Suwon District Court-2016-Ban-800934 ( November 9, 2017)

In the absence of any seizure, the request for distribution prior to the completion date shall be made, but the same effect as the demand for distribution shall accrue.

Where only a part of shares is seized and the whole is not seized, a request for delivery prior to the completion of the distribution shall be made for the part which has not been partially seized, but the same effect as the demand for distribution shall accrue.

Article 56 of the National Tax Collection Act

2017Na84235 Demurrer against distribution

O KimO

Korea

September 20, 2018

November 1, 2018

1. Revocation of a judgment of the first instance;

2. Of the distribution schedule prepared by the above court on November 23, 2016, the amount of dividend 50,15,720 won against the defendant shall be KRW 21,463,49, and the amount of dividend 63,383,261 won against the plaintiff shall be corrected to KRW 92,075,482.

Cheong-gu Office

It shall be as described in paragraphs (1) and (2).

1. Facts of recognition;

A. Details of the plaintiff's claims

1) The Plaintiff filed a lawsuit against Suwon District Court 201Gadan89176 against the Plaintiff, and the said court rendered a judgment on September 27, 2012 stating that the amount calculated at the rate of 20% per annum from August 22, 2012 to the date of complete payment, and the amount calculated at the rate of 1,042,260 won per annum from August 1, 2012 to the date of complete delivery of the building and the land. The above judgment became final and conclusive on October 23, 2012.

2) The Plaintiff filed a motion with the Suwon District Court for the determination of the amount of litigation costs in Suwon District Court No. 2012Kaba1077, Feb. 6, 2013, the said court rendered a ruling that “A” was KRW 2,926,580 in relation to the instant case, “A” and the said ruling became final and conclusive on February 23, 2013.

B. The plaintiff's objection to distribution

1) The Plaintiff filed an application for the commencement of compulsory auction against shares and each building listed in the separate sheet of real estate owned by Suwon District Court (hereinafter referred to as "share of this case" and "each building of this case"), as Suwon District Court No. 2013ta, 50731. On September 16, 2013, the said court rendered a decision to commence compulsory auction against the shares of this case and each building (hereinafter referred to as "auction of this case").

2) In the instant auction procedure, on October 20, 2016, the Plaintiff reported the amount of the claim as KRW 67,974,559 in total, but on November 4, 2016, the amount of the claim was KRW 92,854,082 (the amount of the claim was KRW 20,122,216 in the judgment of the court in the instant case, such as demolition of buildings, etc.) + the principal amount of KRW 20,122,216 in which payment was ordered in the judgment of the court; + interest KRW 16,913,686 in the return of unjust enrichment + KRW 52,113,00 in the return of unjust enrichment + the amount of KRW 52,926,580 in the determination of litigation costs under subparagraph 7 of the said Article + KRW 778,600 in the auction book, etc. excluding the amount of the auction proceeds, the Plaintiff was recognized as the Plaintiff’s credit amount.

3) On June 12, 2015, the aforementioned court determined the type of demand for distribution of the instant auction, and the Defendant submitted a written request for delivery to the above court on July 22, 2015, November 14, 2016, and November 17, 2016. Meanwhile, with respect to the instant shares, the attachment registration (hereinafter referred to as “instant attachment”) was completed as of June 28, 201, which was the Suwon District Court, the receipt9179, as of June 28, 2011, as of the Suwon District Court, the receipt of the instant shares, as of June 28, 201, and the Defendant’s disposition office, as of June 28, 2011.

4) Meanwhile, the appraisal value of the instant shares and each building during the instant auction procedure is KRW 349,535,760 (the instant shares KRW 7,638,00 + KRW 341,897,760). In the instant auction procedure, the minimum sale price at the instant auction procedure is KRW 349,535,760 on the first sale date, KRW 244,675,00 on the second sale date, KRW 171,273,00 on the third sale date, KRW 119,891,00 on the fourth sale date.

In addition, the Plaintiff was awarded the instant share and each of the buildings at the fourth sale date ( September 29, 2016) of the instant auction.

5) On November 23, 2016, the above court distributed KRW 323,970,00 to the applicant creditor, respectively, out of KRW 113,862,951 (the sales price of KRW 120,130,00 + the interest of KRW 1,536 - the enforcement cost of KRW 6,268,585), which is the date of distribution, to be distributed on November 23, 2016.

6) The Plaintiff’s legal representative raised an objection to KRW 28,692,221 out of the dividend amount ofCC 50,155,720 won on the aforementioned date of distribution, and filed the instant lawsuit on November 30, 2016, which is within one week thereafter.

