Whether property division by divorce constitutes a fraudulent act

Division of property following divorce is a system with the nature of liquidation of joint property of the married couple and support to the other party, and even if a debtor in excess of debt reduces joint security against the creditor due to divorce, such division of property cannot be deemed a fraudulent act unless the division of property exceeds a considerable degree, and the burden of proving that it exceeds a considerable degree is a creditor.

The contents of the decision shall be the same as attached.

Article 30 (Cancellation of Fraudulent Act)

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

피고와 소외 양○호 사이에 별지 목록 기재 아파트에 관하여 2006.8.31. 체결된 증여계약을 297,522,360원의 한도 내에서 취소한다. 피고는 원고에게 297,522,360원 및 이에 대한 이 판결 확정일 다음날부터 다 갚는 날ㄲ자이 연 5%의 비율에 의한 금원을 지급하라.

1. Basic facts

A. Nonparty 2, while operating an individual entrepreneur, omitted taxes of KRW 274,377,90 in total as follows, by receiving a processed tax invoice from the point of transfer of ○○ ○○ Drinking Beverages Co., Ltd., a business partner.

B. On August 31, 2006, 2006, both parties donated to the Defendant an apartment as indicated in the separate sheet (hereinafter “the apartment of this case”) owned by them, and completed the registration of ownership transfer on the ground of donation by the Jung-gu District Court No. 80737, Sept. 1, 2006.

C. At the time of August 31, 2006, both ○○○○○-dong, Seoul, and 197-○○○○○○○○○○○○○○○ (hereinafter “instant apartment-type factory”) owned the instant apartment-type factory in addition to the instant apartment-type factory. However, the market price as of August 31, 2006 of the instant apartment-type factory was KRW 227,50,000, and the market price as of September 26, 2006 of the instant apartment-type factory was KRW 150,01,329.

D. Meanwhile, on August 31, 2006, as well as the above tax liability, both ○○ Bank was liable for the tax amounting to KRW 70,000,000 as collateral obligation against creditor ○ Bank, and KRW 64,244,60 as collateral obligation against creditor ○○ Bank.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 14, Gap evidence 2, 3, 5, Eul evidence 1 to 7, and the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

The plaintiff asserts that the above donation contract should be revoked and the defendant bears the duty of restitution to the plaintiff on the ground that the defendant's donation of the apartment of this case exceeds 408,622,592 won (the above tax liability of KRW 274,377,90 + KRW 70,000 + KRW 62,244,602, which is the aggregate of active property against ○○ Bank's secured debt against ○○ Bank's secured debt of KRW 70,000 + KRW 377,50,500), which is the aggregate of positive property against ○○ Bank's secured debt against ○○ Bank's secured debt of KRW 62,602) which is the negative property subject to division of property at the time of divorce.

B. Determination

Property division following divorce is a system that has the economic difficulty of the liquidation of the common property taken off through the cooperation of both parties during the marriage. Even if a debtor in excess of his/her debt is divorced and transfers a certain property to his/her spouse to the division of property, thereby reducing the joint security against the general creditor, barring any special circumstance to deem that such division of property is excessive beyond a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act, it shall not be subject to revocation by the creditor as a fraudulent act, unless there are special circumstances to deem that such division of property is excessive beyond a considerable degree pursuant to the purport of Article 839-2(2) of the Civil Act, but it shall not be subject to revocation. However, it shall not be deemed a legitimate division of property with respect to the portion exceeding a considerable degree, but it shall be subject to revocation.

In this case, there is no evidence to prove that each of the secured debt against ○○○ Bank and ○○ Bank is a small property subject to division of property. Rather, in full view of the entries and arguments in Evidence Nos. 2, 3, 2, 7, 8, 10, and 11, the Defendant reported a marriage with ○○ on May 15, 1998. The Defendant used the money deposited in the workplace for 7-8 years before the marriage to set the deposit money for the house with ○○○○○○ and the Defendant donated to ○○○○○○○ Bank, and ○○○○○○○○○○○ Bank. The Defendant purchased the apartment house of this case by adding the money deposited by ○○○○○○○○ and the Defendant’s 1 qualification certificate to 00,000 won after the marriage with 00-class 1 qualification certificate as an instructor at 000,0000 won for an apartment house and 200,000 won for a two-day,000-day, respectively.

Ultimately, there is no evidence to acknowledge that the instant donation contract was a division of property, and thus, it cannot be deemed that the instant donation contract constitutes a fraudulent act detrimental to the Plaintiff, a creditor.

Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.