by donation of money to the spouse to be in excess of liability, and constitutes a fraudulent act.

It is presumed that a fraudulent act constitutes a fraudulent act because it is presumed that the debtor and beneficiary are in excess of the liability by donation of money to the spouse, and that the restitution should be made by means of equivalent compensation, considering that the object of a fraudulent act is impossible or difficult to return originals in money.

Article 30 of the National Tax Collection Act

201Aband 7103 Revocation of Fraudulent Act

Korea

Song AA

May 23, 2012

August 22, 2012

1. The contract on donation of KRW 000,00, which was concluded on February 9, 2010 between the defendant and the LeeB shall be revoked within the limit of KRW 000.

2. The defendant shall pay to the plaintiff 00 won and 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.

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, and are described in the evidence A to 5 (including each number, if the parties have different numbers), and the whole purport of the pleading is visible, and the following facts can be recognized:

(a) a sales contract and imposition of capital gains tax between thisB and DistrictCC;

(1) On April 16, 2005, this B entered into a sales contract with the LandCC to sell 00 m25,591 m2 (hereinafter “the instant real estate”) of the OO-ri 00 m25,591 m2 (hereinafter “the instant sales contract”) at 00 m20 m2 (hereinafter “the instant sales contract”) and received 000 m2 per the contract date, and 00 m2 from the LandCC on April 18, 2005.

(2) On December 1, 2009, the Daejeon District Court issued a tax disposition on December 31, 2009 with regard to the transfer of the instant real estate to the DaCC as above by the due date for payment on December 31, 2009, based on January 3, 2008, which was the date of the receipt of the transfer registration of ownership recorded in the initial register. However, the Seo Daejeon District Court issued a tax disposition on August 31, 2010 by stating that the date of the conclusion of the actual sales contract is different from the date of the receipt of the transfer registration of ownership as a result of a field investigation related to the suspicion of real estate speculation, and again revoked the previous imposition of transfer income tax and imposed a tax disposition on June 21, 2005, which was based on the date of the receipt of the transfer registration of ownership as of June 21, 2005.

(3) AB is not in arrears with an amount equivalent to KRW 000,000, out of the capital gains tax imposed as above until now (hereinafter “the capital gains tax of this case”).

(b) donations to the Defendant of thisB;

On the other hand, on February 9, 2010, B took out a loan of KRW 000,000 from the deposit on its own account as collateral, and then remitted KRW 000 to the Defendant’s side deposit account, the spouse, and then donated (hereinafter “the instant donation”).

2. Determination on this safety defense

A. Summary of the defendant's assertion

From January 2010, the Plaintiff investigated the arrears of BB through the field investigation process of transfer income tax in connection with the suspicion of real estate speculation on the instant real estate, and in particular, on March 11, 2010, requested the NACF to collect the seized claim and to cancel the attachment of the seized claim against the financial account of BB. Therefore, on February 9, 2010 on which the date of the instant donation occurred or late March 11, 2010, the Plaintiff was aware that the instant donation against the Defendant of BB constituted fraudulent act around March 11, 2010. The instant lawsuit was filed on July 4, 2011 after the lapse of the exclusion period of one year thereafter.

B. Determination

The "date when the creditor, who is the starting point of the exclusion period in the exercise of the creditor's right of revocation, becomes aware of the creditor's fraudulent act, i.e., the date when the creditor becomes aware of the fact that the debtor had committed a fraudulent act while knowing that the creditor would prejudice the creditor. Thus, it is insufficient to simply say that the legal act was prejudicial to the creditor, and that the legal act was not sufficient to satisfy the creditor's joint security, or that the joint security already adequate for the creditor's failure to meet the creditor's entire claims, and further, it is necessary to know that the debtor had the intent to cause harm to the debtor (see, e.g., Supreme Court Decision 2007Da8088, Mar. 31, 2008).

