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(영문) 서울중앙지방법원 2015. 10. 22. 선고 2014가합512768 판결

추심금을 지급하지 않을 정당한 사유가 없음[국승]

Title

There is no justifiable reason not to pay the collection amount.

Summary

Attachment of claims under Article 41 of the National Tax Collection Act is effective only when a garnishee is unable to repay the claims under seizure to the delinquent taxpayer, and only when it can be performed to the country which is the person entitled to collect the claims.

Related statutes

Article 42 of the National Tax Collection Act: Effect of seizure of claims

Cases

Seoul Central District Court 2014Kahap512768

Plaintiff

Korea

Defendant

Korea-China Urban Development Corporation

Conclusion of Pleadings

September 24, 2015

Imposition of Judgment

October 22, 2015

Text

1. For the Plaintiff KRW 550,678,230 and KRW 522,743,130 among them, the Defendant shall pay to the Plaintiff 5% interest per annum from August 20, 2015 to October 22, 2015, and KRW 20% per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

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

4. Paragraph 1 can be provisionally executed.

The defendant of the Gu office shall pay to the plaintiff 50,678,230 won with the interest of 550,678,230 won per annum from February 6, 2014 to the service date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

Reasons

1. Basic facts

A. △△ Co., Ltd. (hereinafter referred to as “△△△”), as an investor to the Defendant, held the shares issued by the Defendant corresponding to the shares of the Defendant.

B. On June 28, 2012, the Defendant was dissolved and the liquidation procedure was completed on June 28, 2012. The Defendant’s general meeting of shareholders determined the amount of residual property distribution to △△△△△,04,852, and the amount of residual property distribution is KRW 1,974,689,784 when deducting the obligation to refund the lease deposit, etc. to the Defendant in △△△△. The amount of residual property distribution is KRW 1,974,689,784 as of February 3, 2014.

- 3- The notice was served to the Defendant on February 4, 2014, which was served on February 5, 2014 on the amount of KRW 522,743,130, out of the amount of residual assets distributed to △△△.

D. Meanwhile, as of August 3, 2015, the amount of delinquent local taxes against the Defendant of △△○○○ was KRW 550,678,230, including the principal tax and the additional tax. As of August 3, 2015, the Plaintiff demanded payment of KRW 550,678,230 to the Defendant upon the application for modification of the purport of the claim made on August 18, 2015. The duplicate of the application for modification of the purport of the claim is

The defendant was served on August 19, 2015.

[Reasons for Recognition] Facts without dispute, Gap 1, 2 evidence, Gap 3-1 to 14, Gap 4-8 evidence, the purport of the whole pleadings

2. Determination as to the cause of action

A. The seizure of claims under Article 41 of the National Tax Collection Act prohibits all acts of disposal, such as repayment, collection, etc., against the creditor and debtor of the seized claims, and collects on behalf of the defaulted taxpayer. Thus, the garnishee cannot repay the attached claims to the defaulted taxpayer, and only can it be performed to the country that is the collection authority (see, e.g., Supreme Court Decision 9Da3686, May 14, 1999).

B. According to the above facts, unless there are special circumstances, the defendant pursuant to Article 41 of the National Tax Collection Act.

With respect to the amount of KRW 550,678,230, out of the unpaid residual assets distributed to the Plaintiff, and KRW 522,743,130, whichever is the day following the due date specified at the time of collection, with respect to the remaining KRW 27,935,100, which is the day following the due date specified at the time of collection, and with respect to the remaining KRW 27,935,100, from August 20, 2015, which is the day following the delivery of a copy of the application for amendment of the purport of the claim made from August 18, 2015, which is the day when the decision is rendered by the Defendant, that the dispute arises as to the scope of the obligation to be performed by the Defendant, shall be 5% per annum as stipulated in the Civil Act until October 22, 2015, and 20% per annum as of the

section 1.

3. Defendant’s assertion and judgment

A. The assertion

○○○○○ Co., Ltd. filed a lawsuit claiming direct distribution of residual property 2,49,04,852 won against the Defendant on the ground that it acquired the right to claim distribution of residual property against the Defendant in △△△, and won in the first instance trial, and seized and collected the Defendant’s deposit claims according to the judgment of execution. As such, unless the above judgment of the first instance is revoked finally, the Defendant does not remain to distribute residual property to △△ unless it is revoked finally.

B. Determination

In light of the overall purport of evidence No. 2 and arguments, the judgment of the court of first instance was revoked on the ground that ○○○○ Co., Ltd. filed a lawsuit against the Defendant for the payment of the remaining assets amounting to KRW 2,49,04,852 on the ground that the right to claim the distribution of the remaining assets belongs to himself/herself (Seoul Central District Court 2012 Gohap527391). However, the appellate court revoked the judgment of the court of first instance on the ground that the right to claim the distribution of remaining assets among the shareholder's rights against the Defendant of ○○○○○○ Co., Ltd. against ○○○○○○ Co., Ltd. (Seoul High Court 2013Na2014734). The judgment was dismissed and confirmed as it becomes final and conclusive (Supreme Court 2014Da2217222). The Defendant's assertion on the premise that the above judgment between the Defendant and the two industries was revoked as above.

4. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition.

- 5-. The remaining claims are dismissed as they are without merit. It is so decided as per Disposition.