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

Cheongju District Court Decision 2002Da18565 delivered on January 14, 2004 against the defendant's plaintiff is dismissed.

2. Purport of appeal

The part against the plaintiff in the judgment of the court of first instance shall be revoked. The defendant's Cheongju District Court Decision 2002Da18565 delivered on January 14, 2004 against the plaintiff shall not be subject to compulsory execution under the judgment of the court of first instance.

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in the entries in Gap evidence 1-1-2, Eul evidence 2-1-3, Eul evidence 1-2, Eul evidence 2-2, and Eul evidence 2.

A. On April 11, 200, the Plaintiff entered into an accident insurance contract with the Defendant to pay activity compensation funds according to the disability grade when the Defendant became a state of disability of a specific grade in the disability classification table due to the direct cause of the “traffic disaster”. On the other hand, on April 13, 2001, the Plaintiff accepted the “non-dividend dividends, El branch Capital, and accident insurance contract” which entered into between Hyundai Life Insurance Co., Ltd. and the insured on May 30, 2000 between EL branch Capital Co., Ltd. and the insured on May 30, 200 and the Defendant suffered disability due to a holiday traffic accident (hereinafter each of the above insurance contracts referred to as “each of the instant insurance contracts”).

B. On October 3, 200, the defendant around 16:30 on October 3, 200, driving a motor vehicle owned by himself (motor vehicle number omitted) in the vicinity of the Cheongju-dong, Cheongju-dong, Cheongju-dong, which caused a traffic accident that shocks the previous motor vehicle, and due to this, the defendant suffered obstacles such as the 4-5-day nuclear escape certificate between the 4-5-day trend falling under Grade V of the disability Rating Table and the 5-5-Tin-1, the nuclear escape certificate between the 5th century and the 1,00.

C. Although the Defendant claimed for the payment of insurance money to the Plaintiff under each insurance contract of this case, the Plaintiff refused to pay it and filed a lawsuit for confirmation of the existence of the obligation with Cheongju District Court 2002Kadan1168, the Defendant filed a lawsuit against the Plaintiff for a counterclaim against the Plaintiff, and on January 14, 2004, the Defendant rendered a final judgment of 200 per annum from July 14, 2002 to January 14, 2004 (hereinafter “the Plaintiff”) that determined that “the Plaintiff’s appeal was dismissed as to KRW 16,00,000 and KRW 15,000 among them, from April 22, 2001 to KRW 1,000,000, and from the next day to the date of full payment (hereinafter “the Plaintiff’s appeal”) 60% per annum and 200 per annum from the date of complete payment, the Defendant’s appeal became final and conclusive (hereinafter “the Plaintiff’s appeal”).

D. On October 7, 2004, the Plaintiff paid the principal ordered in the order of the instant insurance contract (hereinafter “instant insurance proceeds”) and damages for delay until the date of full payment thereof (hereinafter “instant damages for delay”). The Plaintiff withheld KRW 1,075,650 as income tax and resident tax on the instant damages for delay, and paid only KRW 19,813,775 to the Defendant.

2. Judgment on the defendant's main defense

The defendant defense to the purport that the plaintiff's claim of this case seeking non-permission of compulsory execution based on the judgment of the insurance money of this case is unlawful because it goes against the res judicata of the judgment of the insurance money of this case. However, the plaintiff filed a lawsuit of objection of this case by asserting that the plaintiff paid the full amount after the judgment of the insurance money of this case was lost. Thus, the defendant'

3. The plaintiff's assertion and judgment

A. Summary of the plaintiff's assertion

The plaintiff asserts that the damages for delay of this case ordered payment in the insurance contract of this case shall be "compensation for breach of contract" under Article 21 (1) 10 of the Income Tax Act, which is subject to withholding. Thus, in paying the amount based on the insurance contract of this case to the defendant, it is just that the plaintiff deducted the withholding amount from the damages for delay of this case. Therefore, the plaintiff shall not be subject to compulsory execution based on the insurance contract of this case since the plaintiff paid all the amount based on the insurance contract of this case to the defendant.

B. Relevant provisions

Article 21(1)10 of the Income Tax Act is one of the other incomes, and Article 41(3) of the Enforcement Decree of the Income Tax Act provides that “the penalty or compensation received due to a breach or cancellation of a contract,” and Article 21(1)10 of the Income Tax Act provides that “the penalty or compensation” means the compensation received due to a breach or termination of a contract on the property right, which refers to the value of the money or other goods to compensate for the damages exceeding the damages to the payment itself which forms the contents of the original contract, regardless of the title thereof.

(c) Markets:

(1) The purport of Article 41 (3) of the Enforcement Decree of the Income Tax Act limiting the "amount of penalty and compensation" under Article 21 (1) 10 of the Income Tax Act to "compensation for damage caused by breach or termination of a contract on property right" is that where monetary claims themselves are not subject to income tax, such as compensation for damages or consolation money for infringement of non-property interest such as personal interests such as life and body, family rights, etc., it is reasonable to view that the compensation for delay is not subject to income tax.

However, the insurance money of this case is paid by the defendant for physical injuries caused directly by a traffic accident, and it cannot be deemed that it is subject to income tax, and the compensation for delay also does not be subject to income tax. Thus, the compensation for delay of this case cannot be withheld by considering it as other income.

(2) Meanwhile, on October 7, 2004, the amount to be paid by the Plaintiff to the Defendant at the time of payment of the insurance proceeds of this case (i) the principal amount of KRW 16,00,00,00, and (ii) the damages for delay from April 22, 2001 to October 7, 2004 4,65,341 (=6% + 60% + 15,000 + 15,000 + 265% of the principal amount 】 206% of the above amount to be appropriated for payment of KRW 367/365,365,365, 200, 205 x 205% of the principal amount to be appropriated for payment of KRW 360,675,365,360,360,360,365, 205 x 205% of the above principal amount to be appropriated for payment of KRW 1675,3605% of the Civil Act.

Therefore, the judgment of this case shall have executory power within the range of 1,078,277 won in balance of the above principal and damages for delay at the rate of 20% per annum from October 8, 2004 to the day of full payment. Thus, the plaintiff's claim of this case shall be justified only for the part exceeding the above amount.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is just in conclusion, the plaintiff's appeal is dismissed.

Judges Kim Jong-won (Presiding Judge)