Daejeon District Court Decision Decision 2007Gahap4208 (No. 25, 2008)

Whether a fraudulent act is committed when a company in arrears transfers the ownership of a vehicle to a third party.

In addition to cargo transportation services, it does not constitute a fraudulent act, since it is not an act of reducing the liability property of a company to transfer the ownership of a branch passenger to a branch passenger or a third party by a branch passenger.

The contents of the decision shall be the same as attached.

Article 30 (Cancellation of Fraudulent Act)

1. The plaintiff's appeal is all dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance court shall be revoked; the sales contract concluded on June 26, 2006 between Defendant 1, 000 and 00. 206; the Defendant 000 tourism Co., Ltd. shall be revoked; the procedure for cancellation of the registration of transfer of name which was completed on June 26, 2006 to 00, 2006; the procedure for cancellation of the registration of registration of transfer of name which was completed on June 27, 2006 between Defendant 2, 000 and 206. The registration of cancellation on the 006,006, 206, 206, 300, 2006, 206, 300, 2006, 206, 2006, 206, 30,000, 6,000, 206, 206, 206, 36,006.

1. Basic facts

A. Formation of a taxation claim

○ Tourism Co., Ltd. (hereinafter “○○ Tourism”) made a field investigation of corporate tax from May 24, 2005 to June 5 of the same year by omitting the amount of income of the business year in 2002, and the director of the Incheon District Tax Office issued a notice to pay 510,589,360 won in total, including corporate tax and value-added tax, by setting each due date as stated in attached Table 2, as stated in attached Table 2. The ○ Tourism paid only part of it, and the total amount of the corporate tax and value-added tax in arrears has reached KRW 542,47,260.

B. Registration of transfer of title and establishment of mortgage of this case

On June 26, 2006, as indicated in the purport of the claim, the name of the vehicle registration on a total of five business bus (hereinafter referred to as the “each of the instant vehicles, and if it is necessary to specify it, it shall be indicated by each of the sequences) was transferred to the Defendant ○○ Tourism, as the name of the vehicle was transferred to the Defendant ○○○ Tourism, Co., Ltd. (hereinafter referred to as the “Defendant ○○○ Tourism”), which was the representative director of the Defendant ○○○○ Tourist on June 26, 2006 with respect to the business bus owned by the Defendant 70 Da1883, and on February 2, 2006, a mortgage was created in the future of Defendant ○○○ Tourism on the four vehicles on February 2, 2006.

[Ground of recognition] Gap evidence 1-1-4, Gap evidence 2-3, Gap evidence 4-1-5, Gap evidence 5, Gap evidence 6-1, 2, 4, 5, and 6-1, 6, the purport of the whole pleadings

2. Both claims and the decision of this court

A. Both claims

1) Plaintiff

○○ Tourism is highly likely to default national taxes of KRW 542,447,260 and corporate taxes of KRW 542,47,260 in total from January 2002 to January 2006 and to default in the near future. As to each of the instant vehicles owned by it, Defendant ○○ Tourism shall complete the registration of transfer of ownership in the future, and as to the 4 vehicles, Defendant ○○ Tourism shall complete the registration of creation of mortgage in the future. As to the 4 vehicles, the above ownership transfer and establishment of mortgage on Defendant ○○ Tourism should be revoked as a fraudulent act made with the intent to impair the Plaintiff, a creditor, and accordingly, the registration of transfer of ownership and establishment of mortgage should also be revoked.

2) The Defendants

Each of the instant vehicles is not the property owned by ○ Tourism, but merely the property registered as owned by ○ Tourism pursuant to the trust agreement with each of ○○ Tourisms. However, each of the instant vehicles thereafter does not constitute fraudulent act because it is merely a transfer of ownership title of each of the instant vehicles from ○○ Tourism to ○○ Tourism for convenience when concluding a mutual agreement with ○○ Tourism and a title trust agreement with ○○ Tourism, and concluding a new agreement with ○○ Tourism and a title trust agreement with ○○ Tourism.

B. Determination

Since a land owner is the possessor or the possessor of a branch-in company who can claim exclusive operation and management rights over the land-in vehicle against the land-in company, transferring the name of the land-in company to the land-in company or to a third party, it is difficult to view that the land-in company's transfer of the name of the land-in company to the land-in company to the land-in company is an act of reducing the liability of the land-in company, and also it is difficult to view that the land-in company's general creditor was an act of reducing the liability of the land-in company, and it is difficult to view that the land-in company had an intention of harming the general creditor. Thus, the transfer of the land-in company's registered name following the termination of the land-in contract is merely an act of performing the existing obligation whose ownership is returned to the land-in company, which is the trustee (see, e.g., Supreme Court Decision 2002Da71

In this case, comprehensively taking account of the overall purport of the arguments in Gap 6, Eul 2, and Eul 7 (including each number), and the testimony of Kim ○○ as witness of the first instance trial, vehicles 1 through 4 shall be operated as a branch entry system between each of their branch entry borrowers and Dong-dong Tourism. As ○○ Tourism becomes difficult to operate due to its financial standing, the above branch entry borrowers entered each of the instant vehicles into a sales contract with the defendants as to each of the instant vehicles at the request of ○○○○ Tourism upon the request of the aforementioned branch entry borrowers, and completed the registration of the transfer of ownership of each of the instant vehicles in the future. Meanwhile, the defendant Kim Jong-young entered into a branch entry contract with the defendants as to the four vehicles, and registered the name of the vehicle in the name of ○○○ Tourism as well as the right to the said vehicle, and thus, it cannot be said that ○○○○ Tourism was registered as a trustee for the purpose of securing the right to the said vehicle. Therefore, it cannot be said that the ownership of each of the above vehicles was registered as a trust agreement.

In addition, in full view of the purport of the argument in Eul evidence No. 1, five vehicles are vehicles originally acquired by ○○○ Capital Co., Ltd. by ○○○○○○○○, which are not owned by ○○ Tourism or are not considered as a responsible property. Thus, Defendant 4’s act of transferring the name of ○○ Tourism on five vehicles does not constitute a fraudulent act.

Therefore, the Plaintiff’s assertion on the premise that ○○ Tourism’s future act of transferring the name of a vehicle and establishing a right to collateral security is a fraudulent act is without merit without further review as to the remaining points (the Plaintiff’s assertion is limited to the freight trucking services, and the instant passenger transport business, such as the instant case, is null and void because it is not possible to allow an access contract. However, given its nature, the entry contract does not apply only to the trucking business, and even according to the Plaintiff’s assertion itself, if the entry contract of this case is null and void, the ownership of the instant vehicle is against the owner of each of the instant land, so the Plaintiff’s assertion on the premise that ○○ Tourism’s liability property for general creditors is without merit

Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed in its entirety as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed in its entirety as it is without merit. It is so decided as per Disposition.