Bankruptcy Trustee of Chang Chang City Development Corporation for Bankruptcy Obligor

Korea

July 21, 2014

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 3,747,273,290 won with 5% interest per annum from December 6, 2013 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. The Chang Chang City Development Co., Ltd. (hereinafter referred to as the “Yong Chang City Development”) is an executor who has been running a new apartment construction project of Ulsan City △△△△△△△△△△△ (hereinafter referred to as the “instant new construction project”) on the ground of the land owned by it from around 2006 and 234 lots (location omitted) (hereinafter referred to as the “instant project site”), and it is the construction works of the said new apartment construction project.

B. The Korea Housing Guarantee Co., Ltd. (hereinafter “Korea Housing Guarantee Co., Ltd.”) has guaranteed the sale of the instant new construction project, and entered into a transfer security agreement on 163 parcels of land among the instant construction site with the Chang Chang Urban Development, and completed the said 163 parcels of land as to real estate, and completed a trust registration in the future of the house guarantee registration on the said 163 parcels of land. The Chang Chang Urban Development completed a trust registration on the remaining 69 parcels of land among the remaining construction sites, and is proceeding with the instant new construction project.

C. On October 1, 2009, the construction was suspended due to the bankruptcy of the Jinjin on October 1, 2009, and the Korea Housing Guarantee was returned to the buyer on November 19, 2009.

D. On February 24, 2010, the Korea Housing Guarantee received a decision of provisional disposition on the prohibition of disposal as the Ulsan District Court 2009Kahap1203 on the apartment building in △△△△△△△ apartment on the ground that the right to claim the registration of transfer of ownership according to the security transfer agreement entered into with the development of Chang Chang City was a preserved right, and on February 25, 2010, the registration of ownership preservation was completed in the future for the development of Chang Chang Urban Development on the ground that the provisional disposition registration was entrusted.

마. 피고는 유창도시개발이 부가가치세 등 국세를 체납하자, 2010. 9. 10. 위 아파트 중 □□□동 ◇◇◇호, ☆☆☆☆호, ▽▽▽▽호, ◎◎◎◎호, ◁◁◁동 ▷▷▷▷호, ♤♤♤♤호, ♡♡♡♡호, ●●●동 ▲▲▲▲호, ■■■■호, ◆◆◆◆호(이하 ‘이 사건 아파트’라고만 한다)를 압류하였다.

F. Chang City Development was declared bankrupt on November 23, 2010 by the Seoul Central District Court No. 2010Hahap100 on the same day, and the Plaintiff was appointed as a trustee in bankruptcy on the same day (hereinafter “Plaintiff, regardless of whether it was before or after the bankruptcy of Chang City Development”), and the Plaintiff, a trustee in bankruptcy, was appointed as a trustee in bankruptcy.

G. On October 201, the Plaintiff entered into a collective sale agreement between the Korea Housing Guarantee and the Korea Housing Guarantee and the Plaintiff to sell the business site owned by the Plaintiff, the apartment building in △△△△△△△, the housing site registered in trust in the future of the Korea Housing Guarantee and distribute the proceeds therefrom. After that, the Plaintiff and the Korea Housing Guarantee entered into a sales agreement between the Non-permanent Housing Co., Ltd. (hereinafter “Non-permanent Housing”) on July 2, 2012 for the entire business site and the apartment building in △△△△△△△△△△△△△ (hereinafter “instant sales agreement”).

H. On April 2, 2013, the Plaintiff and the Korea Housing Guarantee completed the registration of ownership transfer concerning the entire building site of this case and △△△△△△△△△△ apartment on the same day when receiving the sales price from the vice-permanent housing.

I. On April 2, 2013, the Defendant filed a claim with the Plaintiff for the payment of delinquent tax amount, and among which, the details on value-added tax are as follows.

Serial No. 1201-641, 0102 November 25, 2010 on December 31, 2010, 2010.276, 191, 467, 177, 7902-641,0060 on December 31, 2012, 2006: 610,691,691, 15013, 113, 588, 5003206, 206, 20106, 308, 2006-7-7-41037-410373, 2010, 305, 206, 305, 206, 305, 106, 15, 201-14, 106, 2014;

(j) On April 15, 2013, with the permission of the bankruptcy court on April 15, 2013, the Plaintiff paid to the Defendant the sum of KRW 15,961,48,340 (i.e., the principal of internal tax 1,276,191,340, and KRW 610,691,150, and KRW 2,730, the principal of internal tax 2,730, and KRW 3,074,510,510, and KRW 14,561,486,950, and KRW 1,276,191,340 + KRW 610,691,150 + KRW 91,130 + KRW 2,730 + KRW 14,574,600, and KRW 600) of the principal internal tax.

