Seoul Western District Court-2016-Gohap-35451 ( October 12, 2017)

The gift of this case was made at the time when the establishment of the tax claim is sufficiently expected, and constitutes a fraudulent act, depending on the realization of the same intention for the relief of taxation.

It is reasonable to view that the gift of this case exists as a series of acts in accordance with the same intent, and as a whole, it should be evaluated as a fraudulent act when considering the intent of the gift of this case as a whole.

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

Seoul High Court 2017Na2066986 Revocation of Fraudulent Act

Korea

AA and 3

October 18, 2018

December 6, 2018

1.The judgment of the first instance shall be modified as follows:

(a) (1) The agreement between the network BB and the Defendant AA on the x members concluded on August 18, 2011 shall be revoked.

2) Defendant AA pays to the Plaintiff x members with 5% interest per annum from the day following the day when the judgment of this case became final and conclusive to the day of full payment.

B.1) The agreement between the network BB and Defendant CCC on the x members concluded on August 18, 201 shall be revoked.

2) Defendant CCC shall pay to the Plaintiff x members with 5% interest per annum from the day following the day when the judgment of this case became final and conclusive to the day of full payment.

C. 1) The agreement between the network BB and Defendant DD on the x members concluded on August 18, 201 shall be revoked.

1.2) Defendant DDR pays to the Plaintiff x members and 5% interest per annum from the day following the day when the judgment of this case became final to the day of complete payment.

(d) (1) The gift agreement between the network BB and the network EE, concluded on August 18, 201, shall be revoked within the limit of thex members.

1. 2) The Plaintiff

A) FF, GG, AAA, and H H, the litigant’s litigant’s litigant’s litigants, each of whom is the x members;

B) CCC, the lawsuit of Defendant Sea EE, is a x won within the limit of the property inherited from the network EE;

C) The JJ, which is the taking-off of the case of Defendant RE III, shall pay x won, KSK, and LLL to each of the above x members, 5% interest per annum from the day following the day when the instant judgment became final and conclusive to the day of complete payment.

E. The remainder of the claim against the CCC, which is the taking-off of the defendant net EE, is dismissed.

2. All costs of the lawsuit are borne by the Defendants.

The judgment of the court of first instance and the claim against CCC, which is the taking-off of the lawsuit of the defendant deceased EE, are the same as the order except for the claim for the payment of x won, without limitation of the limit of the property inherited from the deceased EE. The plaintiff has maintained the purport of the claim that "the gift contract between the deceased BB and the deceased EE entered into on August 6, 201, is revoked within the limit of x won", which was concluded on August 18, 2011 between the deceased BB and the EE, but the sum of the amount claimed in the above application is not only the x members such as d. 1 of the Disposition 1., but also the sum of the amount claimed in the above application is not only the x members such as the case No. 1. d. 1, and it is clear that the part of the claim against the ME, which has no address in the Republic of Korea, is reduced by stating that the lawsuit is withdrawn from the lawsuit at the third day of the court.

1. Basic facts

(a) Disposition of real estate transactions and capital gains tax by the network BB;

1) On June 3, 2011, the network BB (hereinafter referred to as “the network”) sold to NN the purchase price of 00 Dong 00-Gu, Seoul, 00 x-xx size (hereinafter referred to as “0-dong land”) to xx members, and completed the registration of ownership transfer to NN on August 18, 201.

2) NN deposited x members on June 3, 201, 201, x members on June 7, 2011, x members on June 20, 201, and x members on June 20, 2011 into the account of 00 bank accounts in the name of the deceased. On August 18, 2011, N directly paid x members to the deceased.

3) On July 10, 2014, the director of the tax office under the Plaintiff-affiliated tax office imposed the xx members of the capital gains tax belonging to the year 201 (hereinafter “instant capital gains tax”) with respect to the transfer of 00 land to the deceased, and on July 25, 2016, the total delinquent tax including the additional tax amount reaches x members.

