In a lawsuit seeking revocation of a fraudulent act, compensation for value should be calculated as at the time of closing argument in the trial court.

If a security right has been established on an object transferred by a debtor, the liability property provided to the joint security of the general creditors out of such object shall be the remainder after deducting the amount of the secured claim.

Article 30 of the National Tax Collection Act and restitution to its original state.

Suwon District Court of Suwon District 2014Kahap208299 For revocation of fraudulent act

Korea

AA

on October 30, 2016

on 25, 2016

1. The sales contract concluded on April 2, 2013 with respect to each of the real estate listed in the separate sheet between the defendant and 00 shall be revoked within the limit of KRW 62,80,000.

2. The defendant shall pay to the plaintiff 62,80,000 won with 5% interest per annum from the day following the day when the judgment of this case is finalized to the day of complete payment.

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. Tax claims against the plaintiff's objection00

On February 7, 2013, the director of the tax office affiliated with the Plaintiff sent a notice of the result of tax investigation of KRW 2,164,805,409 with respect to the resale of unregistered real estate from 2007 to 2011. On April 4, 2013, the director of the tax office determined the total amount of global income tax of KRW 2,164,805,380 and notified the payment thereof by April 30, 2013. The details of the arrears are as listed in the following table. The total amount of global income tax and additional dues as of the date of the instant lawsuit is KRW 2,697,347,040 as of the date of the instant lawsuit.

(b) Sale and purchase of real estate 00;

On April 3, 2013, this00, each of the real estates listed in the separate sheet (hereinafter referred to as "each of the real estates in this case") was completed on April 3, 2013, and the registration of ownership transfer was completed for each of the following reasons: the defendant, who is the husband of a female 00 (hereinafter referred to as "the sales contract in this case") as to each of the real estates in the separate sheet (hereinafter referred to as "each of the real estates in this case").

(c) Insolvent of 00; or

00 At the time of the conclusion of the instant sales contract, the small property was in excess of the obligation exceeding the positive property.

D. On December 22, 2011, the collective security right of the instant 2, 3, and 4 real estate at the time of the instant purchase and sale contract, and 00-1 forest land of 00,000 square meters at 00,000 square meters at the time of the instant purchase and sale contract, the collective security right of the instant 2, 3, and 4 was completed on December 22, 201, the maximum debt amount of KRW 91,00,000,000 for the collective security right holder, and the collective security right of KRW 70,000,000. Meanwhile, the actual secured debt amount at the time of the instant purchase and sale contract was sold at KRW 16,59,00 won at the time of the voluntary sale procedure established after the instant purchase and sale contract (this shall be divided into KRW 00-1,00-11,000,000).

E. Transfer of ownership of each real estate of this case

After the instant sales contract and ownership transfer registration, the instant real estate No. 1 was sold to Kim 00,2670,000 won in the public sale procedure and the ownership transfer registration was completed on April 24, 2015. The instant real estate No. 2, 3, and 4 were sold to 00,000 won in the public sale procedure, and each ownership transfer registration was completed on October 12, 2015.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 16, purport of the whole pleadings

2. Whether a fraudulent act is constituted

A. Determination on the cause of the claim

(i) A preserved claim;

Tax obligations are naturally established without any need to identify the fulfillment of the taxation requirements (see, e.g., Supreme Court Decision 2008Da84458, May 14, 2009). According to Article 21(1)1 of the Framework Act on National Taxes, income tax becomes liable for tax payment at the end of the taxable period. Under Article 5(1) of the Income Tax Act, the taxable period of income tax is from January 1 to December 31, 2007, and thus, the global income tax from 2007 to 2011, which is the instant tax claim, became liable for tax payment at the end of each fiscal year. Since the instant sales contract was concluded on April 2, 201, which is the date of the final establishment of liability for global income tax payment, the instant obligee’s right of revocation becomes liable for tax payment (see, e.g., Supreme Court Decision 2008Da8458, Apr. 14, 2009).

2) dispositive act and intent of deception

The act of selling the real estate of this case to the defendant under excess of 00 constitutes a fraudulent act because it causes a lack of common creditors' joint security, such as the plaintiff, etc., and this constitutes a fraudulent act, thereby, is presumed to have been aware of the fact that the plaintiff, the creditor, was harmed, and the defendant's bad faith is presumed.

B. Judgment on the defendant's assertion

1) The assertion

The defendant asserted that the contract of this case was only transferred real estate of this case as security for the return of investment money, while offering investment money to the Investment Center introduced from 00 to raise the hospital expenses of 00 and the old age funds of the defendant and the defendant's husband and wife. The defendant asserted that the contract of this case was not known as fraudulent act.

