Seocho-2013- Busan District Court-0828 (Law No. 16, 2014)

Action by an unauthorized representative is null and void, and the request by the plaintiff trustee for succession is unlawful.

Since the act of unauthorized Representation is finally null and void, it is no longer likely that it will be valid by the method of ratification, and even if the bankruptcy trustee who has the standing to be a party takes over the administrative litigation instituted by an unauthorized representative and recovers the defect, it shall, in principle, take over within 90 days from the date the bankruptcy trustee becomes aware

Article 59 of the Debtor Rehabilitation and Bankruptcy Act (Suspension, etc. of Litigation Proceedings)

2014Guhap2145 Revocation of Disposition of Imposition of Corporate Tax, etc.

○○○ Co., Ltd.

○ Head of tax office

oly 2017.13

October 17, 2017

1. The instant lawsuit shall be dismissed.

2. The plaintiff's request for continuation shall be dismissed;

3. Of the costs of lawsuit, the part arising from the principal lawsuit shall be borne by attorney Kim Jong-tae, and the part arising from the request for continuation shall be borne by the plaintiff trustee in bankruptcy

The disposition of the former Cheong-gu branch Defendant on August 13, 2012 against the Plaintiff, ① KRW 223,417,540, corporate tax for the year 2008, KRW 322,317,650, corporate tax for the year 2009, KRW 34,396,960, KRW 960, value-added tax for the year 2010, KRW 986,453,850, value-added tax for the year 208, KRW 1,084,028,830, value-added tax for the second year 2008, KRW 1,205, KRW 464, KRW 160, KRW 967, value-added tax for the year 209, KRW 70, KRW 70 for the year 209, KRW 2365, KRW 385, KRW 205, income amount for the year 2005, and KRW 36145.

1. Details of the disposition;

A. The relationship between the plaintiff, AAA, BB

1) 원고는 ○○ ○○군 □□면 ☆리 △△에서 선박부품 등을 제조하는 비상장법인인데, 크로아티아에서 조선소사업을 하기 위하여 상장을 할 필요가 있자 2006. 4.경 그 당시 상장회사이던 AAA 주식회사(이하, 'AAA'이라 한다)를 인수한 후 원고와 AAA를 합병하여 우회상장을 시도하였으나, AAA의 실적이 좋지 않아 결국 합병을 하지 못하였다. 2) 남aa은 원고와 AAA의 실질 사주인데, 2007. 7.경 당시 상장법인으로 의류 및 직물류를 생산하던 BBB 주식회사(이하 'BBB'이라 한다)를 인수한 후에 다시 원고와 합병을 통한 우회상장을 시도하기로 한 후, 회계법인 등의 실사를 거쳐서 BBB의 사주이던 황bb에게 140억 원을 지급한 후 주식을 인수하여 BBB의 경영권을 확보하였다. 남aa은 당시 BBB의 청바지 사업 부분을 황bb에게 양도하기로 하여 2007. 10.경에는 의류 생산을 위한 물적 설비를 30억 원에 황bb에게 양도하였고, BBB에서 주식회사 CCC를 분할 설립한 후 10억 원에 그 지분 100%를 황bb에게 양도하였다.

3) At that time, the Plaintiff, an unlisted corporation, had an audit performance for three years by an external auditor to list the unlisted corporation through a merger with a listed corporation. However, the Plaintiff had a situation where BB and a merger with the listed corporation, which lacks the audit performance for one year, should remain more than one year. BB is a listed corporation that has produced the original clothing, and the business portion was transferred to YB, and the minimum sales performance for maintaining the listed company should be maintained as it has no particular business performance after transferring the business portion to YB.

4) In order to maintain BB as a listing enterprise, the Nama distributed the Plaintiff’s production derivatives part of the Plaintiff’s toilet for ship use (pump) to produce from BB to maintain BB’s sales performance, and added vessel equipment manufacturing business, etc. to BB’s business objectives, and transferred BB’s headquarters to ○○○.

