Revocation of Fraudulent Act

Even after the donation of this case, it is difficult to readily conclude that the deceased exceeded his obligation due to the donation of this case, and there is no evidence to support this, so the donation of this case cannot be deemed as a fraudulent act.

Article 30 of the National Tax Collection Act: Revocation and Restoration of Fraudulent Act

Seoul Western District Court 2016Kahap35451 Revocation of Fraudulent Act

Korea

both BB and 3 others

September 7, 2017

October 12, 2017

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

1. A. A. Revocation of a gift agreement of KRW 50,000,000 entered into on August 18, 201 between the network both A and the Defendant YangB.

1. B. Defendant YangB shall pay to the Plaintiff 50,000,000 won with an annual interest of 5% per annum from the day following the day when the instant judgment became final and conclusive to the day of complete payment.

2. A. A. Revocation of a gift agreement of KRW 150,000,000 entered into on August 18, 201 between the Network Yang-A and the Defendant Yang-CC.

1. B. Defendant YangCC shall pay to the Plaintiff 150,000,000 won with an annual interest of 5% per annum from the day following the day when the instant judgment became final and conclusive to the day of complete payment.

3. A. A. Revocation of a gift agreement of KRW 70,000,000 entered into on August 18, 201 between the net YangA and Defendant KimA.

1. B. Defendant KimA shall pay to the Plaintiff 70 million won and 5% interest per annum from the day following the day when the judgment of this case became final to the day of complete payment.

4. (a) The gift agreement of KRW 250,000,000 entered into on August 18, 201 between the net YangA and the Defendant Park Dong shall be revoked to the extent of KRW 20,000,000.

1. B. Defendant Park Jong-A shall pay to the Plaintiff KRW 20,000,000 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.

1. Facts of recognition;

(a) Disposition of real estate transactions and capital gains tax by the net YangA;

1) On June 3, 2011, the net YangA (hereinafter referred to as the “the network”) sold to GaB a purchase price of KRW 950,00,000,00 for KRW 427-101, 268, 035 (hereinafter referred to as “the instant real property”), which is owned by the deceased, at KRW 950,00,000, and completed the registration of ownership transfer in the future of GaB on August 18, 2011.

2) ParkB shall pay for the purchase price of the instant real estate in KRW 20,00,000, June 3, 2011, and June 7, 2011.

75,00,000 won, 100,000,000 on June 20, 2011, shall be the account in the name of the deceased (Account Number:

102-04-139744) deposited in 1002-04, and paid 755,000,000 won to the Deceased on August 18, 201.

3) On July 10, 2014, the head of Seodaemun District Tax Office under the Plaintiff’s control imposed capital gains tax of KRW 221,503,380 (hereinafter “capital gains tax of this case”) for the transfer of the instant real estate to the Deceased in relation to the transfer of the instant real estate, and around July 25, 2016, total delinquent taxes, including additional dues, including KRW 289,283,40,00, including additional dues, reach KRW 289,283,40.

B. Donation to the Defendants by the Deceased

1) Defendant ParkA is the deceased’s spouse. Defendant YangB and YangCC are the deceased’s children, and Defendant KimA is the deceased’s spouse as the deceased’s spouse.

2) On August 18, 201, the Deceased donated KRW 520 million out of the balance of the above purchase price of KRW 755,000,000,000, to the Defendants by depositing the said amount into the account in the name of the Defendants as indicated below (hereinafter “the instant donation”).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 11, purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

As a result of the deceased’s donation of this case, the deceased was in excess of his obligation, and the donation of this case constitutes a fraudulent act detrimental to the plaintiff’s creditor, and thus revoked, and seek reimbursement of the amount of the donation of this case against the Defendants, who are beneficiaries, as such restitution.

B. The Defendants

The instant donation was made on August 18, 201. As such, the instant transfer income tax claim was established on August 31, 201, and thus, the instant transfer income tax claim cannot be deemed a preserved claim for the obligee’s right of revocation. On August 18, 2011, the Deceased received the remainder of KRW 750 million in the purchase price of the instant real estate on August 18, 201 and received KRW 520 million, which was KRW 50 million, from which he/she had the remainder of KRW 235 million in the purchase price of the instant real estate to the Defendants, and thus, the instant donation does not constitute a fraudulent act.

