Daejeon District Court 2012 Gohap10259 ( October 20, 2012)

Only the fact of deposit with another person's account can not assert revocation of fraudulent act.

Although it is recognized that the amount deemed as part of the purchase price of real estate has been remitted to the son’s account, it is difficult to recognize that this amount has the intention of donation to be ultimately reverted to the defendant, and the assertion of revocation of fraudulent act premised on the intention of donation is groundless.

2012Na10711 Revocation of Fraudulent Act

Korea

Park AAA

Daejeon District Court Decision 2012Gahap10259 Decided July 20, 2012

May 1, 2013

May 15, 2013

1. Revocation of a judgment of the first instance;

2. All of the plaintiff's claims are dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

A. The contract of donation concluded on October 26, 2009 between the defendant and the non-party KimB on the transfer price deposited to the defendant stated in the attached cash donation details shall be revoked.

B. The defendant shall pay to the plaintiff 00 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

In full view of the overall purport of the arguments in Gap evidence Nos. 1 through 5 (including the number of branch numbers), and the fact that the defendant's ASEAN livestock account (the account No. 0000, 937 "the account No. 2,615/3, and 937" (hereinafter referred to as "the real estate in this case") was remitted to the 2,615/3, and 937 "the real estate in this case"), each of which was registered under the name of the KimCC and KimDD on October 1, 2009, for which the transfer registration for ownership was made on the ground of sale on October 26, 2009, KimD transferred Don Livestock account (the account No. 1: 000, hereinafter referred to as "the account in this case") of KimB to the 200,000 won, and that the head of the tax office notified the transfer of the real estate in this case to the 200,000 won.

2. Determination as to the cause of action

A. The parties' assertion

The plaintiff, and KimB, even though they knew that they would be exempted from the disposition of delinquency in the payment of capital gains tax, they would in collusion with the defendant to transfer KRW 000,000 out of the purchase price of the real estate in this case to the account in this case, and the defendant also knew that the above donation would prejudice the plaintiff. Thus, the above donation contract should be revoked pursuant to Article 406 of the Civil Act or Article 30 of the National Tax Collection Act, and the defendant argued that the above 00 won should be paid to the plaintiff as the restoration following the cancellation of the above donation contract, and the defendant's assertion that the above 00 won should be paid to the plaintiff, not to the actual user of the reorganization in this case, but to the defendant's father, it cannot be deemed that the above 000 won donation contract was established between G and the defendant, and that the plaintiff's assertion seeking its revocation and restitution is without merit.

B. Determination

1) In order to have concluded the above 00 won of the Plaintiff’s transfer to the said account under a false agreement with the Defendant, it should be interpreted that the above 00 won was reverted to the Defendant, and that there was an agreement between the Defendant’s father and the Defendant to grant the transferred money free of charge. The burden of proof lies in the Plaintiff asserting that the above remittance was subject to obligee’s right of revocation. Meanwhile, in the event that the money was transferred to another person’s account, the remittance is possible based on various legal causes, and that the person in a certain relationship was remitted to one’s own deposit account, or that the Defendant consented or understood that the money was transferred to the Defendant’s account for 00 won, and that the account was de facto controlled by the good faith bank account for that purpose, and that there was no other evidence that the remittance was made between the remitter and the account holder as above 200 days prior to the conclusion that the money was transferred to the Defendant’s account, and that there was no other evidence that the account holder had been made free of charge between the Defendant and the account holder.

2) The Plaintiff asserted that the act of opening the instant account in the name of the Defendant, KimB or ParkE, as a deposit holder’s name, constitutes a fraudulent act against the Plaintiff. However, the Plaintiff does not seek revocation of the title trust agreement between the Defendant and KimOOO or ParkE in relation to the institutionalization of the instant case, and there is no evidence to prove that KimB or ParkE had opened the instant account even though it was aware that the Plaintiff would harm the Plaintiff, and the said assertion is without merit.

3) In addition, the plaintiff, the debtor KimB, did not raise any objection against the disposition of capital gains tax on the transfer of the real estate in this case, and the defendant did not raise any objection against the disposition of capital gains tax on the transfer of the real estate in this case, it is alleged that the defendant violated the principle of trust and good faith, but the circumstance cited by the plaintiff alone is difficult to see that KimB or the defendant provided a faith to the plaintiff or that the plaintiff was in a legitimate state, or that the plaintiff was objectively viewed as being in a legitimate state, and there is no ground to see that the defendant's above argument in this regard constitutes a content that cannot be acceptable in light of

3. Conclusion

If so, all of the plaintiff's claims shall be dismissed as it is without merit, and the judgment of the court of first instance which has different conclusions is unfair, and all of the plaintiff's claims shall be dismissed. It is so decided as per Disposition.