Changwon District Court Jinwon Branch 2010Kahap2513 ( October 20, 2011)

trust in the name of the depositor shall constitute a fraudulent act detrimental to the general creditor.

Since the small-sized property was not in excess of the obligation by transferring money to each account after making a nominal trust of deposit holders, it constitutes a fraudulent act detrimental to the general creditor.

(C)Revocation, etc. of fraudulent act by 201Na3544

Korea

Chapter AA

Changwon District Court Decision 2010Gahap2513 decided July 20, 2011

July 12, 2012

August 10, 2012

1.The judgment of the first instance shall be modified as follows:

A. The trust agreement in the name of each depositor entered in the separate sheet between the defendant KimB and the defendant KimB concerning the amount entered in the separate sheet shall be revoked within KRW 00.

B. The defendant shall pay to the plaintiff 215,305,00 won with 5% interest per annum from the day following the day this judgment became final to the day of complete payment.

2. All costs of the lawsuit shall be borne by the defendant.

Purport of claim

Each gift contract entered into on July 12, 2007, August 9, 2007, and December 5, 2007 between the defendant and KimB shall be cancelled within the limit of 000 won, and the defendant shall pay to the plaintiff 000 won with 5% interest per annum from the day following the date of confirmation of this judgment to the day of full payment. Preliminaryly, each deposit principal trust contract entered in the separate sheet between the defendant and KimB with respect to the amount entered in the separate sheet shall be cancelled within the limit of 215,305,00 won, and the defendant shall pay to the plaintiff 215,305,00 won and 5% interest per annum from the day after this judgment becomes final to the day of full payment (the plaintiff shall be entitled to additional claim at the preliminary trial, but the plaintiff shall be considered to have different rights to claim for monetary remittance or legal defense from the trust agreement to the day of full payment, and it shall not be viewed as one of the reasons to claim otherwise as a fraudulent act or defense.

Purport of appeal

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

1. Basic facts

A. On July 12, 2007, KimB sold to Gamb real estate (hereinafter “transfer real estate of this case”) of 000,000 OO2,000 1,398 m2, and 8 m398 m2 (hereinafter “the transfer real estate of this case”) at the time of Scheon-si, KimB, pursuant to the agreement, KRW 000 on the contract date, and KRW 000 on August 10, 2007, the remainder of KRW 000 was paid on September 11, 2007, and the ownership transfer registration was completed on the transferred real estate of this case. However, KimB did not report the transfer income tax under the Income Tax Act to Jinju, the competent tax office.

B. The director of the Jinju Tax Office issued to KimB a notice of correction of capital gains tax amounting to KRW 000 as of March 15, 2009, which was the due date for payment to KimB, and KimB did not pay it, and on September 10, 2010, which was the date of the filing of the instant lawsuit, the amount of taxes to be paid by KimB as of September 10, 201, including penalty tax, reaches KRW 00,000 including penalty

C. KimB deposited KRW 000,000, out of the purchase price received by the transfer of the instant transferred real estate, into the account of the Defendant, I as follows.

D. The date of opening each of the above accounts and the account items, and ① the above CC Bank account on July 12, 2007

Newly opened 'OOOOB P-101 for individuals of MFF, and 'B' deposited 00 won at the same time, and 'B bank account' deposited 'B' deposited '00 won at the same time, and 'B' deposited 00 won when the said account was opened on August 9, 2007, and 'B' deposited 'OBNPP II II 5', which was newly opened on August 9, 2007, and 'B' deposited 'OBNP II 5', and 'B' deposited 'BF II 5' account on December 4, 2007, and 'B' account opened on December 5, 2007.

E. The KimB used 00 won, such as the transfer of money to the Defendant’s respective accounts, debt repayment, and payment of real estate purchase price, and repair cost of the Mourel operated by himself.

[Grounds for Recognition: Facts without dispute, Gap evidence 1 through 18 (including branch numbers for those with virtual numbers), and Eul evidence 1 through 26, and the purport of the whole pleadings]

2. Judgment on the parties’ assertion

A. The plaintiff's assertion

From July 12, 2007 to December 5, 2007, KimB deposited KRW 000 into the account of the defendant who is the defendant in excess of the obligation, and even if the money was given to the defendant, it constitutes a fraudulent act, and even if not, it constitutes a fraudulent act, it constitutes a trust agreement with the deposit owner. Accordingly, among them, the above donation agreement or deposit owner trust agreement of KimB and the defendant should be cancelled within the range of KRW 00,000 other than the remainder used by KimB, and the above KRW 00 should be returned to KimB, but since the defendant consumeds it, the defendant has the obligation to return KRW 00 to the plaintiff with the return of value.