(k) On April 15, 2013 and April 16, 2013, the Plaintiff fully repaid the amount of taxes corresponding to estate claims among the amount of delinquent taxes to the Defendant. As such, the Plaintiff requested the release of the seizure of the instant apartment. However, on April 18, 2013, the Defendant responded that the amount of national taxes in arrears remains and thus the release of the seizure cannot be made.

(l) Accordingly, on July 2, 2013, the Plaintiff filed a tax appeal with the Tax Tribunal on the grounds that the portion of the additional claim that occurred after the declaration of bankruptcy constitutes a subordinate bankruptcy claim rather than a estate claim under the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”). Since the Plaintiff fully pays the Defendant the tax amount corresponding to the estate claim out of the delinquent tax amount, the Defendant filed a tax appeal claiming that the attached portion of the subordinate bankruptcy claim should be revoked on the instant apartment because it is impossible to assert the validity based on the disposition on default that was previously declared by the bankruptcy foundation. However, the Plaintiff was dismissed on November 13, 2013.

(m) On November 14, 2013, the Plaintiff notified the Defendant that the remaining tax claims in arrears fall under lower-ranking bankruptcy claims or not estate claims, but bankruptcy claims are not bankruptcy claims. However, on the instant sales contract, the Plaintiff is scheduled to pay the remaining taxes in arrears for the housing that is the purchaser of the instant sales contract. However, the Plaintiff notified the Defendant that the Defendant may file a lawsuit, such as a claim for return of unjust enrichment

(n) On December 5, 2013, the Plaintiff paid the remainder tax amount of KRW 3,747,273,290 (=Additional 467,177,790, 113,58,500, 200 + Additional 3,124,560,80, 400 + Principal 36,859,630, 570, 570, 200 (including additional dues increased after April 2, 2013, 201), among the delinquent tax amount in arrears; the Defendant released the attachment of the instant apartment.

[Reasons for Recognition] Facts without dispute, Gap 1 through 8, 10 through 13 (including each number), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) Of the delinquent tax amount indicated in the table of delinquent taxes, the sum of KRW 1,276,191,340 of the principal amount of internal tax 1,276,191,340 of the tax amount in arrears 2; KRW 610,691,150 of the principal amount of internal tax 3; KRW 2,130 of the principal amount of internal tax 91,130; and KRW 14,074,510,60 of the principal amount of internal tax 4; and KRW 15,961,486,950 of the principal amount of internal tax 1,276,191,340 of the tax amount in arrears; + KRW 610,691,150 of the principal amount in arrears + KRW 91,130 of the tax amount in arrears + KRW 14,074,510,600 of the additional tax amount in arrears 14,000 of the tax amount in arrears.

However, on April 15, 2013, the Defendant did not release the attachment of the instant apartment even though the Plaintiff was fully reimbursed the amount of KRW 15,961,486,950 corresponding to the estate claim. On December 5, 2013, the Defendant received from the Plaintiff the repayment of the amount of KRW 3,747,273,290, not the estate claim, but the lower-ranking bankruptcy claim or estate claim, not the estate claim, but the estate claim, not the bankruptcy claim, without any legal grounds, from the Plaintiff, and obtained profits from the repayment of the total amount of KRW 3,747,273,29

Therefore, the defendant is obligated to pay to the plaintiff 3,747,273,290 won as unjust enrichment and damages for delay.

2) In addition, the Defendant committed an unlawful act that did not release the seizure of the instant apartment even though he was paid the delinquent tax amount corresponding to the estate claim by intention or negligence, and caused the Plaintiff to pay the Defendant the tax of KRW 3,747,273,290 on the instant apartment, thereby making the Defendant gain a profit equivalent to the said amount. As such, the Defendant is obliged to pay the damages for the unlawful act and the damages for delay.

B. Defendant’s assertion

① The Defendant’s additional claim against the Plaintiff, which occurred after the declaration of bankruptcy, also constitutes estate claims. ② Even if additional claim arising after the declaration of bankruptcy is not an estate claim, the effect of seizure on the apartment of this case by the Defendant, even though it is not an estate claim, cannot be deemed that the Plaintiff was repaid the amount of delinquent taxes on the ground that the Defendant received the entire amount of delinquent taxes from the Plaintiff, and thus, it cannot be deemed that the Defendant received the repayment of the amount of delinquent taxes without any legal grounds. Therefore, the obligation to return unjust enrichment from the Defendant is not established.

