implement each procedure for cancellation of transfer registration, which was completed with each receipt number on each date indicated in the same list receipt number column as of each intellectual property right listed in the separate list, to the non-party CCCCD Business Co., Ltd.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. The Plaintiff’s taxation claim on the Plaintiff’s non-party C&C business

During the period from July 1, 2007 to October 25, 2009, the Seocho Tax Office under the Plaintiff issued a decision and notice on the non-party CCCCF business (hereinafter “non-party CCF business”) on the aggregate of the corporate tax, wage and salary income tax, retirement income tax, value-added tax, and additional dues thereon (hereinafter “instant tax claim”) as shown in the attached taxation claim list, and the non-party company did not pay it.

B. Conclusion and transfer registration between the defendant and the non-party company

1) While the Nonparty, a representative director of the Defendant, was in office as the representative director of the Nonparty Company, the Nonparty established the Defendant on April 22, 2009, when it was difficult for the Nonparty Company to conduct its normal business due to bad faith. The Defendant entered into a contract with the Nonparty Company to use the patent right, utility model right, design right, trademark right (hereinafter “instant intellectual property right”), as indicated in the separate sheet, and was engaged in business activities using the instant intellectual property right.

2) On October 26, 2010, Nonparty Company concluded a transfer contract of intellectual property rights (hereinafter “instant transfer contract”) or a transfer contract (hereinafter “instant transfer”) with the following content that transferred the instant intellectual property right to the Defendant.

1. On October 2, 2010, the date of repayment under Section 2 (Expenses for Acquisition by Transfer) of Table 2 (Expenses for Acquisition by Transfer) 1. A (the defendant of this case) on the claims of the Korea Technology Credit Guarantee Fund (the defendant of this case) held by Gap (the non-party of this case): on October 2, 2010, Gap shall actively cooperate in the procedures for all documents related to the transfer arising from the conclusion of this contract. Except as otherwise expressly provided for in the above-mentioned contract, Gap shall assist Eul in all documents to enable registration, provisional attachment, and termination of the pledge as follows, except as otherwise expressly provided for in Article 19 (Special Agreement). The expenses incurred shall be borne by (1) of title 630,829,90: (2) of title 5,630,829, and 90: (3) of title 5:00,000,0000 won

C. Property status of the non-party company

1) The non-party company did not have any other property than the intellectual property right of this case at the time of concluding the instant transfer contract, while the non-party company was liable to the Plaintiff for the total tax claim amounting to KRW 713,024,750 and KRW 5,630,829,990 against the Korea Technology Finance Corporation

2) On October 26, 2010, the Director of the Seoul Technology Evaluation Center of the Korea Technology Credit Guarantee Fund prepared and issued a written confirmation to the Defendant and Nonparty Company as follows:

The voting fund in the main text shall not first raise an objection to the change of the patent right if the contract deposit amounting to KRW 1140,000,000 won in cash, KRW 200,000,000,000,000 for the patent (patent number omitted, and KRW 14,000,000 on October 26, 2010 for the patent (patent number omitted, and KRW 100,000,000,000 is deposited as the contract deposit on behalf of the non-party company, and the remaining cash amounting to KRW 100,00,00 is paid until November 30, 2010 for the provisional attachment of the patent (Seoul Dongbu Support 2005Kadan12147), the seizure of the patent (Seoul Southernbu Support 2010ta9872), the order to sell the patent (Seoul Southernbu Support 2010ta13219).

3) On October 26, 2010, the Defendant paid KRW 940,00,000 to the Korea Technology Credit Guarantee Fund, KRW 100,000,000, KRW 100,000, and KRW 1,140,000,00 to the Korea Technology Credit Guarantee Fund, and subrogated for the obligations of the Nonparty Company to the said Korea Technology Credit Guarantee Fund.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 7, Eul evidence 1 (including each number), the purport of the whole pleadings

2. Judgment on the defendant's main defense of safety

A. The defendant's assertion

1) On October 27, 2010, the Korean Intellectual Property Office knew that the instant transfer occurred, as a matter of course, from the Defendant’s receipt of the registration for the entire transfer of the right to the instant intellectual property right. The Plaintiff asserted that the Plaintiff was aware of Nonparty Company’s fraudulent act after receiving the Patent Register from the Korean Intellectual Property Office on June 28, 2013. However, the Korean Intellectual Property Office is an affiliated organization of the Ministry of Trade, Industry and Energy, and the Ministry of Trade, Industry and Energy is the Ministry of Trade, Industry and Energy, and thus, the time when the Plaintiff became aware of the instant transfer should be interpreted as the same as the time when the Korean Intellectual

