Plaintiff (Appointed Party) 1 and 2 others

Plaintiff (Appointed Party) and 2 others, the bankruptcy trustee of the bankrupt Corporation, Inc., Ltd., the bankruptcy trustee, the plaintiff

Attached Table 1 is as shown in the list.

Defendant 1 and one other (Attorneys Lee Im-he et al., Counsel for the defendant-appellant)

Independent Party Intervenor (Attorney Cho Young-young et al., Counsel for defendant-appellant)

August 23, 2017

Seoul Central District Court Decision 2014Gahap50524 Decided October 7, 2016

1. The appeal filed by the plaintiff (Appointed party) against the bankrupt bankruptcy trustee, the bankrupt company, and the defendant 2, all of which are the parties to the lawsuit, are dismissed.

2. The request for intervention of an independent party raised in the trial shall be rejected;

3. Of the costs of appeal, the part arising between the Plaintiff (Appointed) and Defendant 1, the bankruptcy trustee of the bankrupt, the attorney-at-law in bankruptcy, the attorney-at-law in bankruptcy, the plaintiff and the attorney-at-law in bankruptcy, the plaintiff in bankruptcy, and the defendant 2, among the costs of appeal, are borne by the above attorney-at-law in bankruptcy, and the costs of appeal arising from the intervention of the independent party shall be borne by the

4. The addition of “906.....................................”

1. Purport of claim

A. Main Action: The plaintiff (appointed party) and the defendant 1, and the defendant 2 confirmed that the plaintiff (hereinafter "the plaintiff") had the right to claim for payment of deposit money as stated in the "amount of claim for payment of deposit money" column in the attached Table 2 of the Seoul Central District Court Decision 2013 was 157,43,151,219, the sum of the deposits deposited by the Republic of Korea under the Seoul Central District Court Decision 2013,9, 902, 903, 905, 906, 912, and 2147.

B. Independent Party Participation: (a) Defendant 1 confirms that the Republic of Korea has the right to deposit money of KRW 157,43,151,219 and KRW 157,433,151,219, the sum of the deposits deposited by the Republic of Korea with the Seoul Central District Court Decision 899,902, 905, 906, 912,2147, and KRW 157,433,151,219, the Plaintiff is entitled to deposit money of KRW 10,000. The Defendant 2’s appeal is dismissed as follows: (b) Defendant 1 asserts that the Republic of Korea has the right to deposit money of KRW 157,43,151, 219 and KRW 10,000 among the total sum deposited by the Republic of Korea with the Seoul Central District Court Decision 2013; and (c) Defendant 216,2017, the first date for pleading of the Plaintiff’s damages.

2. Purport of appeal

A. The Plaintiff: (a) the part against Defendant 1 in the judgment of the first instance is revoked. The Plaintiff and Defendant 1 verify that, between the Plaintiff and the Seoul Central District Court, the Republic of Korea deposited each amount in accordance with [Attachment 2] No. 899, 902, 903, 905, 906, 912, and 2147 in the aggregate of the amounts deposited by the Republic of Korea in accordance with [Attachment 2] 157,43, 151, and 219, the right to claim for payment of deposit with respect to each money recorded in the “Defendant 1” column in [Attachment 2] is the Plaintiff.

B. Defendant 2: The part against Defendant 2 among the judgment of the first instance is revoked. The Plaintiff’s claim against Defendant 2 is dismissed.

1. Facts of recognition;

A. Status of the parties

1) On December 16, 2008, Eberse Land Co., Ltd. (formerly amended on December 16, 2008: Multi-Stage Sale Business Co., Ltd., Ltd., Ltd., hereinafter “Eberse Land” or “Darpty”, etc., are multi-stage sales business entities, and dicosting Co., Ltd. (hereinafter “D”) is door-to-door sales business entities (hereinafter collectively referred to as “each of the instant companies”).

2) Non-party 2 is the representative director and D Cases in the Eberse land, and Non-party 3 is the executive director in the business administration sector of Eberse land, and was in charge of the management of members of each company of this case, the center and branch offices management, etc. under the direction of Non-party 2. Nonparty 4 was the chairperson of the Multipacter Business Development Committee (hereinafter “Damp Business Development Committee”), Non-party 5 was multi-party advisor and the chairperson of the Multipacter Federation, and Non-party 6 served as multi-party advisor.

3) Defendant 1 is an attorney-at-law who was delegated by the case with tax trials and administrative litigation on the disposition rejecting the value-added tax claim, and Defendant 2 is an accountant who was represented by the application for rectification under delegation from the case with respect to the disposition rejecting the value-added tax, etc., and who was assigned part of the refund bonds of this case from the case.

