If it is necessary to determine whether to impose a tax on a non-taxation, the initial date of the exclusion period shall be the date on which a cause for imposing the tax arises.

If it is necessary to decide whether a taxpayer satisfies the requirements for non-taxation for a certain period for the determination of non-taxation, the tax authority may not immediately impose tax and impose tax at the time when the taxpayer is confirmed to have failed to meet the requirements for non-taxation. Thus, the base date of the exclusion period is the date on which the tax authority may impose the relevant tax.

2012 Written Revocation of Fraudulent Act 10170

Korea

NewAA 2 others

January 17, 2013

January 31, 2013

1. (a) With respect to each real estate listed in the Schedule 1 and 2 between Defendant New A and NewB, the gift agreement entered into on June 12, 2007 shall be between Defendant New A and NewB, and

B. The gift agreement concluded on June 11, 2007 between Defendant NewCC and NewB with respect to each real property listed in the separate sheet 3 and paragraph 4 shall not exceed KRW 000,00.

C. Each contract of donation concluded on June 12, 2007 between Defendant NewD and NewB with respect to each real property listed in attached Tables 5 and 6 shall be revoked.

2. To the newB, and

A. With respect to each real estate listed in attached Tables 1 and 2, Defendant NewA implements the procedure for registration of cancellation of ownership transfer registration completed under the receipt No. 39474, Jun. 15, 2007, with respect to the Daejeon District Court's Southern Registry.

B. With respect to each real estate listed in the separate sheet 5 and paragraph 6, the defendant prior registry office in Daejeon District Court is implementing the procedure for cancellation of ownership transfer registration completed under No. 39475 on June 15, 2007.

C. Defendant NewCC shall pay the Plaintiff 00 won with 5% interest per annum from the day following the day this decision became final and conclusive to the day of full payment.

3. The costs of lawsuit shall be borne by the Defendants.

The same shall apply to the order.

1. Facts of recognition;

A. Tax claims against the Plaintiff’s newB

1) On October 17, 2005, newB transferred 00 farmland to the Seo-gu Daejeon, Seo-gu, Daejeon, and 00 farmland as well as 00 farmland as above (hereinafter collectively referred to as "O-dong farmland") on October 19, 2005 to the Korea Land Corporation on the ground of consultation acquisition (i.e., KRW 00 (= KRW 000 farmland as O-dong 00 + KRW 00-1 farmland as O-dong 00).

(2) Around December 2005, newB filed an application for non-taxation of capital gains tax with the head of Seo-gu Daejeon District Tax Office claiming that it would be self-fluence by acquiring other farmland as substitute land of OB, and that it would be self-fluence by using OB. Around March 14, 2006, NewB acquired OB-type 6,618 square meters (hereinafter referred to as OB-type 300 square meters) from the date of acquisition of the said land. On May 30, 2011, the head of Seo-gu Daejeon District Tax Office confirmed that newB did not self-fluence of OB-owned land, and that it would be 00 capital gains tax (i.e., non-taxation of capital gains tax on the farmland of 00 won and 00 capital gains tax (i.e., additional tax on 100 capital gains tax + additional tax on 200 capital gains tax on the newly reported 300 capital gains tax).

(b) the disposal of the newB;

1) NewB donated each real estate listed in the list 1 and 2 in the separate sheet to ASEAN, and on June 15, 2007, the registration of ownership transfer was completed under the number of Daejeon District Court Daejeon District Court Daejeon District Court 39474 on each of the above real estate.

2) NewB donated each real estate listed in the list 3 and 4 of June 11, 2007 to Defendant NewCC, and completed the registration of ownership transfer with the number of Daejeon District Court Daejeon District Court Daejeon District Court 39473 on June 15, 2007.

3) NewB donated each real estate listed in the list 5 and 6 of June 12, 2007 to Defendant DaD, who was the grandchild, and completed the registration of ownership transfer under the number of Daejeon District Court Daejeon District Court Branch 39475 on June 15, 2007.