3. Judgment on the merits

A. Formation of preserved claims

(1) In principle, a claim protected by a creditor's right of revocation needs to be protected prior to the occurrence of a fraudulent act, but it is highly probable that the claim has already been established at the time of the fraudulent act, and that the claim should be established in the near future in the near future because it is realistic, and that the claim is established in the near future, the claim may also be subject to the creditor's right of revocation. This legal principle applies to a tax claim as it is. Therefore, even if a tax claim has not been imposed due to a specific decision of correction at the time of the fraudulent act, the basic legal relationship as to the occurrence of the tax claim has occurred, such as a series of procedures such as a decision of correction, which is highly probable that the right may be established in the near future, and such tax claim may be a prior claim of the creditor. In addition, when the creditor exercises the right of revocation, more than the new claim amount, and more than 20 years can not be cancelled, and more than 20 years can be included in the amount of interest and increased additional charges provided for in Article 21-27 of the National Tax Collection Act.

(2) In the instant case, the above legal doctrine is applied, and the BB had already been abstractly established by selling the instant real estate to CC on April 16, 2005, and this constitutes the basic legal relationship of the instant capital gains tax imposed thereafter, and as seen earlier, the Plaintiff, including the Plaintiff, upon conducting a field investigation around August 2010, specified the date of concluding a contract for the actual transaction of the instant real estate, newly setting the year to which it belongs, and subsequently setting the new imposition of the capital gains tax of this case on December 1, 2009, upon cancelling the imposition of the capital gains tax of this case as of December 1, 2009, the Plaintiff’s claim for the capital gains tax of this case including the additional dues, etc., based on the above basic legal relationship, was highly probable as to the fact that the taxation disposition of the capital gains tax of this case became final and conclusive in the future as of December 1, 2009.

B. Whether the fraudulent act was established

(1) On February 9, 2010, the Defendant, who is the spouse, remitted KRW 000 to the Defendant’s financial account under the name of the Defendant, as seen earlier. Accordingly, the Defendant asserted that the Plaintiff was a donation for the purpose of division of the married couple’s joint property, but there is no other evidence that the B was a divorce with the Defendant on February 9, 2010 at the time of the instant donation, and in full view of the overall purport of the entries and arguments in the evidence No. 9, it can be known that the B was not only at the time of the instant donation, but also at the time of the agreement with the Defendant, and it cannot be deemed that the instant donation was made as a division of property following divorce. Accordingly, the Defendant’s above assertion is without merit.

(2) Evaluation of whether this case’s gift exceeds debt B and active property at the time of the donation

① According to the purport of Gap evidence No. 16 and the entire arguments, and at the time of the donation of this case, the gift of this case was made with active property of this case at the time of the donation of this case, the deposit amounting to KRW 000, 000, 000, and 000,000,000,000,000,000.

(2) On December 1, 2009, the defendant shall be returned following the cancellation of the disposition imposing capital gains tax on December 1, 2009.

the right to return KRW 000,00 in the name of resident tax, to the head of the Seongbuk-gu Daejeon Metropolitan City; and

(C) the 000 won refund claims in the name of the Director of the Western Tax Office of the BB, and

The claim claim amounting to KRW 000 according to the decision on the recommendation for settlement made by BB with respect to the branchCC should also be included in the B's active property.

First of all, it is premised on the fact that this part of the claim was returned to thisB on August 20, 2010, because this part of this part is based on the premise that this part of this BB had the obligation to return 00 won of resident tax due to erroneous or erroneous payment in accordance with the disposition of capital gains tax as of December 1, 2009 against the head of the Sung-gu Daejeon Metropolitan City basin, and according to the entries in Gap evidence No. 15-1 through No. 15-4, and the amount of the above credit has already been returned to this B on August 20, 2

Next, according to the health stand, and evidence No. 11, the above (C) claims, and the above 00 won claims are already appropriated to pay the capital gains tax in accordance with the disposition of the capital gains tax in this case on August 11, 2010, and the defendant's assertion on this part is without merit.

