Transfer tax claims established by the transfer of real property are subject to the obligee's right of revocation.

It was highly probable that the transfer income tax of this case was imposed upon the transfer of real estate and the claim of this case was established in the near future, and the possibility was realized in the near future, and thus the transfer income tax of this case was established, and the transfer income tax of this case becomes the preserved claim of obligee's right of revocation.

2012 Gohap 103729 Revocation of fraudulent act

Korea

KimA

January 29, 2013

February 19, 2013

1. Revocation of each contract of donation concluded on September 30, 2008, October 1, 2008, and October 1, 2008 between the defendant and KimB, and November 17, 2008.

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

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

The same shall apply to the order.

1. Basic facts

"A. On March 26, 2008, KimB transferred 00 OOO apartment 00 000 0000 0000 (hereinafter referred to as "private real estate") to KimB on the basis of the payment, and the e.g., the transfer income tax for the year 2008 2000 . (hereinafter referred to as "the transfer income tax of this case"). However, KimB did not pay 00 won until August 31, 2009, and was delinquent as of September 18, 2012; (b) the defendant married with KimB, but the contract of this case was made on November 30, 2005, and KimB paid 00 won to the defendant, and the contract was made on September 30, 2008 .00 .0 .00 .00 .00 .100 .00 .00 .00 .1008 . 2008 .1008 .

[Reasons for Recognition] The facts without dispute, Gap evidence 1 through 6, Eul evidence 8 (including each number, hereinafter the same shall apply), Eul evidence 2, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

Each gift contract of this case is an act committed by KimB while knowing that it would harm the plaintiff, who is a tax claim, and thus, the defendant is obliged to cancel this contract and return each gift amount of this case to the plaintiff by restitution.

B. Defendant’s assertion

The defendant agreed to receive 50% of the purchase price of the real estate in this case from KimB as the division of property between the defendant and KimB in around 2005, and around 2006, the KimB sold the real estate in this case to KimB, and around 2008, MB did not know that each of the donations in this case was fraudulent since the defendant did not know that the defendant received part of the money that was received from KimB, and that the defendant did not know whether BB did not pay taxes.

3. Determination

A. Scope of the preserved claim

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 could be viewed as a fraudulent act in principle, the claim may also become a preserved claim for the obligee's right of revocation in the near future where there is a high probability that the claim has already been established at the time of the fraudulent act, and that is based on the existing legal relationship in the near future, and where the probability has been realized in the near future, the claim may also become a preserved claim for the obligee's right of revocation in the near future. In addition, the transfer of the real estate owned by the obligor immediately before the fraudulent act, and the transfer of the real estate in bad faith and bad faith in payment in accordance with the capital gains tax may become a prior claim for the obligee's right of revocation in the near future (see Supreme Court Decision 2006Da6753, Jun. 29, 2007). According to the above acknowledged facts, KimB may be deemed to have been established as a basis for the creation of the capital gains tax in this case by transferring the real estate which was owned by the Defendant before the transfer.

B. Whether a fraudulent act was committed

The facts that there is no dispute, and evidence Nos. 3 and 7 comprehensively take into account the overall purport of the pleadings, and the facts that the first donation was made between each of the instant donations, around September 30, 2008, and around September 30, 2008, the fact that the deposit was made 00 won. Meanwhile, as seen earlier, as the small property of KimB was the small property of KimB, the transfer income tax liability of KRW 00 was already over obligation, and KimB had already been in excess of obligation, and each of the instant donations contract is a fraudulent act that further deepens the above excess obligation.

(c) Presumption of intention and bad faith;

Furthermore, in light of the above facts, KimB, and at the time of each gift contract of this case, it is presumed that the defendant, the beneficiary, was aware of the fact that each of the gift of this case was a fraudulent act detrimental to the general creditor including the plaintiff. Accordingly, the defendant alleged that the fraudulent act of KimB was bona fide by KimB, and the defendant agreed to receive 50% of the sales price of the real estate of this case, except for the related expenses such as capital gains tax, etc., from the sales price of the real estate of this case, at around October 2006, in full view of the purport of the entries and arguments in subparagraphs 2 to 4, 2005, the defendant agreed to receive 50% of the sales price of this case with KimB around October 2, 2006, but it is not sufficient to recognize that the defendant, the former spouse of KimB, was bona fide, and there is no evidence to support this. The defendant's above assertion is without merit.

D. Sub-determination

Therefore, all of the gift contracts of this case concluded between KimB and the defendant as a fraudulent act and the defendant are revoked, and the defendant is obligated to pay to the plaintiff the total sum of each gift amount of KRW 000 and the damages for delay calculated at the rate of 5% per annum under the Civil Act from the day after the judgment becomes final to the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.