4) Meanwhile, the Plaintiff (Appointeds) and the designated parties concluded a door-to-door sales contract with each of the instant companies to visit and sell goods supplied by each of the instant companies to consumers and receive prescribed allowances from each of the instant companies.

5) The Plaintiff (hereinafter “Plaintiff”) as the bankruptcy trustee in the case of the Plaintiff (Appointed Party), who is the taking over of the lawsuit of the Plaintiff (Appointed Party), was appointed as the DNA bankruptcy trustee in the bankruptcy proceeding of the case, and was appointed from the Plaintiff (Appointed Party) to take over the lawsuit seeking revocation of fraudulent act and restitution.

B. Organizational structure and compensation franchise of each company of this case

1) Since April 2005, six branches, including Gangnam-gu, Busan, Gwangju, Incheon, Daejeon, and Daegu, have established 62 centers nationwide. Each branch office is a subdivision of the headquarters for policy delivery, public relations, supervision over the center. Each branch office and employees issued by the headquarters were in charge of the management of the headquarters, the image management of the company, and the receipt of new sales registration. Each center received the support fund for the center (3.5% of sales revenue) from the headquarters as the expense for the monthly sales from the headquarters (3.5% of sales revenue) under the expense for the expense for the operation of the headquarters, depending on the monthly sales from the headquarters, while taking charge of new sales, goods sales, and sales, and education of sales clerks. Meanwhile, DK did not have a separate branch and center through the branch office and the center, and Nonparty 2 maintained the subordinate relationship of each of the instant companies after July 2005.

2) A salesperson (a seller is to be promoted according to his/her cumulative performance, a subordinate salesperson’s fostering, and his/her subordinate salesperson’s performance, etc., and a person who received a sales-based bonus, bonus, recommendation allowance, promotion allowance, job class allowance, etc. according to each class is entitled to receive support allowances, etc. according to each class) from ABD area, if the sales-based position is above a certain class to increase the class according to the purchase performance

3) As the sales of each company of this case continuously decreased from around 2004, Nonparty 2 and upper-tier enterprisers decided to introduce the co-ownership marketing conducted in the reason network, etc. The content of the purchase of goods equivalent to 300,000 DV (540,000 won, DV is the point awarded to each product to calculate the allowance to be paid to the members) is the first-stage member, the first-stage member is the second-stage member if the goods equivalent to 1.2 million won are purchased, the second-stage member is the third-stage member if the goods equivalent to 1.00,000 DV are purchased, and the third-stage member becomes the third-stage member if the goods equivalent to 1,00,000 won are purchased, and the first-stage member will be paid a maximum of 2.5 million won per day within 100,000 won after the third-stage member was added to the fourth-stage member.

4) The recruitment of new salespersons is mainly conducted by each center mainly by holding a business explanatory meeting for those invited by its salespersons and soliciting them to join the sales. The business explanatory meeting was implemented by each center’s educational chairperson or educational committee members in addition to know-how related to sales based on a prospectus or a basic lecture distributed at the head office.

5) Since the purpose of the salespersons is to purchase goods in DNA cases with the actual acquisition of points, they have been delegated to each Center without receiving the goods and received an amount equivalent to 5% of the value of the goods after applying for resale of the goods.

C. Illegal acts committed by Nonparty 2, Nonparty 3, Nonparty 4, Nonparty 5, and Nonparty 6 (hereinafter “Nonindicted 2, etc.”)

1) Non-party 2, etc.: (a) from January 2005 to January 2007, 200, the 642-10 major offices located in Gangnam-gu, Seoul; (b) six branch offices located in 67 local centers; and (c) the company’s premium payment structure is the type of low-price products for purchasing goods; and (c) the company’s premium payment structure is 0 or more high-ranking sales cost for 20 or more high-ranking companies, and the company’s sales cost is 10 or more high-ranking companies and 200 or more high-ranking companies, which will be paid for 0 or more high-ranking companies with high-end sales revenue generated from 0 or more high-ranking companies (excluding those that will be paid for 0 or more high-end companies, and thus, it is difficult to realize considerable profits within a short-term period because of the absence of assets or profit-making companies to pay high-end sales revenue generated from 20 or more high-end companies.

