Seogsan Branch of the Daejeon District Court-2014-Ja-53938 ( October 14, 2015),

The sales contract of this case must be cancelled by compensation for value.

Since there is a preserved claim and a fraudulent act is established, restitution following the cancellation of the sales contract of this case should be cancelled by compensation for value.

Article 406 of the Civil Act, Article 30 of the National Tax Collection Act

2015Na105818 Revocation of Fraudulent Act

Korea

○ ○

November 27, 2015

January 8, 2016

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

The sales contract concluded on October 22, 2010 between Defendant AA and BB with respect to the real estate listed in the separate sheet is revoked. The Defendants jointly pay to the Plaintiff ○○○○ and its amount at a rate of 5% per annum from the day following the day this judgment became final and conclusive to the day of full payment.

2. Purport of appeal

The part against the Defendants in the judgment of the first instance is revoked, and all of the Plaintiff’s claims against the Defendants corresponding to that part are dismissed.

1. Quotation of judgment of the first instance;

The reasons for the court's explanation on this case are as follows: (a) BB failed to pay national taxes to the Plaintiff on April 2015, 2015; (b) from around 2006 to around 142-3, 2010; and (c) was notified of the capital gains tax of ○○○○○ on August 11, 201. BB transferred 1 lots of land to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○.

2. Parts in height:

B. Establishment of fraudulent act

1) As above, the transfer of the instant real estate, which is the only property in fact only for the Plaintiff, to Defendant AA with knowledge that BB bears tax liability as seen above, to the Plaintiff, thereby causing or deepening the shortage of common creditors, including the Plaintiff, constitutes a fraudulent act. The intent of the harm of the Plaintiff is recognized, and accordingly, the beneficiary and the subsequent purchaser are presumed to have been malicious by the Defendants, who are the subsequent purchaser. Accordingly, the instant sales contract should be revoked as a fraudulent act detrimental to other creditors, including the Plaintiff, barring any special circumstance.

2) Determination as to the defendants' assertion

A) The Defendants asserted that the instant sales contract does not constitute fraudulent act, inasmuch as Defendant AA was transferred the instant real property, the sole property of BB, from the source of securing claims against BB as the creditors of BB, Defendant AA would pay the ○○○○○○○○○ in the process of securing claims against BB, and that the instant sales contract does not constitute fraudulent act.

Unless there are special circumstances, changing the sale of real estate, which is the only property of an obligor, into money that can be consumed by the sale of real estate, becomes a fraudulent act, and the debtor's intent of deception, which is a subjective element of a fraudulent act, refers to recognizing that there is a shortage of common security of claims, and thus, it does not require or intent to harm the creditor, and where the debtor sells real estate, which is the only property, and alters the proceeds with money that can be consumed by the debtor, it is presumed that the debtor's intention is presumed to be the debtor, and the burden of proof that the purchaser or the transferee did not have bad faith exists in the beneficiary (see Supreme Court Decision 2008Da84458, May

In conclusion, Defendant AA did not have any evidence to regard it as a creditor against BB, and even according to the Defendants’ assertion, the instant real estate, the property of which BB is the only property, was transferred to Defendant AA, the beneficiary, causing or deepening the shortage of common creditors including the Plaintiff, and accordingly, Defendant AAA’s bad faith is presumed to have been presumed to have been the beneficiary. Therefore, the Defendants’ assertion is without merit.

B) The Defendants asserted to the effect that Defendant AA, a transfer of the instant real estate, intended to secure a claim against BB by other means. However, the Defendants returned the instant real estate in the name of Defendant CCC, which is a son of BB, not BB, because the creditors of BB had concerns over taking measures to seize the instant real estate, etc., and Defendant DD transferred the sales price of the instant real estate to Defendant CCC after preparing funds to enable BB to continue residing in the instant real estate, and then partially repaid the said funds to Defendant AAA, while Defendant CCC and DD did not know that the instant sales contract constituted a fraudulent act.

A lawsuit for revocation of a fraudulent act may be instituted against only a part of a beneficiary or subsequent purchaser, or against a beneficiary and a subsequent purchaser as a co-defendant. In a lawsuit for revocation of a fraudulent act, the beneficiary or subsequent purchaser are not obligated to prove that the beneficiary or subsequent purchaser is maliciously liable to prove the fact that the beneficiary or subsequent purchaser is the beneficiary or subsequent purchaser (see, e.g., Supreme Court Decision 2009Da81920, Sept. 29, 201).

However, the evidence submitted by the Defendants alone is insufficient to recognize that Defendant CCC and DD were bona fide at the time of acquiring the instant real estate by transfer, and there is no other evidence to acknowledge this. Therefore, this part of the Defendants’ assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remainder is dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and all appeals by the defendants are dismissed. It is so decided as per Disposition.