2) In addition, the Korean Intellectual Property Office must notify and pay the registration tax paid by the transferee to the head of the competent local government, and pay the stamp tax paid by the transferee to the head of the competent tax office on behalf of the transferee. Ultimately, in light of all the above circumstances, the competent tax office under the Plaintiff’s jurisdiction should be considered as having known the fact of transfer of the intellectual property right through the Korean Intellectual Property Office,

3) Even if the above domestic affairs cannot be seen, it is clear that at least the Commissioner of the Korean Intellectual Property Office had known that the Plaintiff (the head of the competent tax office) was aware of the transfer of this case between the non-party company and the Defendant at the time of submitting a report on vicarious payment of stamp taxes on the transfer of this case.

4) According to the standard balance sheet for the year 201 that the non-party company reported electronically on March 23, 2011, it is evident that the industrial property rights are included in the list of intangible property rights. Accordingly, the plaintiff should have known or should have known the non-party company's industrial property rights as a matter of course. However, it is clear that the non-party company's transfer and the non-party company's transfer and disposal of deficits after the date of the electronic declaration (the non-party company's transfer and disposal of deficits on August 29, 201), when the non-party company's transfer and disposal of deficits after the date of the electronic declaration (the non-party company's transfer and collection) were to be made (the non-party company's transfer and collection duty), May 18, 2011, May 23, 2011, and May 31, 2011). It is clear that the transfer and disposal were almost not worth realization.

5) The Plaintiff asserts that, under Article 177 of the Regulations on the Management of National Tax Collection, a delinquent taxpayer, for whom six months have elapsed after the occurrence of delinquency and whose delinquent amount is at least 50,000 won, was aware of the existence of the instant intellectual property right in the course of conducting a tracking investigation at the “Dangerous Property Monitoring Team” and conducting an investigation at the time of tracking the arrears against the non-party company. However, even if the most last part of the national tax claims is, the payment deadline of the securities transaction tax was April 30, 201 and the delinquent amount of the non-party company was at least 70 million won at the time of the Plaintiff’s assertion, the Seoul regional tax office had conducted an investigation at least six months after the said payment deadline on October 30, 201, at least one year later than the said payment deadline, and the Plaintiff was aware of the fraudulent act by the non-party company at the time of the completion of the investigation at the time of the default tracking.

6) In addition, on September 30, 2010, the Plaintiff was clearly aware of the fact that the financial status of the non-party company was in excess of the debt as of September 30, 2010 when the non-party company discontinued its business, including the amount of delinquent tax on the non-party company’s non-party company’s non-party company’s debt, and such circumstance can be sufficiently confirmed as a number of financial statements before the closure of its business that the Plaintiff submitted from the non-party company each year. Therefore, the Plaintiff should not

7) The time when the Plaintiff became aware of the fact of the instant transfer along with the fact of excess of the debt owed by the Nonparty Company and that the Nonparty Company had an intention to kill the Nonparty Company is far more than one year from March 14, 2014, which was the filing date of the instant lawsuit, and thus, it is obvious that the instant lawsuit was subject to the exclusion period.

(b) Fact of recognition;

1) The current status list of materials, such as the property of the person withdrawn from imposition, prepared based on the provision on the collection of national taxes (referring to the “data on the property of the National Tax Service” and “data on the property of the National Tax Service”) is not indicated in the contents concerning

2) The standard balance sheet attached at the time of filing a corporate tax return in March 28, 2008 ( December 31, 2007) that was attached to the non-party company on March 28, 2008 stated KRW 64,980,393 as intangible assets.

3) The financial statements between the 2007 and 2010 of the non-party company, which are kept in the Seocho Tax Office, include the following as intangible assets, etc.:

As of December 31, 2007: As of December 31, 2008, among the intangible assets, 64,980,393 won of other intangible assets: Other 44,66,734 won of the intangible assets: as of December 31, 2009: 22,09,377 won of industrial property among the intangible assets: as of December 31, 2010 of the intangible assets, 9,146,259 won of the intangible assets.

4) As to the fact-finding of this court, the Commissioner of the Korean Intellectual Property Office sent a separate payment guide, as the stamp tax and registration tax are paid at the time of application for the transfer of rights. At the time of the completion of the transfer of rights, there was no document sent separately at the time of 2010, but there was no document sent separately at the time of the completion of the transfer of rights. The details of the transfer of the patent right are not attached to the report

5) On December 23, 2010, the Korean Intellectual Property Office notified Seocho-gu Seoul Metropolitan Government of the details of special collection of the registration tax on November 2010, including the details of collection of the instant intellectual property right, and attached the details of special collection and specification of the registration tax. The details and specification of the above special collection and specification of the registration tax are indicated by the Defendant, the assignee, but are not included in the contents of the Nonparty Company.