나. 원고와 BBB 간의 거래 1) 원고는 2007. 12. 21. 원고의 공장 중 ○○ ○○군 □□면 ☆리 ○○에 위치한 공장(이하 '제3공장'이라 한다)을 임대차보증금 10억 원에 BBB에 임대하는 임대차계약을 체결한 후 2007. 12. 31. 10억 원을 지급받았으며, 2008. 1. 2. ○○ ○○군 □□면 ☆리 □□에 있는 공장(이하 '제2공장'이라 한다)을 임대차보증금 14억 원에 임대하는 임대차 계약을 체결하였고, 2008. 4. 30. 임대차보증금 1억 원과 월 차임 1,300만원으로 임대차계약의 내용을 변경하였다.

2) The Plaintiff and BB made a statement of understanding on business cooperation on January 2, 2008, and concluded this Agreement within one year after BB agreed to pay the Plaintiff KRW 2,934,00,000 as advance payment.

3) In accordance with the above MOU, BB produced and supplied a toilet for vessel produced by the previous Plaintiff to the Plaintiff, and maintained it as it was, following transactions with the previous Plaintiff, and the Plaintiff reported value-added tax as being traded with BB, and based on which the Plaintiff reported corporate tax and value-added tax accordingly. A by means of a merger between the Plaintiff and BB was not successful due to global economic depression at that time, BB was delisting on March 26, 2010; BB was also sold to BC on April 11, 2010; BB was also delisted on May 13, 2010; BB was also delisted on May 13, 2010; BB was purchased from the Plaintiff and the Plaintiff’s sales tax invoice that was purchased from the Plaintiff to the Defendant in December 208, 201, and the Plaintiff’s sales tax invoice was confirmed to have been purchased between the Plaintiff and the Defendant’s sales tax invoice and the Plaintiff’s sales tax invoice.

B) From the proceeds from purchase account statement received by the Plaintiff from BB, KRW 2,30,939,00, which is the difference between the purchase account statement received by BB from the Plaintiff’s transaction partner, and KRW 1.3 billion, which is the Defendant’s false lease deposit, and KRW 53,690,000, which is the ordinary deposit and cash offset by advance on the statement of understanding, were disposed of as bonus to Southa, which was the actual representative of the Plaintiff.

2) The Plaintiff filed an objection against the above disposition on September 5, 2012, and the Defendant, as a result of a reinvestigation, excluded from the bonus disposition in Southerna’s total amount of KRW 1.3 billion as false deposit on November 23, 2012, and labor cost of KRW 954,772,00 as labor cost paid by BB to the Plaintiff’s employees, and the bonus disposition in the original disposition and the disposition after filing an objection are as follows:

E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on January 21, 2013. However, the Tax Tribunal dismissed the Plaintiff’s appeal on June 16, 2014, and the Plaintiff filed the instant lawsuit on September 2, 2014. (f) Delegation relation to administrative appeal and administrative litigation.

1) On January 21, 2013, at the time of the Plaintiff’s filing a request for a judgment with the Tax Tribunal on January 21, 2013, the Plaintiff’s representative director c has delegated the Plaintiff’s claim for a tax judgment to the tax accountant Kimdd, and Kimd has carried out a tax judgment with

2) On January 23, 2013, the Plaintiff was decided to commence the rehabilitation procedure for ○○○ Joint○○○○○○○○○○ on January 23, 2013, but the Plaintiff’s administrative appeal was not known during that procedure.

3) On June 12, 2013, the Plaintiff was declared bankrupt by △△△ District Court △△△△△ Group, and the Plaintiff was appointed as the Plaintiff’s trustee in bankruptcy. The Tax Tribunal did not take the procedure of suspending an administrative case under Article 350 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Bankruptcy Act”) on the grounds that the Plaintiff was unaware of the fact that he was declared bankrupt.

4) On June 16, 2014, the Tax Tribunal dismissed the Plaintiff’s request for adjudication, and Kimdd and Leee Tax Accountants, taking advantage of the fact that they possess a seal imprint certificate delivered from Bac, they sought the father’s Namg and Kim Young-gu, the Plaintiff’s legal representative, and delegated the institution of the instant administrative litigation.

5) On September 2, 2014, Kim Jong-chul filed the instant lawsuit.

G. Disposition by the trustee in bankruptcy with respect to the administrative litigation of this case

1) On October 2015, the Plaintiff’s trustee in bankruptcy heard the opinion that the administrative litigation of this case is in progress from the person in charge of △△ Tax secretary, and as a result of the Plaintiff’s questioning the representative director Dacc, he responded that he did not delegate the administrative litigation of this case to any person in charge of the administrative litigation of this case. On March 26, 2016, the instant lawsuit of this case was not brought by the bankruptcy trustee in bankruptcy in the court, but the lawsuit of this case was filed by stealing the name of Dac and submitted a written opinion that is unlawful.

