disposal of one real estate for the purpose of evading capital gains tax constitutes a fraudulent act.

The act of transferring real estate remaining after the transfer to Yong-Nam for the purpose of evading capital gains tax constitutes a fraudulent act.

Article 406 of the Civil Code / Revocation of Fraudulent Act

Jeonju District Court's Southern District Court-2017-Ban-1743

Korea

CHAPTER A

Pleadings without Oral Proceedings

December 13, 2017

1. The sales contract concluded on March 14, 2016 between the defendant and thisA with respect to each real estate listed in the separate sheet shall be revoked.

2. The Defendant shall comply with the procedures for cancellation registration of ownership transfer registration, which was completed on April 4, 2016 by the receipt of No. 5943, with respect to each real estate listed in the separate sheet, to thisA.

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

The same shall apply to the order.

1. Indication of claim;

The reasons for the attached Form shall be as shown in the attached Form.

2. Judgment without holding any pleadings (Articles 208 (3) 1 and 257 of the Civil Procedure Act);

1. Basic facts

A. The Plaintiff’s reason for imposing capital gains tax on Nonparty A

1) On February 20, 2016, Nonparty A transferred KRW 1,350,00,000 of the O-O-O’s O-O’s O-O’s size and KRW 1,350,000, and reported capital gains tax on November 2, 2016. However, on January 11, 2017, Nonparty A notified thisA of KRW 17,343,510 as the due date for payment of capital gains tax on January 31, 2017 (A’s report on tax base for capital gains tax and the revised decision on collection of KRW 2,000,00).

2) Meanwhile, on March 14, 2016, Nonparty A transferred O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-type buildings (attached Form No. 295, hereinafter referred to as "real estate of this case") to KRW 295,00,00, and reported capital gains tax on April 25, 2016, and paid capital gains tax without filing a report on April 10, 201, the head of the tax office under the Plaintiff-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O No.36.

3) Nonparty A did not pay capital gains tax of KRW 248,229,780, including additional dues of KRW 19,547,270, up to the date of filing a lawsuit (see, e.g., the Inquiry for Non-Party A’s Default).

on September 9, 2017, the amount of national taxes in arrears at present in this Schedule 1.

(unit: Won)

Jurisdiction

Items of Taxation

Reversion

Deadline for payment

Liability for Tax Payment

Date of establishment

Notice Tax Amount

Amount in arrears

South Korean Won

Transfer Income Tax

2016

January 31, 2017

Mar. 31, 2016

177,343,510

197,560,650

Transfer Income Tax

2016

February 28, 2017

April 30, 2016

45,979,260

50,669,130

Total

223,322,770

248,229,780

B. The circumstances leading to Nonparty A’s real estate disposal

After the purchase and sale contract on February 20, 2016, Non-Party A predicted that an OO transfer of ownership on March 30, 2016 will be notified of the higher amount of transfer income tax on the OO-Eup's land and building later. On March 14, 2016, Non-Party A entered into a sales contract with the Defendant head of the Gu and completed the ownership transfer registration under the OOO of the O District Court OO branch on April 4, 2016 (No. 6 certified copy of the real estate register).

(c) Relationship between the parties;

The plaintiff is a person with a tax claim against the non-party A, and the defendant heada shall have the status of the non-party A's wife (Evidence A No. 7 A, a certified copy of the marriage certificate, a certified copy of the evidence No. 8, and a certified copy of the evidence No. 8, respectively).

2. Formation of preserved claims;

First of all, with respect to the preserved claim of the obligee's right of revocation, the Supreme Court requires that in principle, a claim protected by the obligee's right of revocation was created prior to the occurrence of an act that can be viewed as a fraudulent act, but it is highly probable that the legal relationship, which serves as the basis of the establishment of the claim, has already occurred at the time of the fraudulent act, and that, in the near future, the establishment of the claim is likely to become effective in the near future, the claim may also be preserved claim in the near future, and the legal relationship, which forms the basis of the establishment of the claim, shall not be limited to the legal relationship under an agreement between the parties, but shall include the quasi-legal relationship, fact-finding, etc. with the probability of the establishment of the claim (see, e.g., Supreme Court Decision 2002Da42957, Nov. 8, 2002).

In this case, income tax on gains from the transfer of assets is established on the last day of the month (the month to which the date of the transfer of assets belongs) in which the amount that serves as the tax base is generated (see Article 21(2)2 of the Framework Act on National Taxes). Thus, Nonparty A’s obligation to pay capital gains tax on the transfer of real estate based on the non-party A’s transfer of real estate based on the non-party A’s real estate based on the non-party A’s identity in Echeon-si, Gyeonggi-do was established after March 31,

However, as of March 14, 2016, the date of fraudulent act, a sales contract was established, which is the basis of the establishment of a taxation claim, which is the preserved claim as of March 14, 2016 (as of February 20, 2016), and there was a high probability for the Plaintiff to establish a taxation claim against Non-Party A by based on its legal relations in the near future. In fact, the Plaintiff’s tax claim against Non-Party A against the non-Party A becomes final and conclusive on January 11, 2017 by issuing a capital gains tax notice to Non-Party A, and thus, the pertinent taxation claim of this case against the Plaintiff constitutes the preserved claim of the lawsuit seeking revocation of fraudulent act (see, e.g., the real estate sales contract (see, e.