3. Determination

A. Relevant provisions

The provisions of the laws relating to this case shall be as follows:

Article 37 (Subordinate Claim)

The following claims shall be subordinate to other bankruptcy claims:

2. The amount of damages and penalty resulting from nonperformance after bankruptcy is declared;

Article 38 (Scope of Estate Claims)

The following claims shall be regarded as estate claims:

2. Claims that can be collected according to the example of the National Tax Collection Act or the collection of national taxes: Provided, That any claims on grounds arising after bankruptcy is declared shall be limited to those arising against the bankrupt estate; and

= Debtor Rehabilitation Act>

Article 46 (Subordinate Bankruptcy Claims)

(1) The following claims shall constitute bankruptcy claims higher than other bankruptcy claims:

2. The amount of damages and penalty resulting from nonperformance after bankruptcy is declared;

Article 473 (Scope of Estate Claims)

The following claims shall be estate claims:

2. A claim that is collectable pursuant to the National Tax Collection Act or the Framework Act on Local Taxes (including a claim that is collectable according to the example of collecting the national tax and its collection priority takes precedence over the collection priority of the general bankruptcy claims, subordinate bankruptcy claims provided for in the provisions of Article 446 shall be excluded): Provided, That claims on grounds arising after bankruptcy is declared shall be limited to claims that accrue to the bankruptcy estate;

The National Tax Collection Act>

Article 47 (Effect of Seizing Real Estate, etc.)

(1) The attachment under Article 45 or 46 shall enter into force upon completion of its registration or register.

(2) The attachment under paragraph (1) shall also have its effect on the delinquent amount of the national taxes, the legal due date of which comes due under Article 35 (1) of the Framework Act on National Taxes before the ownership of the attached property is transferred.

Article 53 (Requirements for Release from Attachment)

(1) The head of a tax office shall immediately release the attachment in any of the following cases:

1. Where the attachment is no longer needed because of payment, appropriation, suspension of a public auction, cancellation of the imposition, or other reasons;

2. If the justification for the third person's claim on the ownership under Article 50 is deemed reasonable;

3. If the third person proves that he/she has obtained a favorable judgment of the court in the lawsuit on the ownership against the defaulted taxpayer.

(2) The head of a tax office may release the attachment of a property partially or wholly in any of the following cases:

1. Where the total amount of delinquent taxes is substantially exceeded due to a change in the price of property after attachment;

2. If the delinquent amount related to the attachment is partially paid or appropriated;

3. If the imposition is partially cancelled;

4. If other seizable property provided by the defaulted taxpayer is attached.

Article 30 (Continuation of Disposition on Default)

Even where a delinquent taxpayer is declared bankrupt, the head of a tax office shall continue the disposition for arrears when any property already attached exists.

B. Determination

1) First, we examine whether the Defendant’s additional claim against the Plaintiff, which occurred after the Plaintiff’s bankruptcy was declared, constitutes estate claims.

On the other hand, the defendant asserts that the defendant's additional claim against the plaintiff, which occurred after the plaintiff's declaration of bankruptcy, constitutes a estate claim, on the grounds of the Constitutional Court's decision as to Article 38 subparagraph 2 of the former Bankruptcy Act and the Supreme Court's decision as to January 14, 2010, "the right to collect under the National Tax Collection Act" under the main sentence of Article 38 subparagraph 2 of the former Bankruptcy Act, is included in "the right to collect the national tax and local tax arising from the cause that occurred before the declaration of bankruptcy."

On May 29, 2008, the Constitutional Court rendered a decision not to violate the Constitution (2006Hun-Ga6, 11, 17) that "a claim for additional dues and increased additional dues which occurred after the declaration of bankruptcy on the grounds of national tax and local tax arising before the declaration of bankruptcy" among "a claim collectable by the National Tax Collection Act" under Article 38 subparagraph 2 of the former Bankruptcy Act, and the Supreme Court also rendered a decision to the same effect (see Supreme Court Decision 2009Da6539, Jan. 14, 2010). However, unlike Article 38 subparagraph 2 of the former Bankruptcy Act, Article 473 subparagraph 2 of the current Debtor Rehabilitation Act explicitly provides that "a subordinate bankruptcy claim under Article 46 shall be excluded," and Article 446 (1) 2 of the same Act provides that "a claim for additional dues and increased additional dues arising after the declaration of bankruptcy and junior bankruptcy shall not be deemed to fall under "a claim for additional dues and increased additional dues for the plaintiff 20 days" under Article 470.

