Bankruptcy Trustee of Chang Chang City Development Corporation for Bankruptcy Obligor

Busan Housing Co., Ltd. (Law Firm Yang Hun-Ga, Attorney Park Jong-sung, Counsel for the plaintiff-appellant)

Korea

March 11, 2015

Seoul Central District Court Decision 2014Gahap25981 Decided September 3, 2014

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 622,712,490 won with 5% interest per annum from December 6, 2013 to the delivery 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 (the plaintiff reduced the claim in the trial).

1. Basic facts

The court's explanation on this part is identical to the corresponding part, except that the statement "A or 8, 10, 10, 17, 17, hereinafter the same shall apply) of the 8 or 9 [based on recognition] of the 8 or 9 [Attachment 1 or 8, 10, 10, 13, and 17, hereinafter the same shall apply] of "A or 8, 10, 10, 10, 17," among the statements on the grounds of the judgment of the court of first instance, add the following parts to the statement on the 5 or 7, and the statement on the 8 or 9 of the 8 or 9 of the same face."

In the meantime, around 2013, the Plaintiff filed a lawsuit against the head of the Ulsan District Tax Office for the cancellation of the imposition of value-added tax by the sequence 4 in the table of delinquent taxes by the head of the Ulsan District Tax Office (2013Guhap615) on the grounds that the disposition of imposition of value-added tax by the head of the Ulsan District Tax Office against the head of the Ulsan District Tax Office on the grounds that the disposition of imposition of value-added tax by the title 4 in the table of delinquent taxes violates the law and should be revoked, and the above court rendered a judgment on November 7, 2013 that "the disposition of imposition of value-added tax by the sequence 4 in the table of delinquent taxes shall be revoked" on the grounds that the appeal and appeal by the head of the Ulsan District Tax Office are dismissed ( Busan High Court Decision 2013Nu20943, Supreme Court Decision 2014Du423

2. Relevant statutes;

(2) The attachment provided for in the provisions of paragraph (1) may be cancelled immediately before the transfer of ownership of the relevant property, if it is verified that the attachment price of the relevant property falls under any of the following subparagraphs, and the attachment order provided for in the provisions of Article 35 (1) of the Framework Act on National Taxes (including a claim that may be collected by the example of collection of national taxes, and subordinate claims provided for in the provisions of Article 446 shall be excluded): Provided, That the attachment order provided for in the provisions of Article 47 (Effect of Attachment of Real Estate, etc.) (1) The attachment order provided for in the provisions of Article 45 or 46 of the National Tax Collection Act shall be cancelled:

3. The parties' assertion

The court's explanation on this part is that "the defendant is obliged to pay to the plaintiff 3,747,273,290 won as unjust enrichment, and delay damages therefor," of the first instance court's 6th 4 to 5th 622,712,490 won as unjust enrichment, and that "the plaintiff is obligated to pay to the plaintiff 3,747,273,290 won as unjust enrichment, and delay damages therefor," of the first instance court's 1th 1th 1th 4th 4th 4th 62th 4th 4th 4th 4th 4th 4th 62th 4th 4th 2,747,273,290 won as unjust enrichment, and the plaintiff is obligated to pay the plaintiff 3,747,273,290 won as unjust enrichment, and the part of the court's 8th 8th 9 and 9th 2012th 1292.

4. Determination

A. Determination as to whether the Defendant’s additional claim that occurred after the Plaintiff’s bankruptcy was declared constitutes estate claims

1) The purport of the Debtor Rehabilitation Act stipulating the “claim arising from the act performed by a trustee in bankruptcy with respect to a bankrupt estate” as an estate claim is to fairly and smoothly proceed with the bankruptcy procedure by protecting interested parties by requiring the trustee in bankruptcy to frequently repay the other party’s claim arising from performing his/her duties based on the right to manage and dispose of the bankrupt estate. As such, the “act performed by a trustee in bankruptcy with respect to a bankrupt estate” includes not only a juristic act performed by the trustee in the course of performing his/her duties but also a tort committed in relation to his/her duties, and further, the nonperformance of obligations owed by the trustee in bankruptcy in connection with his/her duties (see Supreme Court en banc Decision

2) If so, the Plaintiff is obligated to pay from time to time the value-added tax set forth in the table of delinquent tax amount Nos. 1 and 2, which occurred prior to the date on which the bankruptcy is declared as an estate claim. Thus, each of the above value-added tax additional claims arising from delay in performing the above obligation after the Plaintiff is declared bankrupt constitutes estate claims as stipulated in Article 473 subparag. 4 of the Debtor Rehabilitation Act.

B. Determination on the claim for restitution of unjust enrichment

1) First of all, as seen earlier, it is reasonable to view that each additional dues claim Nos. 1 and 2 in the delinquent tax table, which is the additional dues claim against the Plaintiff incurred after the declaration of bankruptcy, constitutes estate claims. As such, the Plaintiff’s assertion seeking a return of unjust enrichment on a different premise is without merit without further examining the remainder of the issue.

2) Next, the value-added tax and the additional dues No. 5 in the list of delinquent taxes cannot be deemed as an estate claim as a claim arising after the date bankruptcy is declared. However, even if the defendant received a tax claim corresponding to subordinate claims in relation to the plaintiff's other creditors and received a repayment prior to other estate claims, bankruptcy claims, or subordinated claims, and thus another foundation creditor, bankruptcy creditors, or subordinated creditors are unable to receive repayment of estate claims, bankruptcy claims, or some subordinated claims, the relation between the plaintiff and the defendant constitutes a debtor liable for payment of delinquent taxes and additional dues, and thus, it cannot be deemed that the defendant received a payment of the above value-added tax and additional dues from the plaintiff who is a tax obligor, without any legal grounds. Accordingly, this part of the plaintiff's assertion is without merit.

C. Judgment on the claim for damages caused by a tort

1) Lastly, although the defendant is obligated to release the attachment of the apartment of this case after receiving a full repayment of the delinquent tax amount corresponding to the estate claim from the plaintiff, it is judged whether the defendant's repayment of value-added tax and additional dues equivalent to the above 622,712,490 won is a tort without releasing the attachment.

2) As seen earlier, since each additional claim Nos. 1 and 2 in the above delinquent tax table constitutes a bankruptcy claim, there is no room for the Defendant to establish a tort against the Defendant’s repayment of this part of the additional dues in preference to other bankruptcy creditors.

In addition, while the value-added tax and the additional tax in the No. 5 of the above delinquent tax table arise after the defendant was declared bankrupt of the seizure of this case and the development of the Chang Chang City, inasmuch as the value-added tax and the additional tax in the No. 1, 2, and 3 of the above delinquent tax table at the time of the seizure of this case are in arrears and the execution of the seizure is lawfully conducted, it cannot be concluded that the effect of the seizure does not extend to the value-added tax and the additional tax in the No. 5 of the above delinquent tax table. In addition, according to Article 30 of the Enforcement Decree of the National Tax Collection Act, even if the delinquent taxpayer is declared bankrupt, the head of a tax office continues the disposition for arrears if there is any property already seized, it shall not be deemed unlawful on the ground that

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just and it is dismissed as it is so decided as per Disposition.

Judges Kim Wil (Presiding Judge)