6) On December 23, 2010, the Korean Intellectual Property Office notified the Seo-gu Daejeon Tax Office of the details of the payment on behalf of the stamp on November 2010, 2010, including the details of the instant intellectual property right, and attached a report on the payment on the stamp household and a statement on the payment on the stamp household. The above report on the stamp household household and the statement on the payment on the stamp household household are written by the Defendant as the originator, but are not included in the content of the Nonparty Company as the transferor.

7) The content of the instant intellectual property right is not indicated in a written resolution on the disposal of import loss, the review report on the disposal of import loss, the review report on the disposal of deficits, the review report on the disposal of deficits, and the list of data on the status of delinquent property and other property of the non-party company, which was drafted on May 23, 2011. No investigation was conducted on property other than credit card sales claims, and the reasons for disposal of deficits against the non-party company are non-property. The documents and register of the instant intellectual property right and the financial statements of the

8) On March 14, 2013 through the National Tax Service’s website, a civil petition was filed with the purport that “the full recovery of the tax amount related to the non-party company upon winning the National Tax Service’s revocation of fraudulent act.” On March 15, 2013, the above civil petition (hereinafter “instant civil petition”) was received.

9) As to the above civil petition report, a list of reported disposal of the tax delinquent properties was prepared around that time.

The details of the list concealed property contained in the main text: It is unique that the reporter may recover the amount in arrears if he/she files a lawsuit seeking revocation of fraudulent act as a fraudulent act by the non-party in arrears, such as patent right acquired from the non-party in arrears: It is necessary to proceed with the litigation seeking revocation of the fraudulent act.

10) On March 10, 2014, the director of the Seoul Regional Tax Office sent the following documents to the director of the Seoul High Prosecutor’s Office with the title “the direction of filing a lawsuit and the request for designation of a litigation performer”:

2. Table 2. The letter of designation of the litigation performer shall be sent by sending the letter of designation of the litigation performer as set out below.* A period of exclusion (1 year from March 17, 2013 on the 17th day of the 201th day of the 201th day of the 201th day of the 201th day of the 201th day of the 1. A copy of the 1. A copy of the 3. Evidential document (a separate delivery).

11) The provisions governing the collection of national taxes (No. 1971 of the National Tax Service Directive No. 1971 of January 21, 2013) concerning the instant case are as follows.

Article 177 (Scope of Affairs) (the Director of the National Tax Service) of the Operation of an organization exclusively in charge of tracking the arrears of a regional tax office in Chapter X of the attached Table included in the main sentence shall have a regional tax office, which shall take charge of the following affairs:

[Based on recognition] Gap evidence Nos. 6, 11 through 17, Eul evidence Nos. 2 through 9, the Korean Intellectual Property Office, the head of Seocho District Tax Office, and the head of the distribution tax office's fact-finding results and the purport of the whole pleadings

(c) Markets:

1) In the exercise of the right of revocation, the "date when the creditor becomes aware of the ground for revocation" means the date when the creditor becomes aware of the requirements for the right of revocation, that is, the date when the creditor becomes aware of the fact that the debtor committed a fraudulent act with the knowledge that he would prejudice the creditor, so it is not sufficient that the debtor merely knows that he/she conducted a disposal act of the property, and that such a juristic act is an act detrimental to the creditor, that is, that is, that the juristic act is an act detrimental to the creditor, that is, a lack of joint security of the claim or a lack of joint security already in the situation where the claim is insufficient, making it impossible to fully satisfy the claim, and further, that the debtor had the intention of harming (see Supreme Court Decision 2003Da40286, Dec. 12, 2003).

2) The defendant asserts that on September 30, 2010, the plaintiff was aware of the fact that the financial status of the non-party company was in excess of the debt as of September 30, 2010 when the non-party company discontinued its business, including the delinquent tax credit against the non-party company, and the Korean Intellectual Property Office is an affiliated organization of the Ministry of Trade, Industry and Energy, and the Ministry of Trade, Industry and Energy and the plaintiff's respective ministries. Thus, on October 27, 2010, the time when the plaintiff became aware of the transfer of the intellectual property right in this case is the same as the time when the Korean Intellectual Property Office becomes aware of the transfer of the intellectual property right in this case. Thus, the plaintiff knew that the transfer in this case was fraudulent act and that the non-party company knew the non-party company's intention to know the fact that the creditor knew of the fraudulent act's "the date when the creditor was aware of the reason for cancellation" or "the date when the creditor was aware of an individual creditor's act in this case."

