If real estate has been provided to a certain creditor as security, it shall not be deemed that a fraudulent act is established only if the security is the only real estate owned by the debtor.

In order to become a fraudulent act by offering a security to a certain creditor, a fraudulent act may be established only if the debtor has already been in excess of his/her obligation, and if the debtor has already been able to obtain preferential reimbursement to other creditors only, it may result in the reduction of the joint security of other general creditors, and if the security has been provided to a certain creditor as security, only if the security is the only real estate owned by the debtor.

Article 30 of the National Tax Collection Act

2012 Gohap 502828 Revocation of Fraudulent Act

Korea

Song AA

November 30, 2012

December 14, 2012

1. The contract for the creation of a neighboring mortgage concluded on January 5, 201 with respect to the real estate listed in the separate sheet between the Defendant and Nonparty D shall be revoked.

2. The Defendant transferred to Nonparty D a claim for dividend payment of KRW 000 to the Defendant in the case of a real estate auction in Seoul Central District Court No. 201tata, No. 34041, and notified Nonparty D of the assignment of claim to the Republic of Korea other than Seoul Central District Court (Jurisdiction: Cash Accounting Official other than Seoul Central District Court

3. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

(a) Disposition on imposition of value-added tax, etc. on database;

1) The director of the tax office affiliated with the Plaintiff received a false tax invoice equivalent to approximately KRW 000 from January 3, 2009 to February 2, 2009, and discovered about the omission of sales equivalent to approximately 000 won, and around December 1, 2010, impose on the Representative F of EE stations the value-added tax amount of KRW 00 for the first year of 2009 and KRW 000 for the second year of 2009, and the global income tax amount of KRW 000 for the second year of 2009. The FF filed an appeal against the above tax imposition disposition around March 3, 201, while the director of the tax office affiliated with the Plaintiff identified the actual operator of EE stations, and revoked the disposition for global income tax imposition for the second year of 2000,000,000 for the second year of 200,000 for the second year of 200,000.

2) In addition to EE gas stations, the Plaintiff also receives false tax invoices in the same manner as EE gas stations in the GG gas stations, H gas stations, J gas stations, and blue Space stations (hereinafter referred to as “instant gas stations”) operated by ED using another person’s name, and discovered the omission of sales, and then imposed value-added tax and global income tax on D from July 201 to December 201, 201, and finally imposed on D (hereinafter referred to as “tax”). The tax details imposed on D are as follows (hereinafter referred to as “instant tax”).

B. Establishment of the instant collateral security right

1) On January 5, 2011, 201, AD entered into a mortgage agreement with the Defendant on a maximum debt amount of 000 won (hereinafter referred to as “instant collateral agreement”) with respect to the real estate listed in the attached list (hereinafter referred to as “the instant real estate”) and completed the registration of creation of a mortgage in the instant neighborhood by the Seoul Central District Court No. 592, the receipt of the registration of the Seoul Central District Court.

2) On the other hand, in the Seoul Central District Court Decision 201Ma34041, which was in progress with respect to the instant real estate, a distribution schedule was prepared on November 9, 2012 to distribute 000 won to the Defendant, who is the mortgagee of the instant case.

C. Criminal judgments, etc. on D

1) On June 10, 201, AD was convicted on the following grounds: (a) employing a temporary branch, operating a number of gas stations including the instant gas stations; (b) receiving false tax invoices; (c) obtaining tax credits by submitting a false tax invoice to the competent tax office; and (d) selling pseudo petroleum products in the aforementioned gas stations; and (b) having sold pseudo petroleum products in the Suwon District Court on February 22, 2012; and (c) having been convicted on February 22, 2012 as the Suwon District Court Support 201 Gohap242,247, and 2012Gohap35 (Joint).

2) With respect to taxation disposition related to the EE stations,G gas stations, HH stations, and J gas stations, Does have not yet been decided upon by the Tax Tribunal on September 5, 2012, by asserting that Does have not been the actual operator of the above gas stations, and that the Tax Tribunal has not yet decided to dismiss the tax appeal related to the ES stations,G gas stations, and the HH stations of the machine, and the Haurririririri Tax Island.

[Grounds for Recognition] The facts without dispute, Gap 1 to 3, 11 to 29, and Eul 2, and the purport of the whole pleadings

2. The parties' arguments and issues

A. The plaintiff

DD created the instant collateral security to the Defendant on January 5, 201 in excess of debt, resulting in the lack of common security for general creditors, including the Plaintiff, by setting up the instant collateral security with respect to the instant real estate on January 5, 201. The instant collateral security contract constitutes a fraudulent act and thus should be revoked.

(b)the defendant;

1) Under the premise that the actual operator of the gas station of this case is AD, the Plaintiff imposed taxes, such as value-added tax, on the person liable for duty payment of AD, while D is not the actual operator of the gas station of this case, and thus, the Plaintiff’s disposition of imposing taxes on AD is unlawful.

