Suwon District Court support 2012 Gohap20017 ( October 18, 2012)

In calculating active property, property which cannot play a role as joint security for claims because it has no real property value, except in extenuating circumstances.

Considering the fact that it is reasonable to deem that there was a circumstance that it is difficult to receive the above claims against EEM sales by the delinquent corporation, such claims cannot be included in active property of the delinquent corporation, and that the delinquent corporation appears to have no reason to pay the money to ChoB, unlike the donation, it is reasonable to deem that the delinquent corporation's act of paying the money to ChoB constitutes gift and constitutes fraudulent act.

2012Na62730 Revocation of Fraudulent Act

Korea

KimA

Suwon District Court Decision 2012Gahap20017 Decided July 18, 2012

July 11, 2013

August 22, 2013

1. Revocation of a judgment of the first instance;

2. The plaintiff's primary claim is dismissed.

3. The plaintiff's preliminary claim added at the trial.

A. Revocation of an OOO agreement entered into on March 7, 201 between SectionB and CCC is revoked.

B. The defendant shall pay the plaintiff 0% interest per annum to the plaintiff at the rate of 5% from the day following the day this judgment became final and conclusive to the day of complete payment.

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

1. Purport of claim

A. The primary purport of the claim

1) The gift agreement concluded on April 8, 201 between the Defendant and CCC is revoked.

2) The defendant shall pay to the plaintiff 00% interest per annum with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

B. Preliminary purport of the claim (the plaintiff added to the preliminary purport of the claim at the trial)

Paragraph (3) shall apply.

2. Purport of appeal

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

1. Basic facts

“A. The Plaintiff’s taxation claim against CCC was notified on March 8, 201 that CCC (hereinafter “CCC”) shall pay value-added tax for KRW OO (the due date, Dec. 31, 2010, and the due date, Apr. 15, 2011, the establishment of the tax liability) pursuant to the resolution on the correction of value-added tax for the second period of two years, 2010, but CCC did not pay the value-added tax until the closing of argument in the trial. The above value-added tax and additional tax are total OOO (the base date, Jan. 4, 2012; hereinafter “value-added tax”). (b) The amount of money paid to CCC’s ChoB.

1) On February 18, 201, 208, CCC received a refund of the national tax refund OOO as a claim for correction of value-added tax on the first-year period from January 2008 to January 201 (revision due to a decrease in sales due to termination of a contract during the taxable period from January 2008 to January 1, 201) from one bank (Account Number: O-OO-OO-OOOOOOOOO) in its name.

2) On March 7, 2011, CCC withdrawn OOOOs from the account of the above Han Bank from 11 cashier’s checks (for example, five OOs won and six OOs won at face value) and paid them to CCC co-representative director.

(c)payment of money to the Defendant by SectionB;

On April 8, 2011, ChoB paid to the Defendant four cashier's checks ( four OOOO-O-OO-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

(d) A new apartment construction project, etc. of the CCC;

"1) On December 2007, 2007, CCC has entered into a construction contract for the instant project with the EE Automobile Sales Co., Ltd. (hereinafter referred to as the “EE Automobile Sales Co., Ltd.) (hereinafter referred to as the “instant contract”) while CCC failed to pay the construction cost under the instant contract due to the deterioration of management due to the above apartment unsold, etc. (hereinafter referred to as “2) on March 19, 2010, while CCC failed to pay the construction cost under the instant contract due to the deterioration of management by the above apartment unsold housing unsold, etc. (hereinafter referred to as “instant settlement agreement”). The main contents of the agreement are as follows, Article 1(B)(Liability of B).

BB shall faithfully implement the following matters as a contractor and owner of the project after the conclusion of this Agreement:

1) Issuance of tax invoices in the name of BB following the sale and cancellation re-sale of apartment and commercial buildings;

(ii) applications for extension of the period of time to the National Bank PF lines (ABCP) and part payments and cooperation therein;

(iii) consent to re-sale on the terms and conditions presented by FF Motor Vehicle Sales at the time of unsold parcels and cancellation households;

(iv) application for approval of use and implementation of and cooperation in the work relating thereto;

(v) the implementation of the BB’s business relating to the preservation registration;

(vi) conclusion of contracts (other than cost-bearing) and issuance of tax invoices with the exercise of sale units;

8) Conclusion of a security trust upon completion of the preservation registration.

9) Following the conclusion of this Agreement, the FF Motor Vehicle Sales's consent to provide BB's employee identification cards (including 10 copies of a certificate of seal imprint, additional provision, and if necessary later) for the business progress until the immediately affixed seal and the final settlement of the business account at the time of request for the BB's official seal imprint for the business progress.