2) On July 18, 2016, the Plaintiff’s bankruptcy trustee reversed the previous attitude, and submitted a written application to take over the instant lawsuit with the permission of the bankruptcy court.

H. On February 27, 2013, the Defendant reported the Plaintiff’s claim amounting to KRW 9,59,776,690 in the Plaintiff’s rehabilitation procedure. [Grounds for recognition] The Plaintiff’s claim amounting to KRW 9,59,76,690 in the Plaintiff’s claim amounting to KRW 12, 30, and 1 through 6 (including each number), the witness’s testimony, the entire purport of the pleading (including each number), the witness’s testimony, the entire purport of the pleading (including the Plaintiff’s written opinion and accompanying documents, the written opinion and accompanying documents, July 3, 2017).

It is as shown in the attached Form.

3. Whether the lawsuit of this case is legitimate

A. Before the instant lawsuit is brought, the following entities and procedural defects exist:

1) An administrative appeal was filed by disregarding the interruption of the administrative appeal.

Where rehabilitation procedures commence with respect to a debtor, under Article 59(1) of the Debtor Rehabilitation Act, and in the event of a declaration of bankruptcy, a lawsuit relating to the debtor’s property ought to be interrupted pursuant to Article 350(1) of the Debtor Rehabilitation Act. Nevertheless, in the instant case, since an administrative appeal was suspended and a tax appeal was rendered without taking over the lawsuit, the instant tax appeal contains an error of procedural violation.

2) The filing of the instant administrative litigation by an unauthorized representation is the filing of the instant lawsuit by an unauthorized representation in the following two aspects:

A) Pursuant to Articles 78 and 359 of the Debtor Rehabilitation Act, a lawsuit on the debtor’s property may be brought only by a custodian or a trustee in bankruptcy, since the standing to sue in rehabilitation proceedings or bankruptcy proceedings is limited to a custodian or a trustee in bankruptcy. Since the plaintiff’s bankruptcy proceedings were in progress at the time of the filing of the lawsuit in this case, only the trustee in bankruptcy may bring a lawsuit on the debtor’s property. However, a lawsuit that can be brought only by the trustee in bankruptcy may be brought by the attorney in bankruptcy who may bring a lawsuit against the trustee in bankruptcy with the knowledge of the trustee in bankruptcy. The lawsuit in this case is unlawful as a lawsuit by an unauthorized Representation.

B) Next, in relation to ○○○○○ Co., Ltd., a lawsuit is instituted by unauthorized Representation. Since e is comprehensively delegated by Dac as the Plaintiff’s representative director in his own written opinion, Doc asserts that the instant lawsuit was legally delegated by Doc, Kim Jong-young. However, since Doc denies denies the fact of comprehensive delegation, Doc denies’s assertion is not trustable. In addition, according to Article 690 of the Civil Act, e’s delegation is naturally terminated due to the bankruptcy of one of the parties. Thus, e’s delegation of this case to ○○○○○ Co., Ltd after June 12, 2013 when the Plaintiff was declared bankrupt, e is an act of unauthorized Representation, and e’s delegation of this case to ○○○○ after 12, 2013 is an act of attorney Kim Do○○○○○ Co., Ltd., the instant lawsuit is unlawful, unless there is any evidence

3) According to Articles 61(1)5 and 492 Subparag. 10 of the Debtor Rehabilitation Act, a custodian or a trustee in bankruptcy may file a lawsuit with the permission of the court when the debtor is in rehabilitation proceedings or bankruptcy proceedings. In this case, the Plaintiff did not obtain the permission of the court when the litigation of this case was filed.

