Seoul Western District Court-2013-Gohap-33256 ( October 16, 2014)

The subject of creditor's right of revocation shall be preserved

There is already established a legal relationship which is the basis of the establishment of claim at the time of the legal act, and the close president.

In the future, there is a high probability of the occurrence of claims based on their legal relations;

In the event that a claim has occurred due to the realization of the probability in the near future, the claim may also become a preserved claim of the obligee's right of revocation.

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

A. On October 0, 2010, concluded between Lee 00 and the Defendant with respect to the real estate listed in the separate sheet No. 1

A contract of gift shall be revoked within the scope of KRW 000,000.

B. The Defendant’s KRW 000,000,000 for the Plaintiff and the following day from the day following the day this judgment became final and conclusive.

The amount shall be paid at the rate of 5% per annum from the date of full payment.

C. The plaintiff's remaining claims are dismissed.

2. 5% of the total litigation costs is assessed against the Plaintiff, and the remainder 95% is assessed against the Defendant, respectively.

1. Purport of claim

A donation concluded on October 0, 2010 with respect to the real estate listed in the separate sheet No. 1 list between 00 and the defendant

The contract shall be revoked within the scope of KRW 000,000. The defendant shall pay to the plaintiff the amount of KRW 000,000,000 and 5% interest per annum from the day following the day this judgment is finalized to the day of full payment.

under payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

(a) The relationship between the parties;

The defendant is this 00 wife, and this 00 is the representative director of the 00 pre-permanent corporation located in Seoul 00-Gu 00-dong 42-12. The 00 pre-permanent theory was started on October 0, 2002 and closed on October 0, 2010.

B. The plaintiff's taxation on 00

1) The director of the Seoul 00 Tax Office finds out the fact that the total of 00 pre-sales omitted sales in the year 2008 (from January 1, 2008 to December 31, 2008) and the year 2009 (from January 1, 2009 to December 31, 2009) and the total of 0000 won and value-added taxes for the above two business years to the pre-sales on October 0, 2010.

00000 won was imposed.

2) At the same time, the director of the Seoul 00 Tax Office is the representative director of the tax office.

the bonus of 00 was disposed of under the Corporate Tax Act, and on October 0, 2012, 2008

The deadline for payment shall be set on September 30, 2012, on the ground that the personal credit has occurred in 2009, and shall be 2008

The global income tax of 00000 won was notified in the year and 2009.

3) No. 00 had not been paid until now, and additional charges, including October 0, 2013

amount of global income tax for the year 2008, calculated on the basis of section 2008, shall be 00000,000

Global income tax is 00000 won.

(c) Donations to the defendant of 00

1) On October 0, 2010, 000, the real estate listed in the Schedule I (hereinafter referred to as “real estate”) to the Defendant, whose wife is the Defendant.

On November 25, 2010, the next day after the donation (hereinafter referred to as "the donation of this case") of the building of this case (hereinafter referred to as "the building of this case") was completed the registration of ownership transfer in the future of the defendant.

2) At the time of donation of this case, the building of this case and the market price of 100 million won is active property at the time of donation of this case

Golf membership (members' membership number: E00000) equivalent to Won, and it was small property.

10 million won (per section of exclusive ownership) is the obligation to return the lease deposit with respect to the building of this case.

The amount of the deposit was KRW 00 million, global income tax, KRW 000,000,00, which was borrowed from us bank (hereinafter “Korea bank”), us (hereinafter “Korea bank”), as stated in the [Attachment 2’s [Attachment 2’s] lease deposit, and KRW 00,000,00. The donation of this case led to the status that the small property exceeds the positive property.

(d) Establishment and cancellation of the right to collateral security;

1) With respect to Nos. 101 and 501 of the instant building at the time of the instant donation, with respect to October 0, 2003

the registration of establishment of a mortgage, which is a maximum amount of the right, KRW 0 million; KRW 00,000; KRW 00,000;

On October 0, 2009, the maximum debt amount of KRW 00,000, the debtor00, the mortgagee of the right to collateral security, and the mortgagee of the right to collateral security.

