any donation of real estate proceeds to the spouse shall constitute a fraudulent act

Receipt of real estate transfer price by the spouse's account constitutes a donation, which constitutes a donation, and thus, it constitutes a fraudulent act and is presumed that the defendant's bad faith is presumed.

2017 Ghana 239253 Revocation of Fraudulent Act

Korea

AA

June 22, 2018

July 17, 2018

1. The contract of gift amounting to KRW 99,096,000 entered into on June 15, 2016 between the Defendant and BB shall be revoked.

2. The defendant shall pay to the plaintiff KRW 99,096,00 as well as full payment from the day after the day when this judgment became final and conclusive to the plaintiff

By the day, 5% interest per annum shall be paid.

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

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. Defendant and BB (name VB prior to the opening of name) are between husband and wife ○○○○○○○○-dong ○○○.

On February 18, 2016, 8 households on the ground (No. 201, 202, 203, 301, 302, 401, 402, and 501, hereinafter referred to as "each of the instant real estate") jointly own 1/2 shares of 8 households on the ground of multi-household housing (hereinafter referred to as "each of the instant real estate").

(b) Defendant as follows, as well as KRW 887,00,000, excluding deposit for lease on a deposit basis, out of the above purchase price:

On April 19, 2016, SB received deposits from BB's bank account, and completed the registration of ownership transfer of each real estate of this case to SS.

C. The Defendant, as an owner of 1/2 shares in each of the instant real estate, filed a preliminary return of capital gains tax on such owner, and paid capital gains tax on or before April 22, 2016. However, capital gains tax was paid by BB.

In addition, the head of the ○○ Tax Office under the Plaintiff-affiliated Tax Office did not pay the due date to BB on October 31, 2016.

On December 31, 2016, KRW 66,339,70, and KRW 66,339,700, respectively, were notified of each imposition of capital gains tax of KRW 66,339,70. BB did not pay the said capital gains tax, and thus, the amount of delinquent taxes was KRW 155,765,460, including additional charges, at the time of filing the instant lawsuit.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 5, purport of the whole pleadings

2. Assertion and determination

A. Summary of the parties' assertion

1) The Plaintiff’s account of the Defendant’s ○ Bank on June 15, 2016 out of the purchase price of each of the instant real estate.

9,096,00 won received as a donation from BB by the Defendant. The above donation constitutes a fraudulent act detrimental to the Plaintiff, which is the pertinent tax claim, and thus, should be revoked. The Defendant asserts that the Plaintiff should be paid KRW 9,096,000 as restitution to its original state, and damages for delay.

2) As to this, the Defendant did not receive a donation of the above KRW 99,096,00 from BB, even if:

Even if the donation was received, BB was not in an insolvent condition at the time of the donation, and further,

The Plaintiff asserts that, around April 22, 2016, the Plaintiff knew of the gift and fraudulent act on or around April 22, 2016, for which the Defendant reported the transfer income tax of each of the instant real estate, the lawsuit of revocation of fraudulent act is unlawful as the exclusion period expires

B. Determination on this safety defense

In the exercise of creditor's right of revocation, "the date when the creditor becomes aware of the cause for the revocation" means the date when the creditor becomes aware of the requirement of creditor's right of revocation, i.e., the debtor's knowledge that the

the date on which the obligee becomes aware of the fact that the action was committed. If the obligee became aware of the cause of revocation, then the obligee shall not be

The mere fact that the debtor conducts the act of disposal of property is insufficient.

the debtor's intent to be aware of the existence of a specific fraudulent act, and further, the debtor's intent to be aware of the existence of such fraudulent act.

2.3 The court below held that the plaintiff was aware of the objective facts of the fraudulent act and that the plaintiff was aware of the grounds for the revocation.

could not be presumed, and the burden of proof as to the exclusion period shall be the other party to the lawsuit seeking revocation of the fraudulent act.

Supreme Court Decision 2016Da272311 Decided April 10, 2018 (see, e.g., Supreme Court Decision 2016Da272311).

The fact that the donation contract alleged by the Plaintiff was in around June 15, 2016 is as seen earlier, and is therefore, as seen earlier.

Although the fact that the lawsuit was brought on December 10, 2017 is clearly recorded, the plaintiff's lawsuit is otherwise filed.

The gift contract was a fraudulent act and the BB had the intention of deception before one year from the beginning of the contract.

there is no evidence to deem that the plaintiff was aware of the fact (the defendant is the defendant's intent to commit such fraudulent act and to injure the plaintiff.

