Korea

Defendant 1 and one other (Law Firm Jeong, Attorneys Gyeong-soo et al., Counsel for the defendant-appellant)

February 9, 2012

Incheon District Court Decision 2010Gahap15178 Decided May 24, 2011

1. All appeals by the Defendants are dismissed.

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

1. Purport of claim

A. (1) The contract of donation amounting to KRW 310 million concluded on May 26, 2008 between Defendant 1 and Nonparty (resident registration number omitted) shall be revoked.

(2) Defendant 1 shall pay to the Plaintiff 30 million won with 5% interest per annum from the day this judgment became final to the day of complete payment.

B. (1) The contract of donation amounting to KRW 130 million concluded on June 16, 2008 between Defendant 2 and the Nonparty (resident registration number omitted) shall be revoked.

(2) Defendant 2 shall pay to the Plaintiff 10 million won with 5% interest per annum from the day this judgment became final to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation on this case is as follows: (a) the statement of delinquent tax amount stated in the judgment of the first instance court No. 4; (b) whether there exists a gift agreement; and (c) the entire provision of the "restatement No. 9 and 10; and (d) the ground for recognition of the fourth and seventh deeds; and (b) the non-party to the witness at the last place of the fourth and seventh deeds No. 18 and the non-party to the first instance trial as the non-party to the first instance trial; and (f) the first instance court's ruling No. 14 was identical to the corresponding part of the reasoning for the judgment, except for the correction of the "legal relationship" as the "legal relationship". Thus, this is cited as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

본문내 포함된 표 세 목 귀 속 납부기한 체납세액 종합부동산세 2007년 2008. 6. 4. 5,794,690원 양도소득세 2008년 2008. 11. 30. 120,623,150원 양도소득세 2008년 2009. 1. 31. 370,997,830원 합 계 ？ ？ 497,415,670원

[B] Whether a gift contract exists

On May 26, 2008, the above non-party remitted KRW 310 million from May 26, 2008 to Defendant 1’s bank account (Account Number 1 omitted). On June 16, 2008, the remittance of KRW 130 million from Defendant 2’s own account (Account Number 2 omitted) to Defendant 2’s financial account is as seen above, and upon full consideration of the following purport: (a) evidence No. 1-2, 3, 1-B (including serial number 1); and (b) evidence No. 1-6 (including serial number 700 million) and the testimony of the non-party at the first instance trial witness, the non-party transferred KRW 70 billion from Defendant 1’s financial account on November 27, 1997; and (c) the defendants transferred KRW 800 million from each of the above accounts on May 26, 2008 to the non-party 208.

In full view of various circumstances known in the above recognition facts, especially the Nonparty withdrawn most of the transfers immediately after the transfer to the Defendants, and consumed them for their personal use, and the Defendants did not assert reasonable grounds as to the reasons for the transfer and withdrawal of the Nonparty up to the trial. In addition, the Nonparty appeared in the first instance trial and directly stated that the reasons for the transfer and withdrawal to the Defendants were the purpose of avoiding the tax authorities’ tracking of the funds as above, it is reasonable to deem that each of the above transfers to the Defendants by the Nonparty was aimed at evading the Plaintiff’s recovery of funds from the Plaintiff or compulsory execution against the Nonparty’s deposit claims, barring any other special circumstances.

Therefore, the non-party's act of remitting cash to the defendants without any consideration or consideration, and allowing the defendants to revert property profits equivalent to the amount deposited in the defendants' name at the time of deposit shall be deemed to have occurred from the non-party's economic effect of transferring property profits without compensation from the defendants, and in view of the legal point of view, barring any other special circumstances, the agreement between the non-party and the defendants on a kind of donation between the non-party and the defendants shall be deemed to have existed. However, as long as the parties' intent to escape from compulsory execution is determined that the non-party did not desire to take the legal effect of the above donation, the expression of intent of each transfer, which is the basis of the above transfer, constitutes false indication. Further, even if the legal act of the debtor is a false indication, it shall be deemed as subject to the obligee's right of revocation (see Supreme Court Decision 97Da50985, Feb. 27, 1998, etc.). Although each of the above transfers to the defendants of the non-party, each of the above remittance's act of revocation still exists.

[E] Revocation of fraudulent act and restitution to original state]

Therefore, each contract of donation against the non-party shall be revoked as a fraudulent act, and the amount received by the defendants shall be restored to its original state. As of February 9, 2012, which is the closing date of pleadings at the trial, the amount of the plaintiff's claim against the non-party as of February 9, 2012, at least 497,415,670 won exceeds the total amount received by the non-party to the defendants. Thus, all of the above contract of donation to the non-party's defendants within the above scope is revoked, and the defendant 1 is restored to its original state. The plaintiff 1 is obliged to pay damages for delay at the rate of 5% per annum from the day following the day when the judgment becomes final and conclusive to the day when the above non-party is fully repaid. The plaintiff 2 is obligated to pay damages for delay at the rate of 130,000,000 won donated by the above non-party to the plaintiff from the day after the above non-party and the day after the above judgment becomes final and conclusive (the plaintiff's damages for delay are also justified).

2. Conclusion

Therefore, each of the claims against the defendants of this case against the defendants is justified within the scope of the above recognition, and each of the remaining claims is dismissed as it is without merit. Since the judgment of the court of first instance is justified as it is in conclusion, each appeal by the defendants is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Sang-hoon (Presiding Judge)