2) Furthermore, as to the Plaintiff’s claim for return of unjust enrichment, although the Defendant’s additional claim against the Plaintiff, which occurred after the declaration of bankruptcy, does not constitute estate claims, the Defendant’s obligation to return unjust enrichment to the Plaintiff by receiving repayment of additional claim incurred after the declaration of bankruptcy from the Plaintiff and obtaining profits without any legal cause is considered as serious and obvious. However, in a case where there are objective circumstances that make it possible to believe that certain legal relations or facts which are not subject to taxation are subject to taxation are subject to taxation, if it is apparent that the factual relations should be accurately examined as to which they are subject to taxation, it cannot be said that the defect is apparent even if it is serious, and thus, it cannot be deemed that the illegal taxation disposition that misleads the Plaintiff into the fact of taxation (see, e.g., Supreme Court Decision 2001Du7268, Sept. 4, 2002).

In the instant case, even if the effect of attachment on the apartment of this case is limited to the scope of estate claims as asserted by the Plaintiff, it is difficult to view that the additional claim arising after the declaration of bankruptcy constitutes estate claims (the Plaintiff claimed to the Tax Tribunal for the cancellation of attachment on the ground that the Defendant’s additional claim constitutes estate claims, but the Tax Tribunal dismissed the above claim on the ground that the Defendant’s additional claim constitutes estate claims). Thus, it cannot be deemed that the effect of attachment on the apartment of this case is unlawful or it is returned to the rightful invalidity. In relation to the Plaintiff’s other creditors, even if the Defendant received repayment prior to other estate claims, bankruptcy claims, bankruptcy claims, or subordinate claims, which led to the Defendant’s failure to receive repayment of the additional claim, the Plaintiff’s relationship between the Plaintiff and the Defendant constitutes a debtor liable to pay the additional claim against the Defendant in arrears. Thus, it cannot be deemed that the Defendant’s additional claim was obtained from the Plaintiff, a tax obligor, without any legal ground.

Therefore, the plaintiff's claim for return of unjust enrichment against the defendant is without merit without further review of the remaining points.

3) Next, with respect to the Plaintiff’s claim for damages based on the Plaintiff’s unlawful act, the Defendant is liable to release the attachment of the instant apartment from attachment on the ground of the Plaintiff’s failure to release the attachment of the instant apartment by intention or negligence, even though the Defendant was fully paid the delinquent tax amount corresponding to the estate claim by the Plaintiff.

In light of the above facts, the defendant lawfully seized the apartment of this case on September 10, 201 before the plaintiff was declared bankrupt on November 23, 2010. Since the plaintiff was declared bankrupt on November 23, 2010, it is difficult to view that the scope of seizure for the apartment of this case is limited only to the scope of seizure corresponding to estate claim, and there is no evidence to prove that any circumstance exists that can be seen as falling under the requirements for cancellation of seizure under Article 53 (1) of the National Tax Collection Act, and the head of a tax office shall continue to collect delinquent taxes even if the delinquent taxpayer is declared bankrupt pursuant to Article 30 of the Enforcement Decree of the National Tax Collection Act, and in light of the above circumstances, it is difficult to view that the defendant is liable to cancel the seizure for the apartment of this case on the ground that the defendant was paid delinquent tax amount corresponding to estate claim by the plaintiff.

In addition, although the former Bankruptcy Act has been applied, the Constitutional Court and the Supreme Court rendered a judgment that the additional claim arising after the declaration of bankruptcy constituted estate claims. In this case, where the amended Debtor Rehabilitation Act applies, there seems to have been room for interpretation as to whether the additional claim arising after the declaration of bankruptcy constitutes estate claims. In light of the fact that the Tax Tribunal rendered a decision to dismiss the plaintiff's claim for release of attachment on the ground that the defendant's additional claim arising after the declaration of bankruptcy constituted estate claims for the defendant's additional claim arising after the declaration of bankruptcy is deemed to constitute estate claims, and that the defendant's additional claim arising after the declaration of bankruptcy cannot be revoked before the plaintiff is paid the total delinquent amount from the plaintiff. Thus, it is difficult to view that the defendant's failure to release the attachment on the apartment of this case was unlawful for the purpose of paying the total delinquent amount from the plaintiff intentionally or by negligence, and therefore, it is not reasonable to further consider the plaintiff's claim for damages based on the defendant's tort against the defendant.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges O Jae Jae-sung (Presiding Judge)