10) Performance of the operations of BB under other construction contracts and loan agreements;

(xi)proactive cooperate in notarial procedures upon the conclusion of this Agreement;

Article 2(Liability for FF Motor Vehicle Sales)

The FF Motor Vehicle Sales shall faithfully implement the following matters as the contractor of the Project after the conclusion of this Agreement:

(i)the cost-bearing for the shortage of project costs;

(ii)the selection and placement of sales agents, such as the sale of buildings in units, the management of contractors, and the occupancy management;

(iii)the implementation of, and the cooperation in, the new project approval and any related work;

(iv)the performance of the FF Motor Vehicle Sales operations under other construction contracts and loan agreements;

(v)proactive cooperate in notarial procedures upon the conclusion of this Agreement;

Article 3 (Management of Value-Added Tax)

1) BB shall deposit an OOO (OOO) out of value-added taxes refunded by the time of the preparation of this Agreement into the Project Operation Account (National Bank) at the same time as this Agreement is concluded, and the amount shall be used as expenses (the purchase balance of state-owned land, the amount borne by sewage burden, etc.) incurred in the Project.

(ii)The report of value-added tax arising in connection with the project after the conclusion of this Agreement with respect to the obligation to report and pay value-added tax held by BB on the project shall be made BB, and the payment to BB shall be made by FF car sales when BB requests the FF car sales to pay the value-added tax together with the documentary evidence of value-added tax.

3) BB shall take measures to report immediately after the conclusion of this Agreement to the tax office having jurisdiction over the seat of BB so that all of the value-added taxes refunded after the conclusion of this Agreement can be deposited into the business operation account.

Article 4 (Agreement)

1) BB and FF Motor Vehicle Sales shall be conducted in good faith upon the conclusion of this Agreement, and FF Motor Vehicle Sales shall recognize the amount of value-added tax (OOO) already refunded by BB except the OOO referred to in paragraph 1 of Article III as the proceeds of the business of BB, with the original CLR that B shall implement the contents of this Agreement on a good faith basis.

2) BB is unable to claim any proceeds from the project other than those in paragraph 1, and FF Motor Vehicle Sales will take charge of substantial progress of the project, such as execution and sale of funds, for the completion of the project.

[Reasons for Recognition] In the absence of dispute, Gap evidence 1, 2, Gap evidence 3-2, Gap evidence 5, Gap evidence 6-2, Eul evidence 1, 3, 8, 34, part of Eul evidence 32, and the purport of the whole pleadings

2. Judgment as to the main claim

The Plaintiff sought the cancellation of the above donation contract and the recovery therefrom under the premise that CCC donated OOOO won to the Defendant. However, CCC withdrawn OOO won and paid it to the MediationB. Among them, the fact that CCC paid OOO won to the Defendant is recognized in the above facts, and therefore, the Plaintiff’s primary claim based on the other facts is without merit, as it is acknowledged in the above facts.

3. Judgment on the conjunctive claim

(a)the existence of preserved claims;

1) Determination

According to the above facts, the value-added tax claim in this case is a preserved claim that can exercise the creditor's right to revoke with respect to the payment of money to the ChoB of the CCC on December 31, 2010.

2) The defendant's assertion and judgment

A) Defendant’s assertion

(1) According to the instant settlement agreement, CCC transferred all rights under the instant project to EE vehicle sales, and recognized OOO as business revenue. The value-added tax imposed in relation to the instant project after the instant settlement agreement was determined to be paid by EE vehicle sales. According to the aforementioned agreement, around October 2010, CCC transferred the apartment housing unsold households in the instant project to FF, etc., and received full transfer proceeds, including value-added tax, from EE vehicle sales. Accordingly, the instant liability to pay value-added tax is in the EE vehicle sales.

(2) Article 41 of the Framework Act on National Taxes provides that if the business is transferred or acquired and the business is insufficient to cover national taxes, additional dues and expenses for disposition on default on the business for which the transferor's tax liability becomes final prior to the date of transfer as the transferor's property, the transferee of the business prescribed by Presidential Decree shall be liable to pay taxes to the extent of the value of the transferee's property for the shortage. However, since CCC's transfer of all business rights to the EEM constitutes "where the business is transferred or acquired under Article 41 of the Framework Act on National Taxes", the obligation to pay the value-added

(1) On December 2007, the CCC, which carried out the instant business, entered into the instant contract with EE Motor Vehicle Sales, and CCC and EE Motor Vehicle Sales, recognize the proceeds from the business of the CCC through the instant settlement agreement, and thereafter, EE Motor Vehicle Sales is in charge of funding, sales, approval of business, etc., and CCC determined that it will take charge of the issuance of tax invoices as the owner of the instant business, the consent and cooperation in the business carried out by EE Motor Sales, the application for approval of use, and the registration of preservation. The report of value-added tax arising out of the instant business shall be made by CCC, but if CCC requests payment along with evidentiary documents, the payment of EE Motor Sales shall be made. In addition, in addition to each of the arguments set forth in No. 10 and No. 31, CCC entered into the instant contract with AO 20GH28GH20, which includes the PE284GH20, 2010, which is included in the sale agreement with the above PE-10G.

