Jeong-Eup 2007Kadan10663 (Law No. 912, Dec. 2, 2008)

Whether an obligee constitutes a bona fide beneficiary who was unaware of the circumstance under which the obligee is harmed.

In light of the timing of sale of real estate and the method of payment of the purchase price in the economic situation of the Defendant, at the time, the Defendant seems to have sufficiently known the fact that the instant sales contract would prejudice the Plaintiff, a creditor

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

1. Revocation of a judgment of the first instance;

2. A. The sales contract concluded on December 6, 2006 between the defendant and the non-party Kim Jong-jin is revoked.

B. The defendant will implement the registration procedure for transfer of ownership on each of the above real estate to the non-party Kim Jong-jin for restitution due to the revocation of fraudulent act.

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

The same shall apply to the order.

1. Basic facts

(a) A taxation claim;

From December 2005 to July 2006, 006, Kim Jin operated the amusement room called ○○○ Man-Madra Gameland. A tax investigation was conducted on November 28, 2006 due to the suspicion of tax evasion of global income tax and value-added tax on the purchase of gift certificates provided by the said amusement room, and as a result of the tax investigation on February 28, 2007, received a notice to the effect that the total amount of global income tax and value-added tax of KRW 502,876,720 is paid by February 28, 2007 as follows.

(b) An act of disposing of property by Kim Jin;

On December 6, 2006, Kim J-jin entered into a sales contract with the defendant on the purchase price of KRW 21,208,000 with respect to each of the real estate listed in the separate sheet owned by him (hereinafter referred to as the "real estate of this case"), and completed the registration of ownership transfer as the receipt of No. 18973 on December 8, 2006 to the defendant.

(c) The status of excess of the obligation of Kim Jin;

At the time of the instant sales contract, Kim Jin owned active property (real estate) equivalent to the total appraised amount of KRW 43,861,043 according to the officially announced land price in 2006, including the instant real estate. However, as seen above, the delinquent amount imposed on Kim Jin exceeded the liability amount of KRW 502,876,720 in total.

[Evidence] Facts without dispute, Gap evidence Nos. 1-3, Gap evidence Nos. 2-1 through 5, Gap evidence Nos. 4, 5, Gap evidence Nos. 6-1 through 3, Gap evidence Nos. 7-1 through 5, Gap evidence Nos. 9-1 through 10, Gap evidence Nos. 10, Gap evidence Nos. 10, and the purport of the whole pleadings

2. The assertion and judgment

(a) Occurrence of preserved claims;

In principle, a claim that can be protected by the obligee’s right of revocation should have arisen before an obligor performs a juristic act for the purpose of property right with the knowledge that it would prejudice the obligee. However, at the time of the juristic act, there has already been established a legal relationship that serves as the basis of establishment of the claim, and there is high probability that the claim would have been created in the near future by such legal relationship, and in a case where a claim is actually realized 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 2000Da64038, Nov. 26,

In full view of the overall purport of the arguments in the above evidence, although Kimjin did not receive a notice of taxation on the tax amount in arrears at the time of December 6, 2006, which was the date of the sales contract for the real estate of this case, there was a high probability that the tax liability for each of the above taxes was established before the date of the above sales contract, and that Kimjin had already been subject to the tax investigation on November 28, 2006, and that there was a tax amount in arrears in the near future. In fact, the notice of taxation was issued more than two months after the date of the above sales contract and the possibility was realized, the Plaintiff's tax claim against Kimjin-jin can be the preserved claim of this case.

(b) The establishment of fraudulent acts and intent to injure them;

The debtor's act of selling real estate, which is one of his own property, and replacing it with or transferring it to another person without compensation, becomes a fraudulent act against the creditor, barring special circumstances. Thus, the debtor's intent of deception is presumed, and the burden of proving that the purchaser or the transferor did not have bad faith is the beneficiary (see, e.g., Supreme Court Decision 2000Da41875, Apr. 24, 2001).

In the instant case, the act of Kim Jong-jin, who was in excess of his debt, sold the instant real estate to the Defendant, which is the real property practically only its own property, constitutes a fraudulent act against the Plaintiff, a creditor, as an act of reducing common security of ordinary creditors, barring any special circumstance. Meanwhile, the Defendant’s bad faith

C. Determination on the Defendant’s bona fide assertion

The defendant asserts that since the defendant concluded a sales contract with Kim Jin-jin on the instant real estate at a reasonable price, and transferred the purchase price in full to the account of Kim Jin-gu Kim Jin-jin Kim Jin-jin, designated by Kim Jin-jin, and did not know at all the time that the plaintiff, the creditor, was harmed,

According to the evidence No. 1-1 and No. 2, the defendant transferred KRW 21,00,00 to the bank account in this column on February 8, 2007. Such circumstance alone is insufficient to recognize that the defendant was bona fide, and there is no other evidence to acknowledge otherwise. Rather, the defendant and Kim Jin maintained a pro-friendly relationship, such as cultivating the real estate in this case owned by Kim Jin from 1997 to 197. At the time of the conclusion of the sales contract, the defendant knew that he sold the real estate of this case to a level of 60,000,000 won, for sale and purchase of the real estate of this case. However, at the time of the conclusion of the sales contract, the defendant was aware that 20,000 won was transferred to 30,000 won, which was the first sale and sale method of the real estate of this case. The defendant did not claim that the sale and sale method of the real estate of this case was transferred to 200,000 won.

(d) Methods of reinstatement;

If a creditor’s revocation of fraudulent act and a claim for restitution are acknowledged, the beneficiary is obligated to return the subject matter of the fraudulent act to the debtor as restitution, and if it is impossible or considerably difficult to return the subject matter of the fraudulent act, the beneficiary is obligated to compensate for the equivalent amount of the value of the subject matter of the fraudulent act as the performance of the duty to restore. Here, where the return of the subject matter is impossible or considerably difficult, it refers not to cases where the return of the subject matter is not simply absolute or physical impossibility, but to cases where the realization of the performance cannot be expected in light of the concept of transaction. Thus, in cases where a third party acquires the subject matter of the fraudulent act after the fraudulent act, the creditor may seek compensation against the beneficiary in lieu of the return of the subject matter, unless there are special circumstances, such as that the beneficiary can transfer the subject matter to the original condition without any restriction such as mortgage. However, the creditor cannot be deemed to have sought compensation for the return of the subject matter to the original condition in lieu of his/her own risk or disadvantage. In such cases, the creditor can seek the transfer registration of the subject matter directly against the beneficiary (see Supreme Court Decision 2000.

According to the health stand and evidence No. 2-1 through No. 5 as to the instant case, it can be recognized that the establishment registration of a collateral security right to the instant real estate was completed on April 18, 2007, which was after the instant contract was concluded on April 18, 2007, with regard to the instant real estate. As such, the Plaintiff may file a claim for the return of the original property on the ground that a third party acquired a collateral security right to the instant real estate after the establishment of a fraudulent act, on the ground that the said third party acquired a collateral security right, but it is not allowed for the Plaintiff to seek the return of the original property at his own risk or disadvantage, and thus, the Plaintiff’s claim for the return of the original property should be made by means of restitution as the Plaintiff seeks.

3. Conclusion

Therefore, the above sales contract on the real estate between the defendant and Kim Jin constitutes a fraudulent act, and the defendant is obligated to implement the procedure for ownership transfer registration on the real estate of this case as restitution following the cancellation of fraudulent act, so the plaintiff's claim of this case is justified, and the judgment of the court of first instance is unfair in conclusion, and it is so decided as per Disposition by the plaintiff.