2) 소외 2 등은 다단계판매자 및 방문판매자로서 다단계판매원의 등록 또는 자격유지의 조건으로 연 50,000원 이상의 부담을 지게 하거나, 방문판매원이 되기 위한 조건 또는 방문판매원의 자격을 유지하기 위한 조건으로서 연간 20,000원 이상의 재화를 구매하게 하는 등의 의무를 부과하여서는 아니 되고, 허위 또는 과장된 사실을 알리거나 기만적 방법을 사용하여 상대방과의 거래를 유도하거나 재화 등의 가격·품질 등에 대하여 허위의 사실을 알리거나 실제의 것보다도 현저히 우량하거나 유리한 것으로 오인시킬 수 있는 행위를 하여서는 아니 됨에도, 사업설명회 등을 통하여 피해자들에게 “에버세이지와 디케이는 생활용품, 건강보조식품, 벤처 기업 제품의 생산자와 소비자를 직접 연결해 유통비용 없이 판매하고, 다양한 수익사업도 운영하여 고수익을 창출한 다음, 이를 판매원들에게 수당으로 지급하는 회사들이다. 제품을 구매하여 소비하는 것만으로도 수익을 창출할 수 있다. 30만 DV(54만 원)를 부여받는 물품을 구매하면 후원수당을 받을 수 있는 에버세이지의 다단계판매원(리더 직급, 1단계 판매원)이 될 수 있고, 하위 판매원 모집 실적에 따라 후원수당 및 추천수당의 액수도 증가할 뿐만 아니라, 리더(LD)⇒이그제큐티브(EX)⇒골드(GD)⇒루비(RU)⇒사파이어(SA)⇒에메랄드(EM)⇒다이아몬드(DI)⇒에버세이지(DY)로 직급이 승급되면서 루비부터 에버세이지까지는 월 총 매출 DV의 3%를 가지고 직급별로 가중치를 두어 차등 지급한다. 또한 후원수당을 받을 수 있는 에버세이지의 다단계판매원이 되면 디케이의 방문판매원도 될 수 있으나, 추가로 320만 DV(520만 원)를 부여받는 물품을 구매하면 4단계가 달성되는데, 이 경우 디케이 물품을 무한정 구매할 수 있고, 이후 100만 DV(143만 원)를 부여받는 물품을 구매하여 1점을 획득할 때마다 공휴일을 제외하고 매일 10,000원씩 250만 원의 수당을 틀림없이 지급하겠다.”라고 말하여 실질적으로는 투자금의 성격을 갖는 물품구입비 명목 및 다단계판매원 등록 및 자격유지의 조건으로 원고 등을 포함한 피해자들로부터 돈을 지급받아 다단계판매원의 등록 또는 자격유지의 조건으로 연 50,000원 이상의 부담을 지게 하거나, 방문판매원이 되기 위한 조건 또는 방문판매원의 자격을 유지하기 위한 조건으로서 연간 20,000원 이상의 재화를 구매하게 하는 등의 의무를 부과하고, 이 사건 각 회사의 수당 지급구조는 하위 판매원들의 매출로 상위 판매원들의 수당을 지급하는 형태로서 향후 지속적인 매출 증가를 장담할 수도 없어 하위 판매원들이 기하급수적으로 증가하지 않는 한 종국에는 수당 지급을 중단할 수밖에 없는 상황에서 시중 판매가 불가능한 저가의 조악한 물품들(원가가 판매가의 11.16%에 불과함)을 판매하였다.

D. Sales amount and allowances paid to the Plaintiff (Appointeds) and the designated parties

The difference between the Plaintiff (Appointed Party) and the designated parties paid to each of the instant companies for the purchase of the goods of each of the instant companies due to the aforementioned unlawful acts by Nonparty 2, etc. (i.e., sales) and the amount of money received from each of the instant companies for various allowances (=amount of damages) is the total amount of KRW 31,037,059,420.

(e) Closure of a case and declaration of bankruptcy;

1) From around 2007, the case discontinued its business in fact because it did not pay sales allowances to the salespersons including the Plaintiff (Appointeds) and the designated parties. Around May 31, 2007, the case reported the closure of the business of all branches, and filed a report on the closure of the business with the head office around November 16, 2007.

2) In 206, immediately before the filing of the report on the closure of the above business, the amount of debt under the statement of financial position for DD in 2006 was in capital erosion exceeding the capital. Moreover, until 2007, DD was in total of KRW 2,050,63,762,90 for the money that D DD received as a result of the purchase of goods from the salespersons. Of that amount, KRW 1,388,075,877,910 was paid as an allowance to the salespersons. The remaining amount of debt of the salesperson at the time of closure of the business year 2007 was KRW 662,57,84,990 only on the basis of principal amount.