However, the following circumstances revealed by the facts acknowledged earlier, namely, CCC appears to have maintained its position as a project implementer and owner after the instant settlement agreement, and the agreement on value-added tax in the instant settlement agreement appears to have been merely the purpose of actual performance of payment when CCC requests payment between CCC and EE vehicle sales. Thus, a legal taxpayer is deemed to be CCC, and it is difficult to view that the said recognition alone does not constitute the duty to pay value-added tax in the instant case.

(2) Furthermore, we examine whether EEM is subject to secondary tax liability. Article 22 of the Enforcement Decree of the Framework Act on National Taxes provides that the transferee of the business as prescribed by the Framework Act on National Taxes (excluding the rights related to outstanding amounts) and all obligations (excluding obligations related to unpaid amounts) for each workplace shall be the person who comprehensively succeeds to all the rights and obligations relating to the business of this case. Thus, as to whether CCC and EEM sales comprehensively succeed to all the rights and obligations relating to the business of this case, health was first conducted between CCC and EEM, although the instant settlement agreement intended to perform major duties related to the business of this case, although CCC had agreed to perform the instant settlement agreement, it is recognized as above, it is difficult to view that all rights and obligations relating to the business of this case were comprehensively succeeded to the EEM. Accordingly, the Defendant’s argument is without merit.

As claimed by the Defendant, even if EE Motor Vehicle Sales bears secondary tax liability as claimed by the Defendant, the CCC’s tax liability, the original taxpayer, is not extinguished. Therefore, the Defendant’s assertion does not seem to have any grounds.

(b) The intention to commit fraudulent acts and to injure himself;

1) Relevant legal principles

A) In order for a debtor's act of disposing of property to become a fraudulent act, the act must cause a decrease in the debtor's whole property and thus, the debtor's small property should be more than the active property. In other words, the debtor's active property should be more than the active property. Even if the debtor's total property exceeds the creditor's claim amount due to real estate claims among his active property at the time of disposing of the property, the calculation of the active property should be excluded from the active property that has no real property value and cannot act as a joint security for the claim, unless there are any other special circumstances. If the property is a claim, it should be included in the active property only where it is confirmed by reasonably determining whether it is certain to receive payment easily (see Supreme Court Decision 2001Da32533, Oct. 12, 200).

B) Meanwhile, if a debtor donated his/her own property to another person under excess of his/her obligation, such act would constitute a fraudulent act unless there are special circumstances (see Supreme Court Decision 97Da57320, May 12, 1998). The debtor’s intent to commit suicide is presumed (see Supreme Court Decision 2000Da41875, Apr. 24, 200).

2) Determination as to whether the debt exceeds the debt

In light of the above legal principles, it is examined as to whether CCC was in excess of its obligation at the time of payment to CCC on March 7, 201l.

In addition to the aforementioned evidence evidence evidence evidence No. 33 and the overall purport of the pleadings, it can be acknowledged that there were real estate equivalent to the market value of OOO (OO also 389-5, 389-12 parcels of land) with active property of the CCC around March 7, 201, and that there was OOO of the instant value-added tax notice amount with small property. Meanwhile, according to the instant settlement agreement, it is difficult to view that CCC had a claim equivalent to the value-added tax and the same amount with respect to the EOE sales. However, it is difficult to view that CCC had been 100,000,000,000 won for EO210,0000,0000 won for EO210,0000,0000 won for EO27,000,0000 won for EO21,000,0000 won for EO21,000,000.

(3) The nature of money paid by CCC to CCCB

A)Judgment

In other words, the following circumstances revealed by the facts recognized earlier, the instant project is the only business of the CCC, and CCC determined that all the value-added tax refunded after the conclusion of the instant agreement can be deposited into the operating account of the instant project and that it could not assert business profits other than OOO won among the already refunded value-added tax, so it would not be possible to expect that CCC would incur revenue after the agreement. CCC would not have actually performed its business around March 7, 2011, and CCC would not have been engaged in its business, and CCC would have been deemed to have been engaged in its business, other than donation, and it is reasonable to deem that CCC paid OOB to CCC on March 7, 2011.