B. The deceased’s donation of this case

1) The network EE is the deceased’s spouse, and Defendant AA and CCC are the deceased’s children, and Defendant DD is the deceased’s spouse as the deceased’s spouse.

2) On August 18, 2011, the Deceased donated xx members from the balance of the above purchase price NN to the account in the name of the network EE and Defendant AA, CCC, and DD (hereinafter referred to as “beneficiarys”) as listed below.

3) On August 19, 201, Defendant AA delivered to the OO a check (the check number of 000, hereinafter referred to as “the check of this case”) in the face value Xx won (the check of this case) issued by an enterprise bank that received a donation from the deceased on August 19, 201, and paid the balance of the purchase price of X-x Nox Nox Nox Nox No.x No.x No.x No. x (hereinafter referred to as “00 title No. x”) in Seoul (hereinafter referred to as “the donation of this case”) (the sum of each gift indicated in the above table and the donation of the check of this case to Defendant AA by the deceased).

(c) Death and inheritance of the network EE;

1) On November 29, 2017, when the instant lawsuit was pending in this Court, the deceased on November 29, 2017, and the FF, GGG, network III (at that time, KK and LL, her wife, her children, her children, her children, her children, her children, her children), MM, AA, CCC, and HH jointly inherited the instant lawsuit, and the remainder of the heirs except MM, who had no address in the Republic of Korea upon the Plaintiff’s request to resume the Plaintiff’s legal proceedings, took over the instant lawsuit.

2) Meanwhile, with respect to the CCC, which is the litigation of the network EE, a qualified acceptance report on the inheritance of the network EE was accepted by the Seoul 00 Court Decision 2018Ra422 dated May 12, 2018.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 11, 14, 16, 17 (including each number; hereinafter the same shall apply), Eul evidence Nos. 1 and 5, and the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiff

As a result of the deceased’s donation of this case, the deceased was in excess of his obligation. Since the donation of this case constitutes a fraudulent act detrimental to the plaintiff’s creditor, it constitutes a fraudulent act, the part written in the purport of the claim out of the donation of this case within the scope of xx won of the plaintiff’s preserved claim amount at the time of filing the lawsuit of this case shall be revoked, and as a result, the plaintiff (beneficiary and his heir) shall be entitled to the restoration of the original state, to pay x

B. The Defendants

1) The instant donation was made around August 18, 201, and the instant transfer income tax claim was made around August 18, 2011.

8. Since the transfer income tax claim was established on 31.3, the transfer income tax claim of this case cannot be the preserved claim under the revocation of fraudulent act.

2) In a case where a debtor engages in multiple series of property activities, it shall be determined based on whether the debtor's insolvency has been caused by each act. On August 18, 201, the deceased received the balance of the purchase price of the land with xx members and donated them to the beneficiary, whichever is later, the deceased possessed the remainder of xx members exceeding the amount of the instant transfer income tax claim. The time when the deceased donated the instant check to Defendant AA with the said money on August 19, 201, is the time when the deceased donated the said money, and thus, it is not necessary to consider in determining whether the deceased was in excess of the obligation at the time of donation of x members to the beneficiary. Accordingly, the instant donation does not constitute a fraudulent act.

3) Defendant CCC and DD are bona fide beneficiaries who did not know that the Deceased donated the instant watermark to Defendant AA.

