The reservation of this case constitutes a fraudulent act

In the instant case where the Defendant was provided with security, which is almost the only property from the ParkB, the Defendant had no knowledge of the fact that the instant promise to sell and purchase the instant real estate was made to the general creditors of ParkB, and thus, it is insufficient to recognize that the instant promise to sell and purchase the instant real estate constitutes a fraudulent act and thus ought to be revoked.

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

2015 Ghana 5349439 Revocation of fraudulent act

1. Korea;

1. Park A;

May 4, 2016

June 1, 2016

1. As to real estate listed in the separate sheet:

A. The purchase and sale reservation entered into on August 4, 2014 between the Defendant and ParkB shall be revoked.

B. The Defendant shall implement the procedure for registration of cancellation of the provisional right to claim ownership transfer, which was completed by the Seoul Central District Court’s registration office No. 178383 on August 14, 2014, to ParkB.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. Tax claim 253,309,470 won against the Plaintiff’s stuffB

(b) An act of disposal by ParkB;

on August 4, 2014, ParkB entered into a pre-sale agreement (hereinafter referred to as "the pre-sale agreement of this case") with the Defendant, his father, and on August 4, 2014, on the real estate listed in the separate sheet (hereinafter referred to as "real estate of this case"), and completed the provisional registration of the right to claim ownership transfer (hereinafter referred to as "provisional registration of this case").

(c)the excess of obligations of ParkB;

ParkB’s active property at the time of August 4, 2014, which was the date of the instant promise to sell and purchase, is KRW 431,557,759 (including KRW 430,000,000 on the instant real property), and the small property is KRW 496,118,092 as follows.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 through 6 (including branch numbers for those with a satisfy number), the purport of the whole pleadings

2. Determination

(a)the existence of preserved claims;

In principle, 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. However, at the time of the fraudulent act, there is a legal relationship that has already been based on which the claim was established, and there is high probability that the claim would have been established in the near future based on such legal relationship, and in cases where a claim has been created due to the realization of the probability in the near future, such claim may also become a preserved claim (see, e.g., Supreme Court Decision 9Da53704, Feb. 25,

In the event ParkBB entered into the instant reservation, the Plaintiff’s instant taxation claim against ParkB had already existed legal relations on the basis of the taxation claim, as well as the date on which the liability for tax payment has already been established. Moreover, it is naturally anticipated that the head of the competent tax office impose value-added tax and comprehensive income tax on ParkB, who owns the property after conducting the business, every year. As such, it appears that there was a high probability that the Plaintiff’s taxation claim may occur in the near future at the time of the instant promise to sell and purchase. In fact, by notifying the head of competent tax office ParkB BB of the value-added tax and comprehensive income tax, the pertinent tax claim was realized and the said taxation claim occurred.

B. Establishment of fraudulent act

According to the above facts, ParkB concluded the instant promise with the Defendant for the security of existing claims in excess of obligations, thereby causing the shortage of creditors' joint security or aggravation of the shortage of joint security already occurred. Therefore, the instant promise constitutes a fraudulent act, ParkB knew that it would prejudice its general creditors at the time, and the Defendant’s bad faith, a beneficiary, is presumed.

(c) Defenses of bona fide beneficiaries;

(1) The defendant's argument

The Defendant loaned KRW 500 million to ParkB from 2007 to 2013, and entered into the instant reservation and made the instant provisional registration for the purpose of securing the loan.

On the other hand, ParkB's default or ParkB's default did not know at all whether it was in excess of the debt.

(2) Determination

In a case where a certain legal act constitutes a fraudulent act, the beneficiary's bad faith is presumed to have been presumed to have been the beneficiary at the time of the legal act. In addition, in order to recognize that a debtor's act of disposal of property against a third party constitutes a fraudulent act, there should be objective and objective evidence, etc. supporting the presumption and that the beneficiary was bona fide, and it should not be readily concluded that the beneficiary was bona fide at the time of the act merely a unilateral statement or a statement of the debtor or the beneficiary, etc. (see, e.g., Supreme Court Decision 2006Da5710, Apr. 14, 2006). In addition, barring any special circumstance, the debtor's act of offering real estate, the sole property of which is the debtor's property, among creditors, becomes the object of creditor's right of revocation in relation to other creditors (see, e.g., Supreme Court Decision 200Da4352, Apr. 12, 2002).

On the other hand, it is difficult to deem that the Defendant concluded a pre-sale agreement on the instant real estate under the circumstances as alleged above, and even if the Defendant concluded a pre-sale agreement and made a provisional registration under the circumstances as alleged by the Defendant, it is insufficient to recognize that the Defendant was unaware of the fact that the pre-sale agreement would prejudice the general creditors of ParkB at that time, and that there is no other evidence to support the pre-sale agreement. Thus, the Defendant’s defense is without merit.

(d) Revocation of fraudulent act and reinstatement;

Therefore, the instant provisional registration is subject to cancellation because it constitutes a fraudulent act, and the Defendant is obligated to implement the cancellation registration procedure of the instant provisional registration, which was completed with respect to the instant real estate, as the restitution following such cancellation.

3. Conclusion

If so, the plaintiff's claim of this case is justified.