3) On October 16, 2014, D Cases were declared bankrupt by the Seoul Central District Court No. 2014Hahap10072 on October 16, 2014, and the Plaintiff was appointed as bankruptcy trustee on the same day.

F. The criminal trial outcome against Nonparty 2, etc.

With respect to each of the above illegal acts, on October 30, 207, Nonparty 2 conspired with the executives of Dap and DNA, concluded each door-to-door sales contract by deceiving 28,823 victims including the Plaintiff (Appointeds) and the designated parties from January 2005 to April 2007, and obtained a total of KRW 2,050,63,762,90 from the above victims as purchase cost, and obtained a total of KRW 2,050,63,762,90 from the above victims, the above judgment was finalized on June 12, 2008, and became final and conclusive on June 12, 2008, and the above judgment was also declared guilty as a crime such as violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud).

(g) Progress of a lawsuit seeking revocation of the return of value-added tax and the revocation of correction thereof;

1) From April 2006 to April 2007, the case reported and paid each value-added tax to 6 chief of the regional tax office, etc. from January 2006 to January 2007, 2007, but around March 16, 2009, the business, which had been reported and paid to 6 chief of the regional tax office, etc., was merely taking the form of sale and purchase of the goods to attract investment funds without real transaction of the goods, and thus seeking a refund of 145,593,218,687 won (hereinafter “value-added tax”) out of the total value-added tax on the total value-added tax from January 2006 to January 2007, which was reported and paid as above, by asserting that it does not constitute supply of the goods under the Value-Added Tax Act.

2) As to this, six chief of the tax office, including the chief of the regional tax office, etc.: (a) rendered a disposition rejecting correction of each of the above corrective measures to the effect that the goods purchased by the DNA are supplied to the salespersons upon receiving the price for the goods purchased by the DNA during the period from May 13, 2009 to May 18, 2009 constitutes subject to taxation pursuant to Articles 6 and 1 of the Value-Added Tax Act; and (b) the case filed a tax appeal against each of the above corrective measures on August 7, 2009; (c) however, the Korean Tax Tribunal filed a request for a tax appeal against each of the above corrective measures around August 7, 2009; (d) on March 9, 2010, the Korea Tax Tribunal cannot be said to be the supply of goods solely on the fact that the form of transaction between the DNA and the salespersons is somewhat different from the ordinary commercial transactions, and thus,

3) Accordingly, around June 4, 2010, D Cases: (a) most of the goods sold at low prices against six chief of the tax office, including the directors of the regional tax office, etc. (hereinafter “each of the instant transactions”); and (b) the sales price of each of the instant transactions is ten to twenty times the purchase price of D Cases, which is impossible to sell at low prices; and (c) the sales price is also ten-20 times the purchase price of D Cases; (d) the sales price was purchased solely for the purpose of receiving the goods purchased without intent to use or consume, and did not receive the goods actually purchased; and (d) the investors recruited investors (sales members) promised to pay a certain allowance, and the investors also invested in the planned recovery of the investment amount by receiving an allowance. In light of the fact that each of the instant transactions was conducted in order to pretend the supply of the goods; (b) the substance was attracting the relevant goods as a intermediary and paid investment amount; and (c) thus, (d) the Seoul Administrative Court filed an administrative litigation seeking revocation of the aforementioned disposition of supply of the goods.

4) On February 23, 2012, each of the instant transactions was conducted in the form of sale in order to pretend the supply of goods, and its substance is nothing more than a de facto monetary transaction that attracting investment funds through the means of the pertinent goods and paying investment allowances accordingly, and thus, the said court rendered a judgment ordering revocation of each of the above corrective rejection dispositions on the grounds that the supply of goods subject to value-added tax could not be deemed to have existed. Accordingly, six chief of the subsequent tax office, including the Seoul High Court (Seoul High Court 2012Nu9422; hereinafter referred to as the “instant revocation of the instant refusal disposition”), but on November 23, 2012, the said appeal was dismissed, and the judgment of the first instance became final and conclusive around that time.

5) Accordingly, on January 15, 2013, Korea made a mixed deposit of the Seoul Central District Court No. 899 in 2013, No. 902 in 2013, No. 903 in 2013 in 2013, No. 905 in 2013 in 2013, No. 906 in 2013 in the same court, No. 906 in 2013 in the same court, No. 912 in 2013 in 2013, No. 912 in 2013 in the same court, and No. 2147 in 2013 in the same court.