B. Defendant’s assertion

B KimB deposited KRW 000 from July 12, 2007 to December 5, 2007 to the Defendant’s account is not a donation to the Defendant, but only the use of KimB by the Defendant’s account. Therefore, KimB did not commit a fraudulent act. In addition, at the time KimB transferred the said money to the Defendant’s account, KimB was not in excess of the obligation, and the Defendant was bona fide.

C. Determination

1) Whether it is a gift or trust under the name of the depositor

A) A gift contract is a contract established by either of the parties expressing the other party’s intent to confer property free of charge and the other party’s consent thereto.

B) On July 12, 207, Nonparty B used 00 won to the above account under the name of cB, and deposited 00 won to the above account under the name of cB, and on August 9, 2007, transferred 00 won to the Defendant’s new bank account under the name of b.00, and on December 5, 2007, transferred 00 won to the Defendant’s new bank account under the name of 00,000 won to 30,000,000 won to 20,000,000 won to 7,000,000,000 won to the above account under the name of 2,00,000,000 won to 7,000,000,000 won to 0,000,000 won to the above account under the name of 2,00,000 won to 0,000,000 won.

2) Whether a fraudulent act of title trust with deposit holders was committed

A) It is reasonable to interpret that a deposit contract is concluded through a real name verification procedure under the Act on Real Name Financial Transactions and Confidentiality and the fact of such contract is clearly indicated in the account statement, etc., and that the person holding the deposit title or the actor or the intent of the financial institution acting for him/her as the deposit owner in the deposit contract is trying to appoint the person holding the deposit title as the party to the deposit contract (see, e.g., Supreme Court en banc Decision 2008Da45828, Mar. 19, 2009). While KimB and the defendant constitute a trust contract in the name of the deposit owner for each of the above accounts, and the contributor KimB may request the defendant to return the money deposited in the above accounts in the external relationship between the financial institution or the third party, as long as the trust in the name of the deposit owner is not terminated, the payment of money deposited in each of the above accounts in the name of the defendant with claims against KimB and the defendant may not be sought or seized. Therefore, since KimB and the above account owner's assets among the above parties are subject to the cancellation of the trust agreement.

B) Formation of preserved claims

It is highly probable that claims protected by obligee's right of revocation have arisen prior to the commission of acts that could be viewed as fraudulent acts in principle, and that claims have already been established at the time of the fraudulent act, and that are based on the existing legal relations in the near future, and that claims have been established in the near future, and that claims may also become preserved claims of obligee's right of revocation in the near future. Here, "legal relations which form the basis for establishing claims" in this context are not limited to legal relations under an agreement between the parties, but should be widely included in quasi-legal relations or facts that are probable to establish claims (see Supreme Court Decision 2002Da42957, Nov. 8, 2002). Since Plaintiff's taxation claims against KimB were finalized by the decision of revision of capital gains tax on March 15, 2009, and trust of deposit owners in each of the above accounts were made before that date, and that taxation claims in this case were highly probable to have accrued from the transfer of real estate in each of the above accounts.

C) Whether a fraudulent act was committed

A fraudulent act means an act that makes it impossible for the creditors to fully satisfy their claims due to a decrease in the assets by the debtor's act of disposal of assets, or a lack of joint collateral already available to the above account (Supreme Court Decision 97Da57320 Decided May 12, 1998). In principle, if the debtor continuously engages in several disposal of assets, it is necessary to judge whether each act causes insolvency by each act. However, if there are special circumstances to see that the series of such acts is one act, it is to judge whether the other party to the disposition is fraudulent as a whole, and if so, it is time to determine whether there is such special circumstance, and if there are more than 0 deposits in the name of the debtor, it is more than 0,000 won, and more than 20,000 won, and more than 20,000 won, and more than 20,000 won, and more than 20,000 won, and more than 3,000 won, in the name of each of the defendant bank.

D) Whether it is bona fide or bona fide

The defendant asserts that he is a bona fide beneficiary, but there is no evidence to recognize it.

(e)smallity;

If so, the trust contract in the name of deposit holders for each of the accounts of this case concluded between KimB and the defendant is considered as fraudulent act, and as the plaintiff seeks, the defendant is obliged to cancel within the scope of 000 won and restore the original status, and the defendant is obliged to pay to the plaintiff delayed damages calculated at the rate of 5% per annum as stipulated in the Civil Act from the day following the day this judgment became final and conclusive to the day of complete payment.

3. Conclusion

Therefore, the judgment of the court of first instance is justifiable for the part ordering the revocation of fraudulent act as the object of fraudulent act and its reinstatement, but it is erroneous for the court to determine the trust in the name of the depositor as a gift, and it is so decided as per Disposition by the court of first instance.