[Ground of Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2, Gap evidence 9, Gap evidence 10-1 through 4, Gap evidence 13-5 through 8, 15 through 20, 23 through 27, 33, Eul evidence 7, and the purport of whole pleadings

2. Determination

A. Determination on the cause of the claim

1) A creditor who has an executory exemplification, a creditor who has effected a provisional seizure subsequent to the registration of a decision to commence the auction, or a creditor who has the right to demand a preferential reimbursement under the Civil Act, the Commercial Act and other Acts, may receive a distribution only once he/she has made a request for a distribution up to the completion period for the demand for distribution. In cases where a lawful demand for distribution has not been made, even a creditor who has the right to demand a preferential reimbursement under the substantive Acts, may not receive a distribution from the proceeds of sale, and even if he/she has made a demand for a distribution up to the completion period for the demand for distribution, where a creditor has made a demand for a partial distribution, he/she may not add or extend a claim that has not been made after the completion period for the demand for distribution. This is also the same in cases where a claim for an additional demand for distribution is stated in a written request for auction or a written request for a distribution submitted prior to the completion period for the demand for distribution, and such legal principle is equally applicable to the subject of the demand for distribution. Therefore, even if the tax claim may only be granted within the statutory period under Article 314(1).

Meanwhile, where a registration of seizure by a disposition on default has been completed prior to the date of the commencement of auction, even if the State does not make a request for delivery under Article 56 of the National Tax Collection Act, it becomes effective as a matter of course with the registration of distribution under the Civil Procedure Act. In this case, if the State fails to submit evidential documents to calculate the delinquent tax by the date of the successful bid, the court of auction shall investigate and distribute the delinquent tax pursuant to the relevant registration request. In such a case, even if there is a report of delinquent tax amount prior to the date of successful bid, the State may re- submit the corrected evidential documents, etc., until the distribution schedule is prepared, and the court of auction shall calculate the delinquent tax amount to be paid by the State by means of documents, evidence, etc. submitted by the time of preparation of the distribution schedule and evidence, etc. (Supreme Court Decision 2001Da1055, Jan. 25, 2002). Article 101 of the Civil Execution Act shall be conducted by an execution officer in accordance with the provisions of Articles 98 and 9.

(2) Where it is necessary to specify the price of each property in the sale procedure under paragraph (1), the ratio of the minimum sale price for each property shall be fixed, and the price of each property shall be the amount obtained by dividing the total price for each property by the ratio of the minimum sale price for each property. The same shall also apply where it is necessary to specify the costs for execution to be shared by each property.

2) According to the above facts, the Defendant filed a request for delivery only with the above court on July 22, 2015, the period for the demand for distribution of the instant shares, and the seizure of the instant shares was only made before the period for the demand for distribution. As such, the Defendant has the right to receive dividends only from the proceeds of sale of the instant shares and the proceeds of sale of each of the instant buildings. As such, the Defendant’s amount of dividends shall not exceed KRW 2,624,840 (total proceeds of sale 120,130,000 x the minimum sale ratio of the instant shares x 2.185%) and the minimum sale ratio of the instant shares.

3) Therefore, out of the dividend amount of KRW 50,155,720 against the Defendant pursuant to the instant auction procedure, KRW 28,692,221, which the Plaintiff raised an objection within the scope of KRW 47,530,880, excluding KRW 2,624,840, should be distributed to the Plaintiff. As such, the dividend amount of KRW 50,15,720 against the Defendant should be revised to KRW 21,463,49, KRW 21,493), and the dividend amount of KRW 63,383,261 against the Plaintiff should be revised to KRW 92,075,4824.

B. Judgment on the defendant's assertion

The Defendant asserts to the effect that the director of the tax office requested the issuance ofCC around April 14, 2015, which was before June 12, 2015, the dividend date, and that the seizure of the instant case on June 28, 2011, which was the previous date, constituted the right to receive dividends in the distribution procedure.

First of all, as to whether the Director of theCC requested issuance on or around April 14, 2015, the following items are insufficient to recognize the above documents only with Eul evidence 4 and Eul evidence 5-1. In particular, as to Eul evidence 5-1 claiming that the defendant is the defendant's request for delivery on April 14, 2015, the additional dues are '8,027,580 won'. Each written request for delivery submitted to the court of execution (as referred to in subparagraph 6-1 through 3), the additional dues are '9,262,590 won, '15,849, 310 won, '15,849,310 won', and '15,849,310 won', and the above argument by the defendant is without any reason to look at the above documents submitted to the court of execution without any reason.

In addition, as to the assertion on the seizure of this case, since the seizure of this case was limited to the share of this case, the defendant has the right to receive dividends only from the proceeds of sale of the share of this case and the proceeds of sale of each building of this case. Thus, the defendant's assertion on the premise that he has the right to receive dividends from the proceeds of sale of each building of this case is without merit.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted on the grounds of its reasoning. Since the judgment of the court of first instance is unfair on the grounds of its conclusion, the plaintiff's appeal is accepted, and the judgment of the court of first instance is revoked, and it is so decided as per Disposition by the court below on the correction of the distribution schedule as stated above 2. A.