(h) Conclusion of delegation contracts and the management of delegated affairs;

1) Conclusion of delegation contracts with Defendant 2 and processing of delegated affairs

A) Around February 2009, D Cases entered into a delegation agreement with Defendant 2, who was an advisory accountant of D Cases, on various business affairs related to request for correction, request for adjudication, administrative litigation, etc. in connection with the value-added tax of this case (hereinafter “instant delegation agreement with Defendant 2”), and agreed on the remuneration as follows.

(1) Amount of remuneration (Article 5 of the above contract)

(A) 15,00,000 won (excluding surtax) and 10% of the tax amount to be actually refunded as contingent fees at the stage of filing a claim for correction;

(B) 15,00,000 won (excluding surtax) and 10% of the tax amount to be actually refunded as contingent fees at the tax assessment stage.

(c) 30,000,000 won (including attorney fees) at the stage of administrative litigation and 15% of the tax amount to be actually refunded as contingent fees.

(2) In the case of early cancellation of the contract due to the circumstances of the case (Article 6 of the above contract)

Where Defendant 2 terminates a contract due to the circumstances of DNA cases after the commencement of delegated affairs, if the amount of duties to be delegated by Defendant 2 was corrected in direct or indirect connection with the delegated affairs, the delegated affairs shall be deemed to have been performed, and such remuneration shall be paid in full.

B) Defendant 2 filed a request for correction regarding the value-added tax of this case on March 2009, in accordance with the above delegation contract, around the calendar, etc., but received a disposition of refusal of correction from the head of the regional tax office, etc. around May 2009.

C) AD Cases entered into an advisory agreement with Defendant 2 on March 2009, stipulating that Defendant 2 will only take charge of affairs related to requests for correction, requests for correction, and administrative litigation related to the value-added tax (hereinafter “instant advisory agreement”) and the amount of remuneration (including value-added tax) for the following: (i) the amount equivalent to 4% of the tax amount to be actually refunded (including value-added tax) where a refund is made at the tax assessment stage; and (ii) the amount to be paid in money equivalent to 3% (including value-added tax) of the tax amount to be actually refunded where a refund is made at the administrative litigation stage (Article 5 of the above agreement).

2) Conclusion of delegation contracts with DNA and Defendant 1, etc. and processing of delegated affairs

A) On June 30, 2009, D Cases entered into a delegation agreement with Defendant 1 and Nonparty 1 (including Nonparty 1) on the part of the Tax Tribunal and the pertinent administrative litigation at all levels (hereinafter “instant delegation agreement with Defendant 1”) to which the former Tax Tribunal seeking revocation of the disposition of refusing the refund of value-added tax on D Cases would be delegated with the handling of administrative litigation at all levels. At the time of the above contract, D Cases would not pay the starting amount at the time of the above contract. However, as contingent fees, ① the amount equivalent to 6% (including additional dues) of the refunded tax (including additional dues) when the delegated amount was successful at the tax trial stage, ② the amount equivalent to 7% (including additional dues) of the refunded tax (including additional dues) when the delegated amount was successful at the tax litigation stage, the aforementioned contingent fees payment method entrusted Defendant 1 and Nonparty 1 with the receipt of refundable tax on behalf of Defendant 1 and Nonparty 1, Defendant 1 et al., to transfer the remainder of the refunded amount to Defendant 1, etc.

B) Around August 2009, Defendant 1 et al. received a request for a trial from the Director of the Tax Tribunal against the refusal disposition of the instant value-added tax correction application on behalf of D Cases pursuant to the delegation agreement with Defendant 1, etc., and received the notice of the decision. Thereafter, Defendant 1, Nonparty 7, and Nonparty 8 performed the duties as the attorney of the suit for revocation of the instant refusal disposition.

I. Transfer contract on the refund claim of this case

(3) On August 30, 2012, when the Seoul High Court (Seoul High Court 2012Nu9422) transferred 200 won to Defendant 1, 300,300,000,000 won on September 10, 2012, and the assignment of 200,300,000 won to Defendant 20,30,000,000 won on each of the above assignment of claims (hereinafter “the assignment of claims in this case”) was transferred to Defendant 2,30,30,000 won on September 3, 2012, and 200,30,000 won on September 3, 20, 200, 300,300,000 won on September 11, 2012, 200, 200,000 won on each of the assignment of claims.

(j) The plaintiff's taking over the lawsuit;

As seen earlier during the course of the revocation of the fraudulent act and the lawsuit seeking restitution filed by the Plaintiff (Appointed Party) against the Defendants, the case was declared bankrupt, and thereafter, the Plaintiff changed the lawsuit of this case to the effect that the Plaintiff (Appointed Party) taken over the instant litigation procedure and filed a suit of denial.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 9, 21, 22, Eul evidence 1 to 4, 6, Eul evidence 1, 4, 5 (including each number, and all the following items) and the purport of the whole pleadings

2. Determination as to the claims of an independent party intervenor

The intervenor's request for intervention by independent party ex officio is deemed lawful.