2) Determination

In a lawsuit seeking revocation of a fraudulent act, the beneficiary bears the burden of proving that he/she was the fraudulent act, and in this case, there is an objective and objective evidence that the beneficiary was the bona fide at the time of the fraudulent act (see, e.g., Supreme Court Decision 2004Da61280, Jul. 4, 2006).

According to the purport of the evidence Nos. 5-1, 2, 6, and 7 of the evidence Nos. 5-1, 6, and 7, the Defendant invested KRW 150 million in the aggregate production business promoted by Kim 00 upon introduction of 00. However, such facts alone cannot be readily concluded that the real estate of this case was transferred to the Defendant as a security for the return of the investment amount by the Defendant. Even if the ownership was transferred as security, insofar as the real estate of this case was not secured by a general creditor, it constitutes a fraudulent act and thus, cannot be said that the Defendant’s good faith was proven. There is no other evidence that the Defendant had known that it was a fraudulent act.

Therefore, the defendant's above assertion is without merit.

3. Methods and scope of reinstatement;

(a) Relevant legal principles;

In a case where a juristic act on a certain real estate constitutes a fraudulent act, in principle, the said fraudulent act shall be revoked and the order shall be issued to restore the real estate itself, such as the cancellation of the registration of transfer of ownership. However, in a case where the restoration of the real estate itself is ordered by revocation of a fraudulent act and order the restoration of the portion which was not previously secured by the general creditors if it would result in a result contrary to the fairness and fairness, it is reasonable to revoke the fraudulent act and order compensation within the extent of the balance obtained by deducting the value of the portion which was not jointly secured from the value of the real estate (see, e.g., Supreme Court Decision 2007Da28819, Feb. 25, 2010). In a case where a compensation for value is ordered, the value of the real estate shall be calculated as at the time of the closing of arguments in the fact-finding court in the relevant lawsuit seeking revocation of a fraudulent act, barring any special circumstance (see, e.g., Supreme Court Decision 2009

In addition, if a security right has been established on an object transferred by a debtor, the property provided to the joint collateral of the general creditors is limited to the remainder after deducting the amount of the secured debt. In this context, where part of several real estate on which the joint mortgage is established is transferred, it is reasonable to view that the amount of the secured debt is divided by the amount of the secured debt of the joint mortgage in proportion to the value of each real estate which is the object of the joint mortgage in accordance with the purport of Article 368 of the Civil Act, barring any special circumstance (see, e.g., Supreme Court Decision 2003Da39989, Nov. 13,

B. Determination

Since the ownership of each of the instant real estate after the instant fraudulent act was transferred to a third party through a public auction or a voluntary auction, it is reasonable to order compensation for damages since the Plaintiff filed a claim for the return of the value against the Defendant, who is the beneficiary. Moreover, since the instant mortgage was established on the 2, 3, and 4 real estate and forest land in Busan 89-1 at the time of the instant fraudulent act, the liability property offered to general creditors’ joint security among the real estate Nos. 2, 3, and 4 of the instant case is limited to the remaining portion which remains after deducting the amount equivalent to the ratio of the value of the instant real estate No. 2, 3,

따라서 살피건대, 이 사건 변론종결일에 가까운 이 사건 제2, 3, 4부동산 가액의 합계는 4,511만 원이고 위 산89-1 임야의 가액은 1억 6,559만 원인 사실, 이 사건 근저당권의 사해행위 당시 실제 피담보채권액은 7,000만 원인 사실은 앞서 본 바와 같으므로, 이 사건 근저당권의 피담보채권액을 부동산 가액 비율로 안분하면 이 사건 제2, 3, 4부동산의 피담보채권액은 1,498만 원[＝7,000만 원× �4,511만 원/(4,511만 원＋1억6,559만 원) <]이고, 이 사건 제2, 3, 4부동산의 공동담보가액은 3,013만 원(＝4,511만 원－1,498만 원)이 된다.

Furthermore, since the value of the real estate No. 1, which is close to the date of closing the argument of this case, exceeds KRW 32.67 million, the joint collateral value of each of the real estate of this case is KRW 62.8 million ( KRW 3.267 million + KRW 30.3 million) and this falls short of the amount of the Plaintiff’s preserved claim, the scope of revocation due to the fraudulent act of this case is limited to the above KRW 62.8 million. Therefore, the sales contract of this case shall be revoked within the limit of KRW 62.8 million, and the Defendant is obliged to pay the Plaintiff with compensation for value at the rate of KRW 62.8 million and damages for delay at the rate of KRW 5% per annum as stipulated in the Civil Act from the day after the date of completion of the judgment of this case to the day of full payment.

4. Conclusion

Therefore, we decide to accept the plaintiff's claim and it is so decided as per Disposition.