In case of donation of transferred property on several occasions, the requirements to establish a fraudulent act

When there are several property disposal acts, the principle is to judge whether each property is speculative or not, however, if there are special circumstances, it is to judge whether the passive property is speculative or not, and it is to be a fraudulent act only if the passive property exceeds positive property.

Article 30 of the National Tax Collection Act

1. In accordance with a claim modified in the trial of the political party, the contract of June 30, 2005 between the defendant and the business ethics and the contract of donation dated July 1, 2005 shall be revoked, respectively, and the contract of donation dated July 4, 2005 shall be revoked within the limit of KRW 99,062,90.

2. The defendant's appeal concerning the part of the claim for restitution is dismissed.

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

1. Purport of claim

The judgment as referred to in Paragraph (1) of this Article (the plaintiff sought revocation within the limit of KRW 249,062,90 with respect to each gift contract of June 30, 2005, which was concluded between the defendant and the commercial ethics at the first instance court, and July 4, 2005, and the contract of donation of June 30, 2005 and the contract of donation of July 1, 2005 at the court of the first instance was completely revoked and the contract of donation of July 4, 2005 was revised to seek revocation within the limit of KRW 99,062,990 with respect to the contract of donation of July 4, 2005) and the defendant shall pay to the plaintiff an amount of KRW 249,062,90 with an annual amount of KRW 5% with respect to the contract of donation of July 4, 2005 and the day after the day after the day after the decision became final and conclusive

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1.Basics

The following facts are not disputed between the parties, or acknowledged as Gap evidence Nos. 1 through 10, 12, and 13 (including additional numbers), and the whole purport of the pleadings.

(a) Sale of real estate;

상○덕은 2005.5.26. 김○우 및 조○애에게 그 소유의 서울 ○○구 ○○동 ○○○ ○○팰리스 ○○동 ○○○○호(이하'이 사건 부동산'이라 한다)를 매매대금 25억 원에 매도하고, 계약금 2억 원은 계약 당일 지급받고, 중도금 7억 원은 2005.6.25.에, 잔금 16억 원은 2005.7.25.에 각 지급받기로 약정하였으며, 김○우 및 조○애로부터 계약금 2억 원과 중도금 7억 원을 위 각 지급기일 무렵 수령하였다.

(b) Imposition of capital gains tax;

(1) Of the capital gains tax amounting to KRW 523,898,640 relating to the above sales contract, the business operator paid only KRW 263,898,640, and did not pay the remaining amount. The business operator did not pay the remaining amount to the business operator, and the business operator did so after deducting the tax amount already determined and notified as the due date on December 31, 2005 from the tax amount already determined and notified as KRW 292,938,890 (the tax payment date on December 31, 2005; the due date on December 31, 2005).

(2) In addition, ○○○ did not pay KRW 2,351,560 of the Comprehensive Real Estate Holding Tax for the year 2005 regarding the instant real estate (the date when the tax liability was established, June 1, 2005, and February 28, 2006).

(3) As of February 13, 2008 near the date of the closing of argument in the instant case, the details of arrears in the commercial morality are 288,984,800 won in total in the capital gains tax, and in the case of comprehensive real estate holding tax for fiscal year 2005, the total amount of principal tax and additional dues is 2,962,820 won in total as of September 620, 291.

(c) Donation by the debtor;

The business ethics, which was paid under the above sales contract, donated to the defendant the amount of KRW 100 million on June 30, 2005, KRW 50 million on July 1 of the same year, and KRW 170 million on July 4 of the same year (hereinafter referred to as "each gift contract of this case").

2. Determination

(a) Claims for preservation;

(1) Under Articles 21(1), 21(2), and 10(5) of the Framework Act on National Taxes, income tax, a national tax, is established upon the termination of the taxable period, by establishing each tax liability on the tax base date of comprehensive real estate holding tax (Article 3 of the Comprehensive Real Estate Holding Tax Act and Article 190 of the Local Tax Act).

(2) According to the above facts, although a claim for capital gains from the commercial morality was established after each of the instant gift contracts, there was a high probability of the fact that at the time of each of the instant gift contracts, there was a legal relationship which is the basis of establishing the relevant claim, and that the tax claim should be established based on the relevant legal relationship in the near future, as well as that of the fact that there was a high probability of the fact that the tax claim is established in the near future, and that the probability has not yet been realized, and thus, the claim for capital gains tax and comprehensive real estate holding

(3) In addition, the claim amount of the revocation creditor includes interest or delay damages to be incurred from the time of the fraudulent act to the time of closing argument in fact-finding proceedings, and such a legal principle also applies to the additional national tax, heavy-liability, and thus, the total amount of 291,947,620 won in arrears is the preserved claim of the obligee’s right of revocation.

B. Establishment of fraudulent act

(1) A series of actions

In principle, where a debtor has continuously performed several acts of disposal of property, it shall be determined based on whether each act causes insolvency. However, when there are special circumstances to deem such a series of acts as a single act, it shall be determined as a whole. In such a case, in determining whether there are such special circumstances, the other party to the disposition shall be identical, whether the disposition is close to time, whether the other party to the disposition has special relations with the other party, and whether the other party is the same as the other party’s motive or opportunity for the disposition (see, e.g., Supreme Court Decision 2005Da74900, Sept. 14, 2006).