An independent party intervention intends to claim that the whole or part of the subject matter of a lawsuit is his/her own right, or a third party who asserts that the subject matter of a lawsuit is his/her own right, participates in a lawsuit as a party and settle the conflicting rights or legal relations between three parties in a single judgment, without contradictions between each other. Among an independent party intervention, an independent party intervention may be allowed when the plaintiff's principal claim and the intervenor's claim can be viewed as an incompatible relation in the assertion itself. The intervention in the prevention of death may be allowed in a case where the plaintiff and the defendant objectively recognize that the plaintiff and the defendant have the intent to harm the intervenor through the lawsuit, and it is recognized that the intervenor's rights or legal status may be infringed upon (see Supreme Court Decision 2010Da106245, May 13, 201).

In the case of this case, the intervenor seeks to confirm that the plaintiff claims for payment of deposit money with respect to each money listed in the "amount of claim for confirmation of withdrawal by the defendant" column of the attached Table 2 among the deposit money of this case between the plaintiff and the defendants is the plaintiff. Thus, in order to meet the requirements for participation as a right holder, it is obvious that the plaintiff and the defendant are not entitled to participate in the lawsuit, and it is objectively recognized that the plaintiff and the defendant have the intent to harm the intervenor through the lawsuit in question and that the plaintiff's rights or legal status are likely to be infringed. The submitted evidence alone is insufficient to recognize it, and there is no other evidence to acknowledge it, and after the bankruptcy of the debtor against the bankrupt, there is no other evidence to recognize it in the form of propagation of the bankruptcy estate, which is the exercise of the right of revocation by the bankruptcy trustee who performs duties for the joint interest of the bankruptcy creditor, thereby seeking a uniform settlement in the bankruptcy procedure for the purpose of fair realization and distribution of the debtor's property. Thus, the intervenor's independent party participation motion is unlawful

3. Determination as to each claim against the Defendants by the Plaintiff

A. Summary of the parties' assertion

1) Summary of the Plaintiff’s assertion

The assignment of each of the instant claims was made in a situation where D Cases were economically distressed. Accordingly, it constitutes a fraudulent act and constitutes a biased act that obstructs equal distribution among bankruptcy creditors. Accordingly, the Plaintiff shall exercise the avoidance power pursuant to Article 391 Subparag. 1 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Bankruptcy Act”). Accordingly, each of the instant assignment of claims is invalid, and the Plaintiff is entitled to the claim for payment of deposit money against the Defendants among the refund claims.

2) Summary of Defendant 1’s assertion

A) On the premise that the assignment of claims to Defendant 1 was carried out jointly with the delegation contract of this case with Defendant 1, Defendant 1’s revocation of the refusal disposition of this case pursuant to the above delegation contract, as a result of Defendant 1’s action, did not constitute a fraudulent act, since the positive property of DNA cases was increased substantially and substantially.

B) The assignment of claims to Defendant 1 pursuant to the delegation contract with Defendant 1 of this case is subject to the administrative litigation and administrative litigation with respect to the value-added tax of this case. Since the assignment of claims to Defendant 1 of this case is subject to the repayment of the contingent fee liability against the judgment of revocation of the refusal disposition of this case, which is the result of the delegated affairs, the assignment of claims to Defendant 1 of this case, and

3) Summary of Defendant 2’s assertion

A) The assignment of claims to Defendant 2 pursuant to the advisory contract with Defendant 2 of this case was received by Defendant 2 in lieu of the establishment of strategies for the refund of the value-added tax of this case, the representation of claims for correction, the filing of a tax appeal, and the repayment of the contingent fee liability under the comprehensive advisory contract with respect to the tax appeal and administrative litigation. As such, Defendant 2 did not commit a fraudulent act since it contributed to the formation of the instant refund claim

B) Defendant 2 made a critical contribution to the formation of the instant refund claim, and in light of the fact that Defendant 2 received only KRW 3 billion, which is less than KRW 1.7 billion ( KRW 157,422,846,830 ( KRW 157,428,227,696 x 0.03), the amount to be received as the original contingent remuneration, Defendant 2 did not have any intention to commit suicide.

