Revocation of Fraudulent Act

The Defendant’s assertion that the instant remittance (cash donation) is merely a repayment of the delinquent’s obligation solely on the ground that it is clear that the debtor is the Defendant, and that the debtor was the delinquent before acquiring the obligation, and that the debtor actually used the loan.

The contents of the judgment are the same as attachment.

Article 30 of the National Tax Collection Act

2018 Doz. 407186 Revocation of Fraudulent Act

Korea

AA

on October 26, 2019

on October 24, 2019

1. The contract of donation of KRW 502,653,150 entered into on December 11, 2015 between the Defendant and BB shall be revoked.

2. The defendant shall complete payment to the plaintiff 502,653,150 won and the day after the day when this judgment became final and conclusive.

By the day, 5% interest per annum shall be paid.

3. The costs of lawsuit shall be borne by the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

(a) sale of the BB’s real estate;

BB entered into a sales contract with the 710-1 m2, 6, 162 m2, 710-3 m2, 710-3 m2, 710-4, 5,014 m2, 710-5, 710-5, 531 m2, and 710-5, 710-5, 531 m2 (hereinafter referred to as "the instant real estate") total of the ownership shares of BB (hereinafter referred to as "the instant real estate") in the aggregate of 1,597, 350, 00 m25, 200 m2, 2015 m26, 206, 208.5 m2, 2016, 2015.

(b)transfer to the defendant by BB;

1) On December 11, 2015, BB deposited KRW 502,653,150 out of the intermediate payment of KRW 1,136,203,840 pursuant to the instant sales contract from Red*, etc.* on December 11, 2015 (hereinafter “the instant remittance”) to the OOOO association account (156-73-001*) in the name of his spouse.

2) After the instant transfer, the Defendant’s loans owed to the OOO Association KRW 502,653,150 (the sum of KRW 500,00,000 in the loan principal and interest KRW 2,653,150 in the loan principal until December 11, 2015) was repaid on December 11, 2015.

C. Plaintiff’s transfer income tax claim

1) BB did not pay the transfer income tax after the transfer of the instant real estate.

2) On April 12, 2017, the head of the OOO head notified that capital gains tax of KRW 752,981,700 shall be paid by July 8, 2017 to BB.

3) The delinquent amount of capital gains tax on the Plaintiff of BB is KRW 874,964,730, including the additional charges resulting from delinquency as of August 29, 2018, which was the date of filing the instant lawsuit.

[Reasons for Recognition] Facts without dispute, Gap 1-3 evidence, 4-8 evidence, 10-1-7, 11-4 evidence, 1-5 evidence Nos. 4-5, and the purport of the whole pleadings

2. Whether the creditor's right of revocation is recognized;

A. Whether the preserved claim is established

Even if the preserved claim for exercising the right of revocation did not have yet occurred at the time of the fraudulent act, the legal relationship was already established, and if there was a high probability that the preserved claim will be realized in the near future, in view of the situation at the time of the fraudulent act, it may be deemed as the preserved claim even if the claim was finally embodied and established (see Supreme Court Decision 2013Da213861, Jan. 29, 2014).

The instant transfer was executed on December 11, 2015, and the instant sales contract, which forms the basis for establishing a tax claim against BB, was concluded on May 26, 2015, which was prior to the instant transfer, and BB received KRW 1,336,203,840 (i.e., the amount paid on May 26, 2015 + KRW 70,000,000 + KRW 10,000,000 paid on December 9, 2015 + KRW 100,000,000 paid on December 131, 2015 + KRW 30,000,000,000 paid on December 13, 2015; and KRW 138,316,200,000,000 on December 13, 2015).

In light of these circumstances, it is reasonable to view that there was a high probability that at the time of transfer of this case the legal relationship, which serves as the basis of the Plaintiff’s establishment of capital gains tax, had already been established, and that there was a high probability

In addition, since the director of the OOO office determines the transfer income tax amount under the sales contract of this case as KRW 752,981,700 and notifies BB, it was actually feasible and the tax claim has occurred.

Therefore, the Plaintiff’s transfer income tax claim can be a preserved claim in order to cancel the gift contract on the instant remittance.