Finally, in calculating the above-mentioned claims, the above-mentioned claims should be excluded from the co-security of claims, unless there are other special circumstances. If the assets are claims, it should be reasonably determined whether the claims are reliable and not, and if so, it should be included in the active property (Supreme Court Decision 2001Da32533 Decided October 12, 2001). And evidence No. 16-1 through No. 17, evidence No. 16-1 and evidence No. 17, and evidence No. 5, which can be known after considering the overall purport of each entry and pleading No. 17-1 and evidence No. 17. In other words, CC has almost the real estate which is the only property owned by it, and No. 2011 were under voluntary auction procedures around 200 and around 2011, and B had no prior priority over the claims of the above general creditors when considering the above voluntary auction procedure, and the remaining amount of the claims of the above real estate should not be applied to the creditors, and it should not be considered.

(B) Appraisal of small property

① In full view of the overall purport of entry and pleading of evidence No. 8, and at the time of the donation of this case, the small property of this case B is composed of KRW 000,000, and KRW 000,000, and KRW 000,000, and KRW 00,00,00, based on the disposition of transfer income tax of this case by the Plaintiff.

② On the other hand, the Defendant asserts that: (a) an additional tax of KRW 000,00, which was added due to the misrepresentation and non-payment theory in accordance with the instant disposition of capital gains tax; and (b) there was no intent to evade the collection of national tax to B; and (c) thus, it is unreasonable to impose tax. In a case where there are objective circumstances to mislead B as to any legal relationship or fact which is not subject to taxation, the question of whether it is subject to taxation can be identified can only be determined by accurately investigating the facts; and (d) it cannot be deemed that it would be apparent even if the defect is grave, and it cannot be deemed that the tax disposition is void automatically (see Supreme Court Decision 97Da3144, Jan. 23, 1998). Even if there was an illegal history that can be revoked, that taxation disposition is valid until it is lawfully revoked by the process of administrative action or executory force; and therefore, (e) the Defendant’s assertion that it is invalid at the time of the instant disposition cannot be seen as the Defendant’s allegation that it is invalid in civil procedure.

(C) Determination

Therefore, at the time of the donation in this case, this case's gift in this case's active property is KRW 000 and the passive property was transferred to the defendant with a total amount of KRW 000,000, and thus, the donation in this case is ultimately deemed to fall under a fraudulent act detrimental to general creditors such as the plaintiff. In addition, this case's gift in this case's transfer income tax is presumed to have been aware that at the time of the act was detrimental to other general creditors, and the defendant's bad faith is presumed to have been presumed to have been presumed to have been presumed to have been presumed to have been. For this reason, the defendant: (B) the defendant paid taxes in good faith as to the suspicion of real estate speculation related to the contract in this case's transfer income tax, and (2) the defendant was not aware that there was no intention to evade national tax collection or intentional intention; (3) the defendant also did not recognize that it would be prejudicial to other general creditors such as the plaintiff due to the occurrence of insolvency to the plaintiff in this case's gift in this case.

(c) Methods and scope of reinstatement;

As seen earlier, the Defendant’s act of remitting KRW 000 to the Plaintiff on February 9, 2010 constitutes a fraudulent act, and considering that the object of the said fraudulent act is either impossible or substantially difficult to return originals in money, the restoration to its original state shall be made by means of compensation for value (the Defendant’s act is not possible to specify the object of fraudulent act since the aforementioned KRW 00,00, which was transferred from B to his own Seocho Agricultural Deposit Account, has already been mixed with other deposit claims, making it impossible to specify the object of fraudulent act. However, if the value compensation is not the original return, not the original return, there is no room to specify the object of fraudulent act. Therefore, the Defendant’s above assertion is without merit. Accordingly, the Defendant’s rescission of the instant donation contract concluded between the Defendant and B and the Plaintiff, and the Plaintiff’s obligation to pay KRW 000 to the Plaintiff as compensation for value and damages for delay at the rate of 5% per annum as prescribed by the Civil Act from the following day of the final judgment of this case.

4. Conclusion

Then, the plaintiff's claim of this case is justified, and it is decided as citing it, and it is decided as ordered.