(hereinafter referred to as "each of the donations of this case" added to all of the above donations

[Reasons for Recognition]

The facts without dispute, and the entries in Gap 1 through 3, 8 through 10, 15, and 18, and the whole purport of the pleading

2. Judgment on the main defense of this case

A. The Plaintiff asserted that each of the instant gift contracts constitutes a fraudulent act, and the Defendants, as to the instant lawsuit seeking the revocation of each of the instant gift contracts and the restoration thereof, and on June 15, 2007, when the ownership transfer registration was completed in the name of the Defendants on each of the real estate listed in the separate sheet, known that each of the instant gift contracts was concluded and each of the instant gift contracts constitutes a fraudulent act. Accordingly, the instant lawsuit filed on May 10, 2012, which was one year after the lapse of the aforementioned one, should be viewed as unlawful, even with the exclusion period of the obligee’s right of revocation.

B. The date when the obligee, which is the starting point of the exclusion period in the exercise of the obligee’s right of revocation, becomes aware of the fact that the obligor committed a fraudulent act while knowing that it would prejudice the obligee. This is required to know the fact that the obligor merely knows the fact that the obligor performed a disposal act of the property, and that the obligor was aware of the existence of a specific fraudulent act, and that there was an intent to deception against the obligor. Meanwhile, the burden of proof regarding the limitation period exceeds the limitation period (see, e.g., Supreme Court Decision 2007Da63102, Mar. 26, 2009). However, the Plaintiff had no evidence to prove that each gift contract of this case constitutes a fraudulent act, and that there was a newB intent, which is the obligor, prior to May 10, 2012, which was the date of filing the instant lawsuit, constituted the obligor’s intention to injure the obligee. This is not acceptable.

3. Judgment on the merits

A. Formation of preserved claims

1) In principle, a claim protected by the obligee's right of revocation should have occurred before the obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, there is a high probability that at the time of the juristic act, there has already been a legal relationship which serves as the basis for the establishment of the transfer income tax claim at the time of the juristic act, and that there is a high probability that the claim would be created in the near future, and its claim may also become a preserved claim of the obligee's right of revocation if the claim actually occurred in the near future (see, e.g., Supreme Court Decision 2006Da66753, Jun. 29, 2007).

[On the other hand, the amount of claims covered by the creditor's right of revocation includes interest accrued after the fraudulent act and delay damages from the time of the conclusion of the arguments in fact-finding proceedings, and these legal principles also apply to the additional national tax (see, e.g., Supreme Court Decision 2006Da66753, Jun. 29, 2007). The transfer income tax of this case, which is the preserved claim of the creditor's right of revocation

2) Determination as to the Defendants’ exclusion period of national tax and assertion

A) The defendants' assertion

NewB did not fall under the requirements of non-taxation due to farmland substitute land from the beginning because it was not true that OB used substitute land as substitute land did not fall under the requirements of non-taxation due to farmland substitute land from October 31, 2005, which was the last day of the month in which OB was transferred. Nevertheless, the instant disposition of imposition of capital gains tax was made on May 30, 201, for which the exclusion period of five years elapsed. Thus, the instant disposition of imposition of capital gains tax was made on May 30, 201.

(b) relevant legislation;

(1) According to the provisions of Article 26-2(1)3 and (3) of the Framework Act on National Taxes, Article 12-3(1)1 of the Enforcement Decree of the Framework Act on National Taxes, and Article 110(1) of the former Income Tax Act, the exclusion period of capital gains tax is five years from the date on which it can be imposed, and the date on which it can be imposed at that time shall be June 1 of the year following the current year, which is the day following the day on which it can be imposed in principle. However, in the case of non-taxation of capital gains tax by farmland substitute land, if the taxpayer should not be asked whether it satisfies the non-taxation requirement for a certain period of time, such as in the case of non-taxation, and the tax authority shall not impose capital gains tax immediately on the taxpayer, and it is determined that the taxpayer did not meet the non-taxation requirement, and the starting date of the exclusion period shall be the date on which the tax authority occupies at least two years from the previous farmland under Article 26-2(3) of the Framework Act, and Article 12-3(1)3(1)3)3 of the former Enforcement Decree of the same Act.

(2) According to the facts of this case, under the above facts, and B, 100 OB on October 17, 2005, and 00-1 on October 19, 2005, 200, and 153(2)1 of the former Enforcement Decree of the Income Tax Act, in order to meet non-taxation requirements as provided in Article 89(4) of the former Income Tax Act, 16 through 18 October 16, 2006, 10 to 10.0, 200, 30,000,000,000,000,000,000,000,000,000,000,000,000.0,000,000,000,000,000,000,000,000,000,000,000.