B) The defendant's assertion and judgment as to it

(1) The defendant's assertion

(A) The above amount has been paid retirement allowances not paid by CCC to CCCB, and its details are as follows.

(B) A retirement allowance that is to be paid by CCC is the amount of OOB. Around July 1, 2010, the retirement allowance actually paid at the time was reported to be received by OOB while conducting interim settlement of the retirement allowance. However, the retirement allowance paid at the time was paid to OOB as an officetel No. 3 B B, 2010 on September 17, 2010, the total amount of OOB paid at approximately 40 square meters on the land of OB, and the short-term rental loans provided by CB, which is offset against some of the retirement allowances, was paid by OB as a retirement allowance paid by OB to OB as a set-off in accordance with accounting practices around March 201 (i.e., part of the retirement allowance paid by OB).

(2) Determination

In addition to the above evidence evidence Gap evidence Nos. 7, Gap evidence Nos. 8-1 through 3, and the purport of the whole arguments, it can be acknowledged that the retirement benefits of ChoB are those that are to be paid to ChoB except for the source-based fixed tax amount, and CCC offsets part of the retirement benefits against the short-term loans provided to ChoB, and that all of the retirement benefits were paid to OB by paying the short-term loans provided to OB.

The defendant asserts that the monthly salary of ChoB is 4 years, since the monthly salary of ChoB is 00 won and the number of years of service is 4 years based on Eul evidence No. 4 (CCC's provision on payment of retirement allowance for executive officers, and the retirement allowance for executive officers is determined by multiplying the amount of wages for the 4 months immediately preceding his retirement by the number of years of service and weight, and the representative director is 5.0).

In light of the following facts: (a) for ChoB, the retirement allowance has already been paid to OB as the retirement allowance; (b) Eul's No. 4 was only effective on January 1, 2010; and (c) it cannot be known when it was enacted through any process. According to the evidence No. 4, the representative director is paid twenty times the retirement allowance prescribed by the law, and even if ChoB is an executive officer, it is excessively excessive payment is given; (c) for ChoB and NewJ, the national tax refund claim is not actually established in document; (d) it is difficult to view Eul's 4 as the retirement allowance claim merely because the statement No. 32 written evidence alone is insufficient to deem that the Plaintiff's claim for retirement allowance against OB or the Plaintiff's claim for retirement allowance cannot be seen as the Plaintiff's claim for retirement allowance against the Plaintiff's officer, who is the Plaintiff's claim for retirement allowance of the Plaintiff's claim for retirement allowance of OB or the Plaintiff's claim for retirement allowance of OB.

4) Sub-determination

Therefore, it is reasonable to see that the CCC donated OOB to the CCC in excess of its obligation as a fraudulent act, and it is presumed that CCC’s intent is presumed to be, and the Defendant’s malicious intent is also presumed to be the subsequent purchaser, barring any special circumstance, the gift contract between CCC and CB, which was concluded on March 7, 2011, should be revoked. Since the check donated to CCC was deposited in the Defendant’s deposit account, the subsequent purchaser, the Defendant, who is the subsequent purchaser, shall return the amount equivalent to its value, and the Plaintiff may seek direct payment to the Plaintiff. Accordingly, the Defendant is obligated to pay the Plaintiff damages for delay at a rate of 5% per annum as stipulated in the Civil Act from the day following the date the judgment of this case became final and conclusive to the day of full payment.

4. Judgment on the defendant's defense

The defendant, in order to repay his debt to one bank, was paid out of the amount that he received as retirement allowance by ChoB, his husband, and since CCC did not know that it was a fraudulent act, it was a bona fide purchaser's defense that it was the subsequent purchaser.

According to the evidence No. 19, the Defendant’s repayment of the Defendant’s loans to one bank may be recognized as having been made. However, as seen earlier, the CCC’s payment to the CCC constituted a donation by the CCC, and as follows, the Defendant appears to have received OB’s donation from the CCC and repaid its obligations. The Defendant appears to have been aware of the CCC’s financial situation, etc., in which the CCC was a joint representative director after the instant settlement agreement, which appears to have been made to have been done on April 8, 201. The Defendant did not appear to have been aware of the fact that the CCC’s payment was made on the part of the CCC by the CCC, and it was difficult to view that the Defendant had been aware of the fact that the CCC’s previous payment was made on the part of the CCC, and that there was no other evidence that the CCC had been in fact suspended from its business after the lapse of one year.

5. Conclusion

Therefore, the plaintiff's primary claim in this case is dismissed as it is without merit, and the supplementary claim in the trial is accepted as reasonable. Since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's primary claim is revoked and the plaintiff's primary claim is dismissed. It is so decided as per Disposition by the assent of all participating Justices.