2) 이DD는 이 사건 근저당권설정계약 당시 ① 이 사건 부동산 약 000 원 상당，② 서울 영등포구 OO동 000외 2필지 약 000원 상당，③ EE 엔터테인먼트 주식회사(이하 'EE엔터테인먼트'라 한다)의 주식 2，000주 약 000 원 상당，④ EE엔터테인먼트의 서울 강남구 OO동 000 사무실 임대차보증금반환채권 000원，⑤ FF리조트 골프회원권 시가 약 000원 상당，⑥ 벤츠승용차 약 000원 상당，➆ 이 사건 주유소 중 GG주유소， HH주유소， IIIII 주유소의 시설비 등 합계 약 000원 상당，➇ KK주유소， LL주유소의 시설비 등 합계 약 000원 상당，⑨ 2010년도 종합소득 및 근로소득 등 합계 000원 상당 합계 약 000원 상당의 적극재산을 보유하고 있었고，소극재산이 적극재산보다 적었으므로 채무초과 상태에 있지 아니하였다.

3) AD shall not constitute a fraudulent act by promising the Defendant to borrow additional money from the vehicle having difficulties in the project due to the financial difficulties at the time of January 201, 201, and thus entering into the instant mortgage contract in return for the payment of funds to continue the project.

4) From July 1, 201 to December 1, 2011, the time when the instant mortgage contract was concluded, the Plaintiff imposed value-added tax, etc. on the gas station in the instant case on Do only during the period from July 1, 2011 to December of the same year, and DoD did not appear to have had any intention to harm DoD or the Defendant, on the ground that DoD or the Defendant had had any knowledge about the fact that a large amount of tax was imposed on Does as seen above at the time of

5) From July 2006 to May 201, 201, the person who was the Defendant and the Defendant lent a total of KRW 000 to DaD at the interest rate of 2% per month, and the above loan principal and interest was around KRW 000 at the time of January 201, but was not aware that the instant mortgage agreement was established as a security for the loan, and that the instant mortgage agreement constituted a fraudulent act.

3. Judgment by issue

(a) Existence of preserved claims (whether illegality of the tax imposition disposition is illegal);

1) 위 인정사실에 갑 제1，2，11 내지 29호증，을 제2호증의 각 기재 및 변론 전체의 취지를 더하여 인정되는 다음과 같은 사정들，즉 ① 이 사건 주유소의 명의상 대표자들인 엄FF，김MM，강NN，김PP，김QQ，신RR 임SS는 모두 이 사건 주유소의 실제 운영자는 이DD라고 진술한 점，② 이DD는 이 사건 주유소를 포함한 다수 의 주유소를 실질적으로 운영하면서 속칭 바지사장을 고용하고，허위 세금계산서를 수취하였다는 등의 범죄사실로 유죄판결을 선고받은 점，③ 이DD는 이 사건 주유소 중 II주유소，청우주유소 관련 조세부과 처분에 대하여는 불복신청을 하지 않은 점，④ 이DD는 EE주유소，GG주유소，HH주유소，JJ주유소 관련 조세부과 처분에 대하여 불복하여 조세심판청구를 하였으나，조세심판원은 EE주유소，GG주유소의 실제 운영자가 이DD라고 인정하여 조세심판청구를 기각한 점[HH주유소，JJ주유소 관련 조세심판 결정은 이 사건 변론종결 시까지 내려지지 아니하였다] 등을 종합하여 보면，이DD는 이 사건 주유소의 실제 운영자라고 넉넉히 인정할 수 있으므로，이 DD에 대한 이 사건 조세부과 처분은 적법하다.

2) Meanwhile, in principle, a claim that can be protected by the obligee’s right of revocation is required to be created before the fraudulent act was committed, but it is merely a legal relationship that has already existed at the time of the fraudulent act, and it is highly probable that the claim would be established in the future because it is realized in the near future (see, e.g., Supreme Court Decision 97Da33434, Oct. 28, 1997). In the instant case, it is reasonable to view that the Plaintiff’s tax imposition disposition on this case was made between July 201, 201 and December 201, and that it was made between the Plaintiff’s establishment of the instant right of revocation and December 201, it is reasonable to view that the instant tax disposition was made in the name of the person against whom it was actually operated, and that it was made in the name of the public prosecutor prior to the establishment of the instant right of revocation, and that it was made in the name of the person against whom it was reported, and that it was made in the name of the instant tax claim.

B. Whether the debt exceeds the debt of DoD

1) According to the overall purport of Gap evidence Nos. 3 through 10, and evidence Nos. 5 and 6, and according to the whole purport of the arguments, Eul's active assets and small assets at the time of establishing the mortgage of this case are as follows:

2) In addition to those recognized in the above table, the defendant asserts that Dod has positive property as seen below, but there is no evidence to prove that Dodd's additional positive property claimed by the defendant is not real value of the property or that Dod's additional property was owned by Dod's property.

(a) EEN Entertainment stocks 2,000 shares;

According to the overall purport of the arguments in Gap evidence 22-1, evidence 2, and evidence 30-2, it is reasonable to view that the EEN Entertainment had no real value of property at the time of establishing the mortgage-backed security agreement in this case, while the EEN Entertainment had 00 capital as of December 31, 2010, and the debt had 00 won, and the above company had already been capital potential since it had been closed on April 25, 201, and the above facts were found.