3. Determination

(a)the existence of preserved claims;

Although it is required that a claim that can be protected by the obligee’s right of revocation has arisen prior to the commission of an act that could be viewed as a fraudulent act in principle, there is a high probability that at the time of the fraudulent act, there has already been legal relations that would be the basis for the formation of the claim, and that the claim would be established in the near future, and where a claim has been created as a result of the realization of the possibility in the near future, the claim may also become a preserved claim of the obligee’s right of revocation in the near future. Such legal principles apply to a claim for taxation, even if a claim has not yet been established at the time of a fraudulent act, where a legal relationship that serves as the basis for the establishment of the claim was created, and where a claim was established specifically through the procedure of taxation such as a high probability of establishing the claim in the near future.

In addition, when a creditor exercises his/her right of revocation, he/she cannot exercise his/her right of revocation in excess of his/her own claim amount in principle, and at this time, the creditor's claim amount includes interest or delay damages incurred after the fraudulent act and the time of closing argument in fact-finding proceedings. Meanwhile, the additional dues under Article 21 (1) and (2) of the National Tax Collection Act are the kind of incidental tax imposed in the meaning of interest on unpaid portion if national taxes are not paid by the due date, and if national taxes are not paid by the due date without the due date of payment without the due date of payment by the due date of payment by the due date of payment by the due date, the amount naturally accrued pursuant to Article 21 (1) and (2) of the same Act and the amount thereof is determined. Therefore, as long as the transfer income tax claim is recognized as the preserved right of the obligee's right of revocation, the amount of

On August 18, 201, the deceased transferred the instant real estate on August 18, 201, which was around the donation date of this case, and the liability to pay the transfer income tax of this case was established abstractly, and thus the legal relationship that forms the basis for the creation of the transfer income tax of this case has already occurred. Accordingly, it may be highly probable that the transfer income tax of this case was established. In fact, the head of Seodaemun-gu District Tax Office imposed the transfer income tax of this case on the deceased on July 10, 2014, and recognized as above, the transfer income tax of this case shall be the preserved claim of the obligee’s right of revocation.

B. Whether the fraudulent act was established

In order for a debtor to become a fraudulent act, the act of disposal of the debtor's property causes a decrease in the debtor's whole property and in short of the joint security of claims, namely, the debtor's passive property should be more than active property (see, e.g., Supreme Court Decision 2004Da58963, Jan. 28, 2005). In addition, the creditor who claims that the legal act of the debtor is a fraudulent act and the debtor's claim for revocation is not only the existence of the preserved claim and the debtor's legal act, but also the fact that the debtor has caused or deepened insolvency due to the legal act, and that the debtor's intent to commit a fraudulent act, etc. should be specifically asserted and proved (see, e.g., Supreme Court Decision 2002Da59092, Apr. 23, 2004)

According to the above evidence and the court's response to the order to submit financial transaction information to the Seoul Agricultural Cooperative, the deceased's active property at the time of August 18, 201, 200 won 235,000,000 won (=5,000,000 - 520,000,000 won - 520,000,000 won - 30,000,000 won, after the deceased's bank account (Account No. 1002-13974) balance 3,916 won, and the deceased's account in the name of the deceased (Account No.10126-26,0296) 6,023,07,000 won as the remainder of the purchase price of the real property of this case on the same day, and there is no other evidence to acknowledge that the gift property of this case was more than 30,000,0000 won.

이에 대하여 원고는, 망인이 박AA로부터 받은 이 사건 부동산의 매매대금 잔금 중 망인 명의의 서서울농협계좌(계좌번호: 353-XXXX-0489-33, 353-2671-XXXX-83)에 입금된 5,000만 원을 제외한 부분은 망인의 적극재산에 포함되지 않는다고 주장하나, 망인이 2011. 8. 18. 박AA로부터 이 사건 부동산의 매매대금 잔금 755,000,000원을 받아 같은 날 그 중 520,000,000원을 피고들에게 증여한 사실은 앞서 인정한 바와 같고, 이 법원의 기업은행에 대한 금융거래정보 회신결과에 의하면, 망인은 2011. 8. 22. 이 사건 부동산 매매잔금으로 받은 1억 원의 수표(수표번호: 07514XXX)를 우리은행에 지급제시한 사실을 인정할 수 있는바, 최소한 망인은 이 사건 증여일 무렵에는 이 사건 부동산 매매 잔금 중 나머지 235,000,000원을 보유하였던 것으로 보이고, 이와 달리 망인이 이 사건 증여 전에 위 금원을 이미 소비하는 등으로 보유하지 않고 있어 이사건 증여로 채무초과가 되었다고 인정할 증거가 없으므로, 원고의 위 주장은 이유 없다.

4. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed in its entirety as it is without merit. It is so decided as per Disposition.