4) The refusal to confirm the act of unauthorized Representation by the trustee in bankruptcy is presumed to have been premised on the fact that the attorney Kim Jong-tae filed the instant lawsuit in the capacity of the attorney in bankruptcy or ○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Company. The attorney Kim Jong-tae filed the instant lawsuit without any authorization from both the trustee in bankruptcy and the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Company. Therefore, in filing the instant lawsuit, the attorney Kim Jong-tae is an unauthorized representative in filing the instant lawsuit, and it is decided whether the lawsuit instituted by the trustee in bankruptcy is substantially null and void depending on the ratification of the trustee in bankruptcy who is the principal. However, as seen earlier, the

5) The time limit for filing a suit in taking over the trustee in bankruptcy; and

According to Article 56(3) of the Framework Act on National Taxes, an administrative litigation on national taxes must be filed within 90 days after the decision on a request for adjudication is notified. However, the Plaintiff’s bankruptcy trustee

On October 2015, the instant administrative appeal was already decided and notified, and the instant administrative litigation, dissatisfied with this decision, became known. However, the Plaintiff’s bankruptcy trustee stated that he/she took over the instant lawsuit with the permission of the court that should take place on July 18, 2016, which was 90 days from October 2015.

(b) Degree of the defect and the parts to complete the defect;

1) With respect to the defects in the above paragraphs (1), (2), and (3), the judgment imposed on the grounds for the suspension of ordinary litigation procedures shall not be deemed null and void as a matter of course. However, when a lawsuit is pending by an unauthorized representative, the defect may be cured due to the waiver or loss of the party’s right to ask questions. Accordingly, among the defects in the above paragraphs (a) in the case of an action under Paragraph (a), the defect may be completely cured by the Plaintiff’s application for the continuation of the litigation procedures by the Plaintiff’s trustee in bankruptcy.

2) According to Article 130 of the Civil Act rejecting the ratification of an invalidation act, a contract made by a person without the right of representation by another person as his/her agent shall not have the effect on the principal unless the ratification is made. Although the validity of an invalidation act is null and void, it may be effective by the ratification of the principal, and where the principal refuses ratification, it shall be confirmed retrospectively effective by the ratification of the principal, and where the principal refuses ratification, it shall be null and void definitely. In this case, as long as the bankruptcy trustee presented a written opinion that the lawsuit in this case was not instituted by the bankruptcy trustee on March 26, 2016, and is unlawful as it was filed without the delegation of the representative director of the Plaintiff, it shall be deemed to have refused the ratification of the act of unauthorized representation by the attorney Kim Jong-hwan (In addition, according to the relevant public document sent to Kim Jong-soo, theff of the lawsuit in this case shall not be deemed null and void by the attorney's refusal of ratification of the lawsuit in this case.

3) Defect in non-compliance with the filing period

A) A revocation lawsuit as referred to in Article 20(1) and (3) of the Administrative Litigation Act shall be instituted within 90 days from the date the bankruptcy trustee becomes aware of the disposition, etc. The reason is that an administrative disposition is related to the public interest and it is necessary to promptly confirm it as soon as possible. This legal doctrine applies to a case where an administrative litigation is filed by the debtor against whom the bankruptcy is declared without the involvement of the bankruptcy trustee, or where a third party files an administrative litigation as the non-exclusive representative of the debtor against whom the bankruptcy is declared. In other words, even where the bankruptcy trustee takes over the administrative litigation instituted by a non-party representative and recovers the defect, it shall be taken over within 90 days from the date the bankruptcy trustee becomes aware as a matter of principle (On the other hand, this legal doctrine differs from the civil litigation in which only private interest

B) Meanwhile, in the case of Article 56(3) of the Framework Act on National Taxes, 90 days shall be calculated from the date of notification. However, in the case of ratification of the act of unauthorized representation, the trustee in bankruptcy did not notify the trustee in bankruptcy of the decision. Therefore, the period of filing a lawsuit shall be calculated based on 90 days from the date

C) The Plaintiff’s trustee in bankruptcy filed a motion to take over the instant lawsuit with the permission from the court on July 18, 2016, which was past 90 days from October 2015 to October 10, 2016, but this is an illegal request for resumption with the lapse of the filing period, and thus, cannot be accepted.

4. Conclusion

Therefore, the lawsuit of this case is null and void by an unauthorized representative, and it is dismissed by the plaintiff trustee, and the request for succession is unlawful and dismissed. Of the litigation costs, the part arising from the principal lawsuit shall be borne by the attorney Kim Jong-si pursuant to Articles 108 and 107 (2) of the Civil Procedure Act, and the part arising from the office of the takeover is borne by the plaintiff trustee. It is so decided as per Disposition by the plaintiff.