4) Even if the instant donation constitutes a fraudulent act, the scope within which the Plaintiff may exercise the obligee’s right of revocation against the Defendants is limited to the Plaintiff’s active property at the time of August 18, 201, xx1), which is the difference between the Plaintiff’s active property as of August 18, 201 and the Plaintiff’s obligation amount of the instant transfer income tax that is a small

3. Determination

(a)the existence of preserved claims;

1) Relevant legal principles

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 could be viewed as a fraudulent act in principle, there is a high probability that at the time of the fraudulent act, there has already been legal relations that would be the basis of the establishment of the claim in the near future, and that the claim would be established in the near future, and where a claim has been created as a result of its realization in the near future, the claim may also become a preserved claim in the obligee’s right of revocation. Such legal principles apply to a claim in the near future. As such, even if a claim is not yet established at the time of a fraudulent act, if a legal relationship that serves as the basis of the establishment of the claim was created, and a claim was established specifically through the procedure of taxation such as a high probability of establishing the claim in the near

In addition, when the creditor exercises the creditor's right of revocation, in principle, he/she cannot exercise the right of revocation in excess of his/her claim amount, and at this time, the creditor'

1) The balance of the land of 00 NN = (the balance of the land of 00 xx won xx won of the gift amount of this case x won); and

+ 00 x won of the deposit amount of 00 ＋ x won of the deposit amount of 00 bank

The interest or delay damages incurred until the closing of argument is included. Meanwhile, the additional dues under Article 21(1) and (2) of the National Tax Collection Act are the kind of incidental dues imposed in the meaning of interest on the unpaid portion if national taxes are not paid by the due date, and if national taxes are not paid by the due date without the due date of payment by the due date of payment by the due date, the amount naturally accrued and the amount thereof is determined by the relevant provisions. Therefore, as long as the transfer income tax claim is recognized as preserved claim by the due date of the obligee’s right of revocation, the amount of the transfer income tax shall also include the additional dues incurred after the fraudulent act and until the closing of argument by the court of fact-finding (see

2) Determination

By transferring the land on August 18, 201, the deceased around the donation date of this case, the liability to pay the transfer income tax of this case was established abstractly, and thus the legal relationship that forms the basis of the creation of the transfer income tax of this case has already occurred. Accordingly, it may be highly probable that the transfer income tax of this case would be established. In fact, the head of the tax office levied the transfer income tax of this case on the deceased on July 10, 2014 on the transfer of 00 land, and the fact that the total delinquent tax amount, including the additional charge incurred from July 25, 2016 after the fraudulent act, reaches xx won, the transfer income tax of this case, including the additional charge, becomes the preserved claim of the obligee’s right to revoke the transfer income tax of this case.

B. Whether the instant donation constitutes a fraudulent act

1) Relevant legal principles

In order to become a fraudulent act, the debtor's act of disposing of his/her assets may cause a decrease in the debtor's whole property and thus, the joint security of claims may not be sufficient, i.e., the debtor's passive property should be more than the active property (see, e.g., Supreme Court Decision 2004Da58963, Jan. 28, 2005).

In addition, in a case where a debtor has engaged in a series of property acts in succession, it is in principle to determine whether the debtor has caused insolvency by each act with respect to the obligee’s right of revocation. However, when there are special circumstances in which the series of such acts are deemed a single act, it should be determined whether such act is recognizable as a whole as a single act. In such a case, whether there exists any special circumstance ought to be determined based on the identity of the other party to the act, the temporal relationship between the debtor and the other party, the other party’s relationship, the motive or opportunity of the act, etc. (see, e.g., Supreme Court Decision 2010Da15387, May

(ii) the facts of recognition

In addition to the aforementioned evidence, Gap evidence Nos. 13, 16, and 20, and the whole purport of the pleadings as to the order to submit financial transaction information to 00 Nonghyup on November 24, 2016, the following facts may be acknowledged.

① On August 18, 2011, the Deceased received xxxx numbers from NN on a check with a face value of 00 xx numbers issued by the Bank of 00, and deposited the balance of the check xx numbers with the National Agricultural Cooperatives, excluding 1 copy of the check number xx, and as seen earlier, transferred xx numbers to each account in the name of the beneficiaries.

② On July 4, 2011, Defendant AA agreed to pay the remainder of 00 xx numbers from OO to xx members on the date of the contract, including the contract deposit x members, the intermediate payment x members on July 28, 201, and the intermediate payment x members on August 19, 201.