Although it was alleged that he had known about April 22, 2016, the above contract was concluded before April 22, 2016, and thus the assertion itself is not reasonable. Therefore, the defendant's prior defense on the merits is without merit.

C. Judgment on the merits

(i)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 can be viewed as a fraudulent act in principle, it is highly probable that at the time of a fraudulent act had a legal relationship that is the basis of the establishment of a claim, and that a claim should be established by the near future legal relationship. In fact, where a claim has been created by realizing the possibility in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2011Da76426, Feb. 23, 2012). Meanwhile, the income tax on the gains from transfer of assets is abstractly established on the last day of the month in which the amount that serves as the tax base (see, e.g., Supreme Court Decision 92Nu787, Mar. 23, 1993); the additional dues under Article 21 of the National Tax Collection Act are the amount of national tax imposed by the due date for arrears if national taxes have not been paid by the due date.

We examine the instant case in accordance with the aforementioned legal doctrine. At the time BB entered into a sales contract for each of the instant real estate, there was a high probability as to the facts constituting the basis for establishing the Plaintiff’s transfer income tax claim and the occurrence of such claim (see Supreme Court Decision 2003Da30616, Dec. 12, 2003). The last day of the month during which the ownership of each of the instant real estate was transferred.

On April 30, 2016, the obligation to pay the transfer income tax was abstractly established, and it was thereafter.

Since transfer income tax was imposed on BB and its probability was realized and its claim was established, the Plaintiff’s transfer income tax claim on BB against the Plaintiff may be a preserved claim for the obligee’s right of revocation in relation to the disposition of each real estate purchase price of the instant case by BB. In addition, according to the legal principles as seen earlier, the Plaintiff’s tax claim on BB, including additional dues, becomes a preserved claim for the obligee’s right of revocation

2) Whether the fraudulent act was established

A) Each of the instant real estates was jointly owned by the Defendant and BB, and thus, jointly owned the shares of 1/2.

It is reasonable to view that the purchase price also belongs to the Defendant and BB as the 1/2 equity interest. However, the above is reasonable.

184,778,00,000 won paid to BB out of the purchase amount of KRW 887,00,000, other than deposit for deposit for lease;

The remainder, excluding KRW 10,56,500, June 22, 2016, excluding KRW 174,221,50,500, April 28, 2016

702,222,00 won was deposited in the Defendant’s bank account, which was then deposited in the Defendant’s account at the above 887,00,000 won.

The amount of KRW 443,50,00 exceeds 1/2, and there is no evidence to deem that the purchase price deposited into the Defendant’s bank account in excess of the above 1/2 was used for BB for the purpose of BB (such as repayment of debt by BB), and there is no right that the Defendant is entitled to receive the said money from BB.

Therefore, it is reasonable to view that BB made a donation to the Defendant at least KRW 9,096,00,000, which was the last deposit on June 15, 2016, out of the money deposited into the Defendant’s bank account in excess of the Defendant’s one-half share.

B) Further to each of the above evidence, Gap evidence Nos. 6 and 7, the whole purport of the pleading is examined:

On June 15, 2016, ○ bank deposit claims of KRW 70,022,502 with active property of BB, but all were withdrawn and terminated on the same day. The balance of the claim for the transfer price of each real estate of this case was other than that of this case.

109,652,50 won (i.e., KRW 99,09,00 + KRW 10,556,500) still existed, and as a small property, there was KRW 155,765,460 for the instant tax claim.

However, on June 15, 2016, BB donated KRW 99,096,00,00 among the remaining claim for transfer price to the Defendant on June 15, 2016, which resulted in a shortage of creditors’ joint collateral. As such, BB’s above donation to the Defendant constitutes a fraudulent act against general creditors including the Plaintiff, and the Defendant is the spouse of BB, the intent of BB’s death is sufficiently recognized.

3) Scope of revocation and return of fraudulent act

The amount of tax liability against the Defendant of BB around December 10, 2017, which was the time of the filing of the instant lawsuit.

155,765,460 Grounds are as seen earlier, and the amount of the above-mentioned gift to the defendant of BB

Since the amount exceeds 99,096,000 won, it was concluded on June 15, 2016 between the defendant and BB.

The contract of donation of KRW 99,096,00 shall be cancelled, and the defendant shall be liable to pay to the plaintiff 9,096,000 and damages for delay calculated by the rate of 5% per annum under the Civil Act from the day following the day this judgment becomes final and conclusive to the day of full payment.

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.