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(영문) 서울고등법원 2013. 11. 28. 선고 2013누19990 판결

공탁금 회수청구권이 있음을 알았다고 보여 압류를 즉시 해제함[국패]

Case Number of the immediately preceding lawsuit

Seoul Administrative Court 2012Guhap34457 (2013.06.07)

Title

It is found that the right to claim the deposit has been known, and the seizure is immediately released.

Summary

(1) The plaintiff filed a lawsuit on the ownership of the right to claim the recovery of deposit money against the delinquent taxpayer and received a favorable judgment and knew that the right to claim the recovery of deposit money was against the plaintiffs at the time of seizure. Therefore, the plaintiff is obliged to immediately release the seizure.

Related statutes

Article 53 of the National Tax Collection Act

Cases

2013Nu1990 Revocation of revocation of an application to revoke the attachment disposition.

Plaintiff, Appellant

1. AA 2. DuB

Defendant, appellant and appellant

Head of Geumcheon Tax Office

Judgment of the first instance court

Seoul Administrative Court Decision 2012Guhap34457 decided June 7, 2013

Conclusion of Pleadings

November 14, 2013

Imposition of Judgment

November 28, 2013

Text

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

1. Purport of claim

A. The primary purport of the claim is revoked, among the claims listed in the separate sheet against the plaintiffs on September 10, 2012, the rejection disposition against OO members is revoked.

B. Preliminary claim: It is confirmed that the claim stated in the separate sheet is against the plaintiffs.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

Reasons

1. Quotation of judgment of the first instance;

The reasoning of this court's judgment is as follows, except for the addition of the judgment of the defendant in the appellate court to the judgment of the first instance court, and thus, it is consistent with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Judgment on the defendant's assertion

A. The defendant's assertion

① A final and conclusive judgment in favor of the plaintiffs (Seoul Central District Court Decision 201Gahap10833, Dec. 15, 201) in favor of the plaintiffs filed a lawsuit seeking confirmation of the absence of the right to claim for recovery of deposit money (Seoul Central District Court Decision 2011Gahap1083, Dec. 15, 201) is a judgment by confession, not only recognized that the plaintiffs have the right to claim for recovery of deposit of this case at the time of the seizure of this case, but also that the res judicata effect does not reach the defendant, so the plaintiffs cannot be deemed to have satisfied the requirements for cancellation of attachment under Article 53 (1) 3 of the National Tax Collection Act. Therefore, the plaintiffs cannot be deemed to have paid the deposit of this case, and since the plaintiffs andCC have the legal effect of suspending compulsory execution by depositing the deposit of this case under the joint name, the plaintiffs andCC cannot be deemed to have considerable grounds for the plaintiffs' assertion that the right to claim for recovery of deposit of this case has satisfied the requirements for cancellation of attachment.

1) In full view of the purport of the entire pleadings, the following facts can be acknowledged in each entry of Gap evidence Nos. 1, 3 through 19, and 25 (including branch numbers).

"A) On March 14, 2007, 2007, the Plaintiff YangB transferred the management rights to 4,450,650 shares issued by Daman Investment Co., Ltd. (hereinafter referred to as "DDR"), and DDR transferred its shares and management rights to E, bookF, Park GG (hereinafter referred to as "E, etc.") again on May 2007, and this E took office as the representative director of CC on July 5, 2007. The Plaintiff YangB, while maintaining the status of the representative director of CC, retired from office on February 20, 208, 2008, E transferred the Plaintiff’s medical device division from 2007 to 30.7.27, 2007, 2007, and 200.7.27, 2007, 201.

CC was established by AA through physical division as above, and the KOSDAQ was abolished on April 2009.

B) On August 2, 2003, HHmercar et al. filed a lawsuit againstCC (Seoul Central District Court 2003Gahap57616) and the Plaintiff YangB (Seoul Central District Court 2003Gahap57616). However, the appellate court (Seoul High Court 2006Na21479) divided AA (AA) and transferred the medical device’s medical device’s division, thereby succeeding the above lawsuit’s liability that belongs to the above business division, and accordingly, A came to have taken over the said lawsuit upon the application of HHmerC et al. (the Plaintiff of the lawsuit).

C) The instant deposit was made out of the Plaintiff both BB’s funds, and various expenses, such as attorney fees, related to the said lawsuit, were paid by both BB as the representative director.

D) At the lawsuit of a third party (Seoul Central District Court 2012Gahap12981), the plaintiffs filed against III and the defendant with respect to the right to claim for recovery of the instant deposit, III did not appear on the date of pleading even after the notice of the date of pleading was received normally by registered mail. Accordingly, the plaintiffs received a favorable judgment against III as to the said lawsuit. While the Korea Technology Credit Guarantee Fund and Seoul Special Metropolitan City were also the defendants in the said lawsuit, the Korea Technology Credit Guarantee Fund and Seoul Special Metropolitan City voluntarily released the seizure on the grounds that the right to claim for recovery of the instant deposit did not exist, and accordingly the plaintiffs voluntarily withdrawn the lawsuit against the Korea Technology Credit Guarantee Fund and Seoul Special Metropolitan City.

E) In a lawsuit (Seoul Central District Court 201Gahap110833) to confirm the absence of the right to recover the deposit filed by the Plaintiffs againstCC,CC also received the notice of the date of pleading by registered mail and did not appear on the date of pleading. Accordingly, the Plaintiffs were sentenced to a favorable judgment by the confession.

"2) The facts acknowledged by the first instance court as above and the following facts known by the above facts and relevant Acts and subordinate statutes are completely separated from the management ofCC and AA as the establishment of AA was fully separated from the date of pleading.CC has managed each EB, and accordingly, the interests ofCC (E) and AB are deemed to have been extinguished. The medical device division ofCC has been transferred to AA in the process, and HHD, etc. has taken over a claim suit such as the prohibition of copyright infringement filed againstCC. Accordingly, it is reasonable and reasonable to acknowledge the plaintiffs' right to claim the cancellation of the registered deposit of this case (the plaintiffs' right to claim the cancellation of the registered deposit of this case) in light of the above facts and the lack of the plaintiffs' right to claim the recovery of the deposit of this case, and it is not reasonable to acknowledge the plaintiffs' right to claim the cancellation of the registered deposit of this case (the plaintiffs' right to claim the cancellation of the registered mail of this case).

3. Conclusion

Since the judgment of the first instance is justifiable, the defendant's appeal is dismissed as it is groundless.