③ Accordingly, from 00 bank accounts (Account Numberx) in the deceased’s name on July 4, 201,x members were transferred from 00 bank accounts (Account Numberx) in the deceased’s name on July 29, 201 to Ox, respectively.

④ Defendant AA delivered the instant check to OO on August 19, 201 and paid the balance therefrom, thereby in full paying the purchase price, and completed the registration of ownership transfer as to subparagraph xx.

⑤ On the same day, OO presented the check of this case at 00 points in 00 bank, and repaid 00 bank general credit principal to x members, and the remaining x members deposited in 00 bank passbook (Account Numberxx) in 00 bank name.

6. The Deceased, Defendant AA, and the Network EE shall complete a move-in report on August 22, 201.

3) Determination

A) In light of the following circumstances, it is reasonable to view that there is a special circumstance to deem that the deceased’s gift of this case was a series of acts according to the same deceased’s will and as a single act. Accordingly, it is to determine the existence of the intent of the gift of this case as a whole as a whole.

① On July 4, 2011, after selling 00 land owned by the deceased on June 3, 201, the deceased purchased 00 xxx, a new dwelling place under Defendant AAA’s name, and transferred on August 22, 201, the deceased appears to have paid the instant check to OO, a seller, for the remainder of the purchase price through Defendant AAA, as the buyer’s name (the down payment and intermediate payment as referred to in x are also borne by the deceased).

② As such, the payment of the purchase price for the property acquired in the name of Defendant AA is a donation to Defendant AA by the deceased. If Defendant AA did not receive the instant checks from the deceased, there is no assertion or proof by the Defendants as to how Defendant AA had otherwise obtained the said checks, or how Defendant AAA had no special occupation or source of income to procure or procure the balance of the purchase price for 00 Dongxxxxxxxxxx.

③ The gift of xx members from August 18, 201 to the beneficiary of the deceased and the gift of the check of this case to Defendant AA from August 18, 201 are both identical to the beneficiary. The beneficiary has a special relationship with the deceased by law, children, and fraud.

④ Even based on the Defendants’ assertion on August 18, 201 or August 19, 2011, the date of donation of the check in this case is only the xx won donation day for the deceased’s beneficiaries, or only the difference per day.

⑤ Ultimately, at the time when the establishment of the instant taxation claim is sufficiently anticipated, the gift of this case does not appear to be evaluated as being made according to the realization of the deceased’s intent for the same death.

[Plaintiff asserts that the x won deposited in the net EE account (Account Numberx) should be reflected in the judgment of fraudulent act by including it in the gift of this case. However, the entries in the evidence Nos. 14-2 and 15 in the evidence No. 14-2 and 15 alone are insufficient to recognize the said money as the money donated from the deceased, and there is no other evidence to acknowledge it. Thus, the above assertion by the Plaintiff is without merit (it does not interfere with recognizing the gift of this case even if it does not include the above xxxx, as seen in the front and rear).

B) According to the aforementioned evidence and the purport of the entire pleadings, at the time of the instant donation, from the xx members received from NN on August 18, 201 under the pretext of the balance of the purchase price of the land at NN on August 18, 201, there were the sum of xx members except xx members, 00 bank accounts (Account Numberxxxx), 00 bank accounts in the deceased’s name (Account Numberxxxx), and 00 Agricultural Cooperative Accounts in the deceased’s name (Account Numberxxxxxxxxx), including the balance of xxxx in the deceased’s name, and as such, the instant donation contract against the deceased’s beneficiaries constitutes a fraudulent act detrimental to his general creditors.