The registration was completed separately.

2) After the donation of this case on October 0, 201, the registration of creation of a neighboring mortgage, which is a maximum debt amount of the instant building, was completed as to the instant building on October 0, 201, respectively. On the same day, the registration of creation of a neighboring mortgage, which is a debtor, the defendant, the mortgagee, and the mortgagee, was revoked.

3) Meanwhile, among the instant buildings offered as joint security to 00 credit cooperatives, such as the above 2.

The registration of creation of a neighboring mortgage on 301 shall be effected on November 1, 201, and the registration of establishment of a neighboring mortgage on 201

On February 13, 2012, each cancellation was made.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 4, 6, 8, 9, 10, 11

each entry of the number, including number, hereinafter the same shall apply) and the purport of the whole pleading

2. Determination

(a) Occurrence of preserved claims;

1) In principle, the obligor is entitled to a claim protected by the obligee’s right of revocation.

Although a juristic act for the purpose of property right should have arisen before the juristic act was conducted with knowledge of the fact that there has already been a legal relationship which serves as the basis for the establishment of a claim at the time of the act, there is high probability that a claim would have been created in the near future based on such legal relationship, and where a claim has been created as a result of realizing the probability in the near future, the claim may also be the preserved claim for the obligee’s right of revocation (referring to the Supreme Court Decision 2006Da000, Oct. 0, 2007). Meanwhile, in cases where the tax authority deemed the amount included in the gross income released from the company as belonging to the representative and disposes of it as a bonus, if the representative disposes of it as a bonus, it shall be subject to tax on earned income, and the amount of income shall be

the date of the provision of such income, and thus, a claim is filed upon the recognition of the person to whom the income belongs by such disposition.

The tax liability for acquisition tax shall return to the income under the conditions as prescribed by Article 21 (1) 1 of the Framework Act on National Taxes.

Any existing taxable period may be established at the end of the existing taxable period (Supreme Court Decision 2006Du000 Decided October 0, 2008);

Supreme Court Decision 2004Du000 Decided October 0, 2006, etc.

2) Seoul 00 Head of the tax office's recognition on October 0, 201 to 00 on 2008 and 2009

Due to the occurrence of leisure time, the payment deadline was set on October 0, 2012 and reverted to the year 2008 and 2009.

SectorThe fact that notice of global income tax amounting to KRW 00000 is recognized as above, and Gap's 2, 6, 8

In addition to the whole purport of the pleading in the statement 9 evidence, the director of Seoul 000 Tax Office on June 6, 2010

21. Taxation due to the omission of sales in 2008 and 2009 on 00, a representative director of the full-time relocation.

Standard modified determination is to impose corporate tax and value added tax of 00000 won in total.

Amount of income 00 that takes place by the disposal of income pursuant to the Corporate Tax Act that the person to whom the income belongs;

The fact that the notice of taxation was changed and the revenue attached to the notice of taxation was changed.

"2. Details of the calculation of the amount, tax base and tax amount". 2. The statement of the income amount and the estimated tax amount for withholding are as follows: (a) the bonus income amount belonging to the year 2008 as to the amount of 2008; (b) the amount of income belonging to the year 2009 as the amount of income; (c) the notice of taxation was served on 00 pre-sale and 00; (d) around that time, the place of 00 pre-sale and the domicile of 00 pre-sales can be recognized that all were the location of the building; and (e) the testimony of the witness of the first instance trial did not interfere with the above recognition, and there is no counter-proof otherwise.

Examining the aforementioned facts in light of the aforementioned legal principles, 00 already existed at the time of the donation of this case

There was an omission in the output tax amount of the previous theory, and there was a situation in which the output amount was recognized as a bonus against 00, which was the representative director of the previous theory, as well as the liability to pay global income tax on the income recognized as a bonus, when the relevant taxable period expires.