B. Whether a fraudulent act was committed

1) In order to become a fraudulent act, the debtor's act of disposing of property shall cause a decrease in the debtor's whole property and in short of the joint security of claims, i.e., the debtor's passive property should be more active property, and in case where the debtor has engaged in several continuous disposal of property, unless there are special circumstances that require the debtor to regard the act as one act, it shall not be judged as a series of acts en bloc, but shall be determined as to whether the act causes insolvency individually by each act. However, in case where the debtor has a special relationship with the debtor, the other party is uniform, and the opportunity to dispose of property is close at intervals, it shall be determined as one act of the debtor's several disposal of property, and thus, it shall be determined as to whether the debtor's disposal of property should be reduced (see, e.g., Supreme Court Decision 2005Da7795, Jul. 22, 2005). According to the above facts, each of the previous B's disposal of property in this case should be considered as one act.

2) Meanwhile, in determining whether a debtor's insolvency is the requirement for the exercise of the creditor's right of revocation, the small property subject to the fraudulent act is, in principle, necessary. It is highly probable that the legal relationship is established at the time of the fraudulent act, and that the obligation is established in the near future, as it is realized in the near future, the obligation should also be included in the debtor's small property (see Supreme Court Decision 2010Da68084, Jan. 13, 201). According to the above circumstances, the debtor's new property was 00 won or more, and the debtor's new property was 12, and 13, and 16, respectively, were 00 won or more at the time of this case's transfer. According to the above circumstances, the debtor's new property was 00 won or more, and the new property was 1000 won or more at the time of this case's transfer, and 1000 won or more at the time of this case's transfer.

3) As to this, the Defendants asserted that each of the instant donations was made by the newB in order to adjust their own assets, and that there was no intention to harm the newB, but there is no evidence to deem that there was no intention to harm the newB. This part of the Defendants’ assertion is rejected. In addition, the Defendants’ defense to the effect that each of the instant donations was made in the manner that they were not aware of the fraudulent act, but there is no evidence to acknowledge it. The Defendants’ assertion on this part is not acceptable.

(c) Revocation of fraudulent act and reinstatement;

1) Defendant NewA and NewD

따라서 ①㉮ 피고 신AA과 신BB 사이에 별지 목록 제1， 2항 기재 각 부동산에 관하여 체결된 2007. 6. 12.자 증여계약과，㉮ 피고 신DD와 신BB 사이에 별지 목록 제5， 6항 기재 각 부동산에 관하여 체결된 2007. 6. 12.자 증여계약은 각 사해행위로서 취소되어야 하고，② 각 그 원상회복으로서 신BB에게，㉮ 피고 신AA은 별지 목록

제1， 2항 기재 각 부동산에 관하여 마쳐진 소유권이전등기의 말소등기절차를，㉯ 피고 신DD는 별지 목록 제5， 6항 기재 각 부동산에 관하여 마쳐진 소유권이전등기의 말소 등기절차를 각 이행할 의무가 있다.

2) Defendant NewCC

A) If a legal act regarding a certain real estate constitutes a fraudulent act, in principle, it is necessary to cancel the fraudulent act and order the restoration of the real estate itself, such as transfer of ownership, but, if it is impossible or considerably difficult to return originals, it is necessary to order compensation equivalent to the value of the fraudulent act as joint collateral of general creditors, and in this regard, it is necessary to order compensation for the value of the real estate within the extent of establishment of the fraudulent act because a third party in good faith has acquired mortgage, and it is necessary to order compensation for the entire value of the real estate acquired by the third party in common at the time of the fraudulent act to be deducted from its value (see, e.g., Supreme Court Decision 200Da40286, Dec. 12, 200). In addition, it is necessary to order the new beneficiary to return the real estate at the same time to the original condition that it would be more than 00, and that the new beneficiary would be more than the value of each claim for restoration of the real estate at the same time, and that the creditor would be more than the value of the original claim.

① Accordingly, the gift agreement between Defendant NewCC and NewB on June 11, 2007 entered into with respect to each real estate listed in the separate sheet No. 3 and paragraph 4 is within the scope of "the total amount of the above transfer income tax amount, which is the preservation claim of this case," and is within 000 won, which is the whole value of each of the above real estate, must be cancelled within the limit of KRW 000 as requested by the Plaintiff, and ② as restoration, Defendant NewCC is obligated to pay to the Plaintiff the above KRW 132,912,05 and damages for delay calculated at the rate of 5% per annum from the day following the date this decision became final and conclusive to the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted for all reasons, and it is so decided as per Disposition.