B) According to the records in evidence 4-2 of evidence 4-2 of EE Entertainment’s claim for the return of lease deposit amount of KRW 000, and evidence 4-2, as the representative director of EE EE Entertainment, it is recognized that AD entered into a lease agreement of KRW 000, monthly rent of KRW 00, and KRW 000, management fee of the building located in O-dong 607, Gangnam-gu, Seoul around October 13, 2009, as the representative director of EE EE Entertainment. However, the lease agreement was concluded in the qualification of the representative director of EE EE Entertainment, a corporation that is not a D individual, and the claim for the return of lease deposit upon the termination of the said agreement is difficult to be considered as the active property of EE Entertainment, as the property of ED individual

C) Among the gas stations of this case, GG stations, HH stations, and HI stations equivalent to approximately KRW 000, the sum of the lease deposit and facility costs of the gas stations, and KRW 000,00. Based on the judgment of the criminal court of Do, the Defendant asserts that the above gas stations should also be included in DoD’s active property, because DoD actually owns the gas stations and K stations, and the LL stations, based on the judgment of Do; (i) HH stations, JJ stations, K gas stations, and LL, which had already been closed before the conclusion of the mortgage contract of this case; (ii) there is no real value of 3H stations and K gas stations (Evidence No. 164), and that there is no real value of 10,000 or 10,000,000,000 or more, and that there is no real value of 10,010 or more,000,000 or more,000,00 or more,000.1.

D) a total of 000 won, including global income, etc. in 2010 of DoD’s 2010

According to the statements in Eul evidence 7 and 8, it is difficult to view that these amounts are active property of DoD unless there is any evidence that DoD calculated income of 000 won in total, including global income in 2010, and there is no evidence that DoD was possessed without consuming the above income at the time of entering into the mortgage contract in this case.

3) According to the facts acknowledged earlier, since the small assets of Doese exceed active property at the time of the instant mortgage contract, it is recognized that Doese had been in excess of the obligation (the same shall apply where Doese property exceeds active property even if the Defendant’s active property includes the cost of the gas station facilities, etc. among the property claimed by Doese that should be included as active property).

C. Establishment of fraudulent act

1) In order to become a fraudulent act, the requirement is that an obligor has already been in excess of his/her obligation, and that it would result in the reduction of the joint security of other general creditors by allowing only those creditors to obtain preferential reimbursement compared to other creditors. In cases where real estate has been provided to a certain creditor as security, only if the security is the only real estate owned by the obligor, it cannot be deemed that a fraudulent act has been established (see, e.g., Supreme Court Decisions 2005Da47106, 4713, 47120, Feb. 14, 2008).

2) In this case, AD created the instant mortgage on the instant real estate in excess of its obligation to the Defendant on January 5, 201, thereby reducing the joint security of the general creditors including the Plaintiff, and the instant mortgage contract constitutes a fraudulent act, barring any special circumstance.

3) The Defendant, and DoD set up the instant mortgage to the Defendant to borrow funds to continue the business, which is argued that this does not constitute a fraudulent act, but there is no evidence to support that the Defendant additionally lent the instant mortgage to DoD after the conclusion of the instant mortgage contract, and the said argument is without merit without further review.

4) On the other hand, DoD is a person who actually operates the instant gas station, and when value-added tax and global income tax were imposed on the representatives of the instant gas station in the name of its mother, it would have set up the instant right to collateral security in the future of the Defendant, who was his mother, and DoD could have sufficiently anticipated that the instant tax would be imposed on her mother, who was the actual operator of the said gas station, and it would have set up the instant right to collateral security in the Defendant to avoid delinquency disposition. Therefore, DoD's intent to commit suicide is also recognized.

D. Determination as to the defendant's bona fide defense

In order to secure the principal and interest of loans to DoD, the Defendant was only set up the instant mortgage, and did not know that the instant mortgage contract constituted a fraudulent act, and there was no evidence to support that the Defendant did not know that the instant mortgage contract constituted a fraudulent act. Rather, in addition to the overall purport of the pleadings, the following circumstances acknowledged in the facts of recognition: (i) the Defendant and DoD are in a relationship between the Defendant and the mother; (ii) Dod has operated a number of gas stations including the instant gas stations along with the leT, and the TT, TU, and TU.U. In accordance with the Defendant’s argument, it is reasonable to view that the Defendant was aware that the establishment of the instant mortgage contract constituted a fraudulent act by taking into account the following circumstances, which were considerably more than three times the maximum debt amount, and that the establishment of the instant mortgage contract constitutes a fraudulent act in light of the trade concept of the instant case, even if the principal and interest on loans to Dod was around 00 won at the time of its operation.

E. Sub-committee

Therefore, the mortgage contract of this case constitutes a fraudulent act, and the defendant is obliged to cancel it and restore it to its original state, and the defendant is obliged to transfer 000 won dividends payment claim to the defendant in the real estate auction case No. 34041, Seoul Central District Court 201, the real estate of this case, and to notify the Republic of Korea of the assignment of claims.

4. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.