(b)BB’s fraudulent act;

1) Whether the debt exceeds the debt

In determining whether a debtor's insolvency, which is the requirement for the exercise of the right of revocation, requires that in principle, the small property subject to it was generated prior to the occurrence of an act that can be deemed a fraudulent act. However, there is a high probability that the legal relationship has already been established at the time of such fraudulent act, and that the obligation is established in the near future because of its legal relationship in the near future, and where the probability is realized in the near future, the obligation shall also be included in the debtor's small property. Such legal principle also applies to the additional tax imposed as prescribed by individual tax law in cases where a taxpayer violates various obligations, such as declaration, tax payment, etc. as prescribed by the law without justifiable grounds (see Supreme Court Decision 201Da82360, Feb. 23, 2012).

Comprehensively taking account of the respective descriptions of evidence Nos. 5-7 and the purport of the entire pleadings, the details of active and passive property of BB as of December 11, 2015, which is the time of the transfer of the instant case, are as listed below.

According to the above facts, BB appears to have been in excess of its obligation only due to the transfer of this case, and the remittance of this case constitutes a gift contract concluded between BB and the defendant, and it constitutes a juristic act detrimental to the creditor, as it has resulted in the reduction or damage of the common creditors' joint security against BB.

(ii) the intention of the BB to understand;

According to the above facts, BB appears to have been aware that the transfer income tax against the Plaintiff would not be paid due to the transfer of this case. Accordingly, BB’s intent to commit suicide is recognized.

3) Judgment on the defendant's assertion

A) Summary of the assertion

The Defendant’s obligation of loans to the OOOO association is a debt of a loan that was originally received by BBB, the husband, and the Defendant registered as a rental business operator at the time to extend the due date for the closure of the business by BB to make it impossible for BBB to extend the due date. Therefore, the instant remittance is not a donation equivalent to the amount of remittance to the Defendant, but is merely a repayment of the Defendant’s loan to the financial institution by BB. Accordingly, the donation contract for the instant remittance does not constitute a juristic act detrimental to the obligee.

B) Determination

The Defendant’s assertion makes it impossible to extend the due date of the BB’s previous loan obligation, and the Defendant received an extension of the due date after the Defendant assumed the obligation of the BB’s loan, so it is clear that the obligor of the above loan obligation is the Defendant, and it is difficult to view it differently solely on the fact that the obligor prior to the assumption of the obligation was the BB and the BB actually used the loan.

Therefore, the defendant's assertion that the remittance of this case is merely a repayment of BB's loan obligations is without merit on different premises.

C. Sub-committee

Therefore, the remittance of this case is a gift contract, which is a juristic act detrimental to the plaintiff, who is the creditor against BB, and must be revoked.

3. Methods and scope of reinstatement;

As seen earlier, the remittance amount of this case is KRW 502,653,150, and the delinquent tax amount of the Plaintiff of BB exceeds the above amount, which is subject to cancellation and restitution.

Therefore, the contract of donation of KRW 502,653,150, which was concluded on December 11, 2015 between BB and the Defendant shall be revoked as a juristic act detrimental to the obligee. The Defendant shall pay to the Plaintiff damages for delay calculated by the rate of 5% per annum under the Civil Act, which is the entire remittance amount of the instant transfer amount, as restitution upon the revocation of the fraudulent act, to the Plaintiff, from the day following the day when the judgment became final to the day when the payment is made.

have obligations.

4. Conclusion

Therefore, each claim of the plaintiff shall be accepted in its entirety on the grounds of its reasoning, and it is so decided as per Disposition.

section 3.

1) In light of the fact that the date of conclusion of a sales contract stated in the sales contract (A No. 10 No. 10) is the date of December 15, 2016, or that the payment of the sale price was completed before the date of sale stated in the contract, it is difficult to regard the date of sale stated in the contract as the date of true sale. Since it is reasonable to view that the sales contract was concluded before May 26, 2015, the date of each payment of the purchase price, is the date earlier, it is reasonable to regard the date of each payment of the purchase price as the date of contract.