Since it is established, the legal relationship that is the basis for establishing a tax claim against the plaintiff's 00

A. There was a high probability that a taxation claim becomes final and conclusive in the near future based on its legal relations, and that the tax claim against the Plaintiff 00 can be the preserved claim in a fraudulent act revocation lawsuit, as it became final and conclusive by notifying the head of Seoul 00 Tax Office to pay KRW 000,000 of the global income tax for 2008 and 2009 to 00 October 0, 2012.

(b) The intent to commit fraudulent acts and to injure debtors;

This part of the reasoning is as stated in Section 2.b. of the reasoning of the judgment of the first instance except that the '00 million won' of the 6th 8 and 9th 9th son of the judgment of the first instance is about KRW 0 million, and therefore, this part of the reasoning is citing it as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

(c) Methods of reinstatement and scope of revocation of fraudulent act;

1) In principle, in a case where a legal act on a certain real estate constitutes a fraudulent act, that act

In principle, an order to recover real estate itself, such as cancellation of a fraudulent act and cancellation of a ownership transfer registration, is established only within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate where a fraudulent act was conducted with respect to real estate on which a mortgage is established. Therefore, in cases where a registration of creation of a mortgage was cancelled due to repayment, etc. after a fraudulent act, order the cancellation of a fraudulent act to recover the real estate itself is an order to restore the portion which was not originally secured by the general creditors’ joint collateral, thereby going against the fairness and fairness. Thus, it is only possible to seek damages after cancelling a fraudulent act within the extent of the balance obtained by deducting the secured debt amount of the mortgage from the value of the real estate at which the secured debt is deducted from the value of the real estate, and such value shall be calculated at the time of the conclusion of the fact-finding trial proceedings (see, e.g., Supreme Court Decision 2001Da000, Oct. 0, 200).

On the other hand, a third party's right to mortgage, superficies, etc. over the object after a fraudulent act.

In the event of acquisition, barring special circumstances, such as the fact that a beneficiary may transfer the subject matter to a state without any restriction on mortgage, etc., a creditor may seek compensation against the beneficiary in lieu of return of the subject matter (see, e.g., Supreme Court Decision 2000Da000, Oct. 0, 2001).

2) In the instant case, in respect of No. 101 and No. 501 of the instant building, the Bank No. 501

On September 27, 2011, which was after the donation of this case by the mortgagee, the registration of creation of a mortgage was completed on September 27, 201, and on October 0, 201, which was after the donation of this case.

As to the whole building, the right to collateral security was established with 00 credit cooperatives as the right to collateral security.

A. The facts that the registration of creation of a neighboring mortgage of 201 and 301 was cancelled are as seen earlier. In addition, in addition to the overall purport of the arguments as indicated in the evidence Nos. 6-2, 4, 8-1, 3, 1, 15-1 and 2 of the evidence No. 15-2, 201 of the instant building at the time of the instant donation was transferred to the lessee, and the moving-in report was completed from November 4, 2009 to the lease deposit amount of KRW 0 million.

The lending contract was resided with the fixed date with the fixed date, but the Maximum 00 which is the new lessee was 2011.

0.0.Lease of lease deposit amounting to KRW 90 million from the Defendant and completion of the moving-in report;

The fact that he/she is residing with the fixed date in the summary form, 301 of the instant building was leased from January 31, 2007 to the lessee KRW 00 million, and the lessee completed the move-in report with the fixed date and resided with the lease contract. The new lessee, Kim 00, a lessee, was 2011.

0.0. Lease by the Defendant after completing a moving-in report by leasing KRW 0 million from the Defendant;

A summary may be recognized as having resided with a fixed date.

According to the above facts, ① the building of this case was established in 101 and 501

(2) No. 201, No. 301 of the instant building was revoked after the instant donation.

A new collateral security is established after the donation of this case with respect to the remaining section of exclusive ownership.