B. Determination as to the time when the assignment contract of claims to Defendant 1 of this case was concluded

1) The Plaintiff asserts that: (a) the agreement on the assignment of claims concerning the instant refund claim between D case and Defendant 1 (hereinafter “the agreement on the assignment of claims to Defendant 1”) was prepared; and (b) from August 2012 to December 2012, when the notification of the assignment of claims was made to the Republic of Korea, Defendant 1 brought an action of denial of this case against the said act by asserting that the agreement on the assignment of claims to Defendant 1 was established with respect to the said act; (c) Defendant 1 asserts to the purport that the assignment of claims to Defendant 1 was made in entirety with the delegation agreement with Defendant 1; and (d) the said agreement is merely an ex post facto preparation for the notification of the assignment of claims. Accordingly, we first examine the point at which the assignment of claims to Defendant

2) The premised legal doctrine

At a certain point of time, when there was a legal act corresponding to a fraudulent act, it shall be determined carefully in consideration of the significant impact on the interests between the parties, and when there was a legal act corresponding to a fraudulent act, it shall be determined as the date on which such fraudulent act was actually committed as the standard. However, barring any special circumstances, it shall be determined as to whether such fraudulent act was actually committed, focusing on the date on which the reason for registration is deemed based on a disposal document, barring any other special circumstances (see Supreme Court Decision 2002Da41589 delivered on November 8, 2002).

3) In light of the following circumstances, in view of the evidence as seen earlier and the overall purport of the pleading, the agreement on the assignment of claims against Defendant 1 appears to have been concluded between August 2012 and December 2012 where notice of the assignment of claims was given to the Republic of Korea, and from August 2012 to August 2012.

A) The assignment of claims to Defendant 1 and the notification of the assignment of claims to Korea are based on the assignment of claims to Defendant 1, who is a disposal document.

B) Nos. 7 (Request for Transfer of National Tax Refund) delivered by DNA to Defendant 1 at the time of the instant delegation contract with Defendant 1 is merely documents necessary for the performance of the payment method of the contingent remuneration (the payment method that Defendant 1 received the full amount of refund on behalf of DNA and returned the remaining money to DNA) agreed by the parties, and it is insufficient to view that Defendant 1 had an intention to transfer the property as conclusive at that time.

C) Since Defendant 1’s obligation for contingent remuneration to Defendant 1 was established at the time when the amount of tax to be refunded by the chief of the regional tax office, etc. is determined on his success in delegated affairs, there was no occurrence of the contingent remuneration liability at the time of the delegation contract, and the contingent remuneration liability depends on the uncertain condition that the success of delegated affairs is determined. Therefore, it is insufficient to deem that Defendant 1 had the intent to transfer the instant refund claim to Defendant 1 on a conclusive basis at the time of the delegation contract.

D) At the time of the instant delegation contract with Defendant 1, the instant refund claim is merely a future claim, and in order to oppose other creditors with the assignment of claims, it was notified to the Republic of Korea, the debtor, by a certificate with a fixed date after the assignment of claims. At the time of the said contract, the case and Defendant 1 did not completely agree on the above notification method.

C. Determination as to whether the assignment of each of the instant claims constitutes a biased act

1) The premised legal doctrine

The so-called fraudulent act, which is an act subject to avoidance under Article 391 subparagraph 1 of the Debtor Rehabilitation Act, "the act of having knowledge that the debtor causes damage to the bankruptcy creditors," as well as the so-called act of absolute reduction of the debtor's general property, which is a joint security of all creditors, as well as the act of offering repayment or security to a specific creditor, which affects the debtor's property relationship and thus is favorable to a specific bankruptcy creditor and is contrary to fairness with other bankruptcy creditors. However, in order to be recognized as an intentional person, the debtor should have known that the debtor would damage the bankruptcy creditors as a subjective element. However, in order to prevent the act subject to avoidance under the Act from sustaining the intent of the type of act subject to avoidance under the Act and to promote transaction safety and balance, if repayment or security is intended as an intentional act, it is necessary to recognize that only a specific creditor makes repayment or security available to the specific creditor in order to avoid the principle of equality of creditors applied when bankruptcy proceedings commence (see, e.g., Supreme Court Decisions 203Da27184, Apr. 28, 2015).

2) Examining the following circumstances recognized as above or inferred from the facts, each of the instant claims assignment appears to constitute a biased act of evading the principle of creditor equality in the bankruptcy procedure by transferring only claims to the Defendants, a specific creditor, and at the time, DNA cases were aware of such fact.

A) Since 2006, D Cases did not actually have any assets that can become a responsible property in excess of the capital, and closed its business in 2007 and had been actually bankrupted at the time of each assignment of claims of this case.