3) First, on October 27, 2010, the Korean Intellectual Property Office ought to be deemed to have known of the transfer of the instant intellectual property right at the time when receiving the registration of the transfer of the right from the Defendant and processing it. However, inasmuch as there is no evidence to acknowledge that the Korean Intellectual Property Office was insolvent, it cannot be said that the Plaintiff was aware of the fact that the non-party company committed a fraudulent act knowing that it would prejudice the obligee. Accordingly, the Defendant’s assertion on this is without merit.

4) Furthermore, we examine the facts that the National Tax Service knew that the non-party company had committed fraudulent acts despite the knowledge that it would prejudice the obligee. The following circumstances, i.e., (e., the list of data on the property of the non-party 1 (the DB data of the National Tax Service) were established whenever certain transactions have occurred to the individual or corporation subject to the investigation, and the information on the transfer of the intellectual property right is not included in the list of data such as the property of the above National Tax Service. The list of data on the transfer of the non-party 1 was not included in the list of data on the non-party 2's disposal of the non-party 1, and the non-party 2's non-party 3's non-party 1's non-party 1's non-party 3's non-party 1's non-party 1's non-party 2's non-party 1's non-party 2's non-party 3's non-party 1's non-party 2's non-party 3's non-party 1's non-party 2's non-party 3's non-party 2's non-appellant.

3. Judgment on the merits

A. Formation of preserved claims

As acknowledged earlier, the Plaintiff owned KRW 713,024,750 in total imposed on the non-party company between July 1, 2007 and October 25, 2009, which was prior to October 26, 2010 when the instant transfer contract was concluded.

(b) The intention to commit fraudulent acts and to injure himself;

1) Unless there are special circumstances where a debtor's act of selling real estate, which is the only property of the debtor, and changing it into money easily for consumption, such sale was conducted by considerable sale to meet the legitimate repayment of some creditors, it shall be deemed that the debtor's intent of deception is always presumed to be a fraudulent act against the creditor (see Supreme Court Decision 66Da1535 delivered on October 4, 196).

2) Comprehensively taking account of the above facts and the aforementioned evidence, ① The transfer of this case by the non-party company at the time of the transfer falls under the sole disposal of the property except for the intellectual property right of this case, and barring any special circumstance, the non-party company and the defendant's representative at the time of the transfer were identical to the non-party company and the defendant. Barring any special circumstance, it would be presumed that the non-party company's intent to commit a speculative act against the creditor, and the non-party company's death will be presumed. ② The transfer of this case was made pursuant to the agreement that the defendant paid 1,140,000 won to the non-party company's liabilities to the non-party company 5,630,829,90 won from the Korea Technology Credit Guarantee Fund on behalf of the defendant, the provisional attachment, seizure and sale order of the intellectual property right of this case to the non-party company, and it is reasonable to view that the transfer of this case was made at the price of 00,000 won by the Korea Technology Credit Guarantee Fund.

(c) Revocation of fraudulent act and reinstatement;

1) Therefore, the instant transfer contract should be revoked by fraudulent act, and due to restitution to its original state following the revocation of fraudulent act, the Defendant, the beneficiary, is obligated to implement each procedure of cancellation of transfer registration, which was completed with each receipt number on the date indicated in the separate list receipt number column for the intellectual property right of this case, to the non-party company.

2) At the time of the instant transfer contract, the registration of the establishment of the pledge in the name of El branchCS was completed with respect to the instant intellectual property right, but comprehensively taking account of the overall purport of the entries and arguments in the evidence No. 10 as to the instant intellectual property right, given that there was no claim against the non-party company of El branchCS as of July 21, 2010, the said pledge right is already extinguished, and therefore, the circumstance that the registration of the establishment of the pledge was cancelled after the instant transfer contract does not affect reinstatement.

4. Conclusion

If so, the plaintiff's claim shall be accepted for all reasons, and it is so decided as per Disposition.

[Attachment]

Judges Hong-chul (Presiding Judge) Kang Jae-in Kim Dong-hee

Note 1) This case’s taxation claims that were to be restored to original state during the return of originals are not problematic in itself, and thus, the amount of the preserved claims that were served on or after October 26, 2010 does not separately consider.