According to the evidence adopted above, the parties to each of the instant gift contracts shall be deemed to have a special reason to believe that each of the instant gift acts is a series of acts in accordance with the same intent and a single act, in view of the following: (a) the parties to each of the instant gift contracts are the same facts as ○○ and the Defendant; (b) the date of the instant donation is close to her day through three days; and (c) ○○○ may recognize the fact that the Defendant was a leader; and (d) each of the instant gift acts was committed in the same motive or opportunity to transfer the money in their own account.

(2) Whether the debt exceeds the debt

(A) Evaluation of positive properties;

On June 30, 2005, the appraisal of the debtor's active property at the time of donation is as follows (the share account in the debtor's name is a share investment made by lending the defendant's name to the debtor's name, and thus, it shall be deemed the ○○c.

(1) A foreign exchange bank deposit claim of 348,618,336 won (before the withdrawal of money based on each gift contract of this case)

② According to the above sales contract, 1.6 billion won (the Defendant asserts that the sum of down payment and intermediate payment should also be included in active property in addition to KRW 1.6 billion among the purchase price claim of KRW 2.5 billion, but there is no evidence to prove that the debtor, as of June 30, 2005, holds the money received as down payment and intermediate payment in addition to the said deposit).

③ Seoul ○○○○-dong 80-○○-dong 28.8 square meters’ market price is KRW 65,300,000.

④ Seoul ○○○○○-gu ○○○○-dong 892-○○○ apartment ○○○○○○○ apartment ○○○○○○○○○○○○○○○○, ○○○○○○○○○○○, which deducts KRW 9,960,00 from the secured debt of KRW 19,750,00.

(5) Total amount of active property: 2,111,458,336 won.

(B) Appraisal of income and property

On June 30, 2005, the assessment of debtor's income and property at the time of donation is as follows:

① Transfer Income Tax of this case 292,938,890 won

② Comprehensive real estate holding tax in this case 2,351,560 won

③ The obligation to return deposit money for the lease on a deposit basis with respect to the instant real property KRW 1 billion

④ Total amount of KRW 760 million (240 million + KRW 520 million + KRW 520 million) of the secured debt of the right to collateral security established on the instant real property

⑤ Total amount of small-sized property: 2,055,290450 won

(C) in excess of obligations;

As seen earlier, ○○○○○’s active property at the time of June 30, 2005 was KRW 2,111,458,336, and 2,055,290,450,000,000 won, but ○○○○○’s active property (2,05,290,450 won) donated KRW 100,000,000 to the Defendant on the same day, and the negative property (2,05,290,450 won) exceeds active property (2,01,458,336 won). Since it was in excess of obligation until the closing of argument in this case, barring any special circumstance, the act of gifting ○○○○ constitutes a fraudulent act undermining other creditors, including the Plaintiff by reducing the liability that becomes a joint collateral of creditors, and thus, the virtue constitutes a fraudulent act under which ○○○ has no comprehensive real property tax and comprehensive real property tax until now, and the presumption of the Defendant’s intent as a beneficiary.

(c)

C. Judgment on the defendant's assertion

○○○○○ Co., Ltd. (hereinafter “Plaintiff”) was changed to ○○○○○ Co., Ltd. 19, Oct. 19, 2006, and its trade name was changed to ○○○○○○ Co., Ltd. on Jun. 8, 2007, hereinafter “Nonindicted Co. 2”) at the time of each gift agreement of this case. Nonparty 2 had a claim of KRW 35 million against the non-party Co., Ltd. with KRW 70 million on Nov. 17, 2005, and the above claim was winning on Nov. 17, 2005. Thus, each gift agreement of this case did not constitute a fraudulent act. Thus, the Defendant’s claim of KRW 200,000,000,000,000,000,000,000 won, and it cannot be seen that the above claim of KRW 130,000,00,000,00.

(d) Scope of cancellation and reinstatement;

The taxation claim of this case, including additional charges on the plaintiff's business ethics, shall be based on the facts that were close to the date of the closing of argument in the trial as seen earlier, and the scope of its cancellation and restitution shall be limited to the amount of the above taxation claim. However, as the plaintiff seeks, the contract for the donation of June 30, 2005 between the defendant and the business ethics and the contract for the donation of July 1, 2005 shall be revoked in its entirety, and the contract for the donation of July 4, 2005 shall be revoked and restored to its original state within the limit of KRW 99,062,90 (249,062,90 won that the plaintiff seeks, KRW 100,500,000).

3. Conclusion

Therefore, the contract of each gift between the defendant and the commercial ethics shall be revoked within the extent of the above recognition, and the defendant is obligated to pay to the plaintiff 249,062,90 won (10 million won + 50 million won + 99,062,90 won) and damages for delay at the rate of 5% per annum under the Civil Act from the day after the day when the judgment became final and conclusive to the day when the payment is complete. Thus, the plaintiff's claim in this case is justified, and the part of the revocation of fraudulent act in the judgment of the court of first instance shall be modified as above and the part of the claim for restitution shall be justified as the conclusion, so the defendant's appeal for this part shall be dismissed. It is so decided as per Disposition.