In addition, the obligation to return the deposit with preferential right to payment at the time of the donation of this case is extinguished, and the obligation to return the deposit has arisen, as the existing lease contract was terminated after the donation of this case, and the defendant received the increased deposit from the new lessee and returned the deposit to the existing lessee. As such, the plaintiff may seek restitution against the defendant by the method of compensation for the value of the whole building of this case.

3) Furthermore, we examine the value that the Defendant is liable to compensate for. The evidence No. 11-1 to No. 8

In addition to the purport of the entire pleading, the appraisal report on the object of the building of this case prepared as of September 21, 201 may recognize the fact that the sum of market prices of each section of exclusive ownership of the building of this case is assessed as KRW 000,000,00, added all the money indicated in the corresponding column No. 2, and the value of the building of this case shall be the same at the time of the date of the closing of argument of this case.

Next, the value of the instant building must be deducted from the value of the building

With respect to the secured debt amount of the party right and the secured debt amount of the lease right with preferential payment right, the health expenses, 00 million won with respect to the maximum debt amount of the building of this case at the time of the donation of this case.

The secured debt of the right to collateral security, which is the 00 bank for the debtor, the 00th creditor of the right to collateral security, is 00 million won.

The facts are as follows: (a) there is no dispute between the parties; (b) the sum of the lease deposit amount with respect to the instant building is 00 million won in total; and (c) further, as at the time of the instant donation, the facts were acknowledged as follows: (a) the maximum debt amount set up as to the No. 101 and 501 of the instant building; (b) the obligor0 billion won in total; (c) the obligor 9-2, 3, and 4 of the evidence No. 9-2; and (d) the entire pleadings as to the secured debt amount of the instant building; and (d) the court’s order to submit financial transactions with 00 banks; and (c) the obligor 00 theory, the mortgagee 00; and (d) the obligee 00 bank and the mortgagee 10 bank concluded a mortgage contract on October 0, 2009.

00 Bill loans, certificates, or instruments, currently and in the future payable to 00 banks in respect of

inclusive to secure all obligations due to loans, current lending, or other credit transactions;

The fact that a collateral security agreement was made, at the time of the donation of this case, the 00 bank loaned 00 billion won on October 0, 2007 to 00 pre-loans, KRW 0 million loaned on October 0, 2009, KRW 71 million loaned on September 8, 2009, and KRW 71 million loaned on September 8, 2009.

According to the above facts, it is reasonable to view the secured debt amount of the right to collateral security, which is the maximum debt amount of KRW 101 and 501 of the building of this case, as at the time of the donation of this case, as the total debt amount of KRW 100 million against 00,000,000,000,000, which is the total debt amount of all loans to 00,000,000,000 under the above comprehensive collateral security agreement. However, since the above maximum debt amount of the right to collateral security is KRW 100,000,000,000,000,000,000 won is not the joint collateral of the general creditors at the time of the donation of this case,

4) Therefore, the joint collateral value at the time of the fraudulent act of the instant building would be 00000, and the Plaintiff’s actual collateral value would be 000

Amount of the taxation claims shall be KRW 0000,000, when set as of October 0, 2013, and the above joint co-dams

Since it is clear that the value of the defendant's compensation should exceed the reasonable value, the value of the defendant's compensation should be KRW 000,000.

D. Sub-committee

The donation contract concluded on the instant building between 00 and the Defendant shall be KRW 000,000.

shall be revoked within the scope of this Act, and as a result, the defendant shall be liable to the plaintiff for the equivalent value

Civil Code provides for KRW 0000,000 and for this time from the day following the day this judgment becomes final and conclusive to the day of full payment.

The damages for delay calculated at the interest rate of 5% per annum shall be payable.

3. Conclusion

The plaintiff's claim of this case is justified within the extent of the above recognition, and the remaining claim is not accepted.

The judgment of the court of first instance shall be dismissed because it is unfair to conclude a different conclusion. As such, it is so decided as per Disposition by accepting part of the defendant's appeal and changing the judgment of the court of first instance as above.

Article 21 (1) 1 of the Framework Act on National Taxes