C. Whether a beneficiary has acted in bad faith

1) Relevant legal principles

Since the beneficiary's bad faith is presumed in a lawsuit seeking revocation of fraudulent act, the beneficiary is responsible for proving his/her good faith in order to be exempted from his/her responsibility. In such cases, whether the beneficiary is bona fide or not shall be determined reasonably in light of logical and empirical rules, comprehensively taking into account the relationship between the debtor and the beneficiary, the details and the background or motive leading up to the act of disposal between the debtor and the beneficiary, the circumstances leading up to the act of disposal, whether there are no special circumstances to suspect that the terms and conditions of the act of disposal are normal and reasonable, and circumstances after the act of disposal, etc. (see, e.g., Supreme Court Decision 2011Da37001, Apr

2) Determination

According to the above legal principles, as long as the gift of this case constitutes a fraudulent act, it is presumed that the beneficiary's bad faith is presumed.

The Defendants set up at least as Defendant CCC and DD as a bona fide beneficiary. However, as seen earlier, Defendant CCC and DD were closely related to the deceased’s husband’s wife by fraud. Of the purchase price that the deceased sold 00 land and received, the deceased was already aware of the fact that the deceased donated xx and xx won, and sold the deceased’s 00 land. However, around that time, the Defendants purchased 00 xxxx through Defendant AA, which was the mother of Defendant CCC, in order to have the deceased live in 00 xxxxx, and purchased 00 xxxxx, which was the mother of Defendant CCC, to have the deceased live in 00 xxxxxx, and there is no other evidence to reverse the above presumption. Therefore, there is no reason to reverse the Defendants’ defense.

(d) Revocation of fraudulent act and reinstatement;

The Defendants asserted that even if the requirements for revocation of a fraudulent act are recognized, the Plaintiff may exercise the obligee’s right of revocation only within the scope of the difference between the deceased’s active property and the passive property at the time of donation in this case. However, when the obligee exercises the obligee’s right of revocation, it cannot be said that there is any limitation as argued by the Defendants, in addition to the amount of the obligee’s right of revocation limited (see, e.g., Supreme Court Decisions 2000Da66416, Sept. 4, 2001; 2003Da19572, Jul. 11, 2003

The above assertion by the defendants is merely an independent opinion and cannot be accepted.

Thus, as the plaintiff seeks within the scope of his preserved claim amount, ① the contract between the deceased and the defendant AA on August 18, 201, ② the contract between the deceased and the defendant CCC on the donation of x members on August 18, 201, ③ the contract between the deceased and the defendant DDD on the donation of x members on August 18, 201, ④ the contract between the deceased and the deceased on the donation of x members on August 18, 201, ④ the obligations of the plaintiff on the donation of x members on August 18, 2011 between the deceased and the deceased, ④ the obligations of the above x members on the return of x members, ② the defendant CCC, ③ the defendant DD, within the scope of the above x members, ④ the x members of the EEF lawsuit, GGG, EHJ of each EHJ of the lawsuit, and each of the above EHJJ of the above C2).

4. Conclusion

Therefore, since the gift of this case is a fraudulent act against the plaintiff, the plaintiff's claim against the defendants who seek partial revocation of the gift of this case and restitution within the scope of the amount of the plaintiff's secured claim should be accepted for all reasons other than ordering payment within the limit of the inherited property to the defendant's EE EE lawsuit. Since the judgment of the court of first instance is unfair in conclusion, the plaintiff's appeal shall be accepted, and the court of first instance shall decide to dismiss each part of the order of this case's gift of this case, which constitutes a fraudulent act, and to order restoration from its original status, and to revise the judgment of the court of first instance.

2) 1/7 each of the inheritance shares of the above five persons who are lineal descendants (hereinafter the same shall apply) before reducing the claim for the portion of the portion of the portion of the inheritance to be inherited for MM x members who have sought revocation and restitution at the first complaint x their lineal descendants x the inheritance shares of the above five persons who are lineal descendants .

3) The spouse's share in the net EE's property = x won in the net III x the spouse's share in the property in the network III 3/7.

4) The above = the above x members ¡¿ the shares in the inheritance of lineal descendants in the property of the network III, respectively. 2/7