3. The intention to commit fraudulent acts and to injure himself;

A. The act of fraudulent act by Nonparty A

Unless there are special circumstances, the debtor's act of selling real estate, which is one of his own exclusive property, and replacing it with money which is easy for him to consume is always a fraudulent act against the creditor (see Supreme Court Decision 2000Da41875, Apr. 24, 2001). Thus, the act of selling and selling the real estate of this case to the defendant, which is the only property under the circumstance where the non-party A is expected to bear a capital gains tax liability against the plaintiff, constitutes a fraudulent act that

B. The Non-Party A’s intention to commit suicide

As mentioned above, although Non-Party A could expect that the transfer income tax will be notified in the future, it transferred the real estate in this case to the wife for sale and purchase and deepens the status of excess of liabilities. In addition, Non-Party A made a normal report on the transfer income tax on April 25, 2016 after the transfer registration of ownership on the real estate in this case on April 4, 2016, but it is apparent that Non-Party A made a fraudulent act with an intention to impair the taxation right holder, even though Non-Party A had completed the transfer registration on March 30, 2016 on the OOO OO OO OO OOOOOO on which it is anticipated that the transfer income tax will be notified, it is obvious that Non-Party A made a subsequent report on the transfer income tax on November 2, 2016.

(c) Debt excess;

On March 14, 2016, by disposing of the instant real property by Nonparty A to the Defendant on March 14, 2016, Nonparty A sold the instant real property, the sum of Nonparty A’s active property is KRW 42,624,328, and Nonparty A’s passive property is KRW 1,012,906,120, including the instant tax liability. As a result of the sales of the instant real property, Nonparty A further deepened the status of Nonparty A’s active property (Evidence 10, 11, and details of negative property).

Active Property

1

Gyeonggi Mine Rabin Union

Balance of Deposits

326,021

Gap evidence 10-1

2

Bogsan Agsan Agsan

Points in bulk

Balance of Deposits

48,725

Gap evidence 10-2

3

Balance of Deposits

12,969,276

4

Balance of Deposits

67,507

5

Onnuri Credit Union

Self-reliance Deposit

23,604,514

Gap evidence 10-3

6

SCrd Bank

Balance of Deposits

529,013

Gap evidence 10-4

7

KEB Bank

Balance of Deposits

3,400,000

Gap evidence 10-5

8

Balance of Deposits

127,375

9

Bank of Korea

Balance of Deposits

281,897

Gap evidence 10-6

10

Balance of Deposits

1,270,000

42,624,328

Petty Property

1

Debt for Establishment of Mortgage

(Security Loans)

Three parcels of land and buildings (the real estate in this case) other than OOO-O on the part of OOO in Jeonbuk-si OO-O

100,000,000

Gap evidence 11-1

2

Debt for Establishment of Mortgage

(Security Loans)

OO also OOO-O land and buildings

680,000,000

Gap evidence 11-2

3

Enterprise Driving General Funds Loans

9,583,350

Gap evidence 11-3

4

Tax Liabilities

223,322,770

A No. 5

1,012,906,120

4. Bad faith of the defendant

Since the beneficiary's bad faith is presumed, the beneficiary has the burden of proof (Supreme Court Decision 2006Da5710 Decided April 14, 2006 and Supreme Court Decision 2004Da61280 Decided July 4, 2006, etc.).

It is reasonable to view that the Defendant, as the wife of Nonparty A, was aware of the Defendant’s act of selling and selling the instant real estate in excess of the debt, that it deepens the status of Nonparty A’s debt excess, and that Nonparty A knew the Defendant’s intention to dispose of the instant real estate in order to evade tax liability under the status of excess of the debt.

5. The date on which he becomes aware of a fraudulent act;

On May 25, 2017, the Plaintiff: (a) printed out the property status list on May 25, 2017 to review the property status of Nonparty A to adjust national taxes in arrears; (b) confirmed the fact that Nonparty A sold the instant real estate to the Defendant; (c) requested Nonparty A to inspect Nonparty A’s marital relation certificate and the transcript of Nonparty A and Defendant A’s specifications; and (d) confirmed that the Defendant was Nonparty A’s wife’s wife on May 26, 2017 (see, e.g., the evidence No. 7A marriage certificate, the transcript of Nonparty A, and the transcript No. 8 A, a certified copy of Nonparty A’s evidence No. 8).

6. Scope of revocation and methods of reinstatement.

In light of the above facts, the sales contract of this case between Non-Party A and the defendant on March 14, 2016, which was made between Non-Party A and the defendant, shall be revoked, and the defendant shall be obligated to implement the procedure for the cancellation of registration of cancellation of ownership transfer on the real estate of this case, the ownership of which was transferred under the name of the defendant, as

7. Conclusion

As above, the instant real estate sales contract concluded between Defendant A and Nonparty A constitutes a fraudulent act with the knowledge that it would prejudice the obligee, and the Defendant also should be deemed to have been aware of such fact. As such, the Plaintiff entered into the instant claim in order to cancel the sales contract concluded on March 14, 2016 between the Defendant and Nonparty A with respect to the real estate stated in the separate sheet, such as the purport of the claim, and to seek the fulfillment of the obligation to cancel the ownership transfer registration due to restitution.