B) At the time when the assignment of each of the instant claims was performed, most of the D Cases’ debts were to be paid to the salespersons (victims) including the Plaintiff (Appointeds) and the designated parties. Accordingly, when D Cases acquired the instant refund claims, the legal measures for remedy of damages, such as debt collection, etc. by the said victims were sufficiently anticipated, and the instant refund claims were to be appropriated for repayment of obligations for the said victims.

C) The instant assignment of claims became final and conclusive by a lawsuit for revocation of the instant refusal disposition and became final and conclusive and conclusive, from August 2012 to December 2012, 2012, the instant claim for refund was conducted between the parties to the instant claim for refund. However, from April 5, 2012 to April 5, 2012, the victims of Nonparty 2’s act of defraudation by Nonparty 2, who were the sales clerks, were subject to the Seoul Central District Court’s order for seizure and collection of the instant claim for the instant refund claim, and there is no other circumstance that the instant claim should be received prior to the occurrence of the instant refund claim. Considering this, the instant assignment of claims seems to have been conducted in order to receive preferential repayment to the general creditors, such as the victims of D Cases, etc.

D) The Defendants asserted that the assignment of claims against Defendant 2 and Defendant 1 was made by the original repayment method of D Cases’ contingent remuneration liability (in the case of Defendant 1), or that it was not a fraudulent act. However, as seen earlier, the acts subject to avoidance under Article 391 Subparag. 1 of the Debtor Rehabilitation Act include not only fraudulent acts but also biased acts, and the grounds for denial alleged by the Plaintiff constitute a biased act. Thus, the aforementioned Defendants’ assertion on a different premise is without merit.

D. Determination as to the defendants' defense

1) Determination as to the defense that the assignment of claims to Defendants 1 and 2 of this case is socially reasonable

A) The Defendants’ active property increases due to their delegated affairs. As such, the Defendants asserted to the effect that denying the Plaintiff’s denial of the said assignment of claims that the Plaintiff received due to the repayment of the contingent remuneration (or payment in kind) due to the delegated affairs. As such, we examine whether the said assignment of claims is socially reasonable or not.

B) Consumed legal principles

Even if the act subject to avoidance in bankruptcy proceedings is harmful to bankruptcy creditors, there may be cases where it is deemed that the act is socially necessary, reasonable or inevitable, depending on individual and specific circumstances at the time of the act, and thus general bankruptcy creditors need to suffer the reduction of the bankruptcy foundation or unfair business practices. In such exceptional cases, it shall not be subject to the exercise of the right to set aside under Article 391 of the Debtor Rehabilitation Act in light of the legal guidance and concept of equality of creditors, protection of the debtor and coordination of the interests in bankruptcy, or the concept of justice. Here, whether such act is reasonable should be determined specifically in light of the principle of good faith and the idea of fairness, based on the following factors: (a) the debtor’s property and business status at the time of the act; (b) the debtor’s property and business status at the time of the act; (c) the purpose and intent of the act; and (d) the debtor’s property and the intent at the time of the act; and (d) whether the creditor in collusion with the debtor or forced the debtor to perform the act.

C) Determination as to Defendant 1

Examining the above facts in light of the following circumstances, the assignment of claims to Defendant 1 is deemed necessary and inevitable in society. Thus, Defendant 1’s aforementioned defense pointing this out has merit.

(1) After being delegated with the adjudication of rejection of the application for rectification of the value-added tax of this case and the administrative litigation, Defendant 1 dealt with the delegated affairs, such as request for adjudication and litigation, on behalf of D Cases. As a result of such delegated affairs, Defendant 1 acquired the refund claim of this case, which can be said to be the only property of D Cases.

(2) The claims transferred by Defendant 1 from D Cases are part of the refund claims acquired by D Cases due to the above handling of delegated affairs. The assignment of claims to Defendant 1 was a method of paying contingent fees at the time when the above delegation contract was concluded (di Cases were already issued to Defendant 1 at the time when the above delegation contract was concluded and a certificate of personal seal impression was already issued).

(3) The Plaintiff asserts to the effect that the aforementioned contingent remuneration is excessively excessive in light of the progress, difficulty, and processing period of the instant disposition, and thus null and void in violation of the principle of good faith or the principle of equity. However, at the time of delegation contract with Defendant 1, Defendant 1 did not receive advance payment from D Cases at all. However, Defendant 1 agreed to the winning amount as 7% of the winning amount (including value-added tax and excluding value-added tax, about 6.364%) of the winning amount, and the degree of effort necessary for Defendant 1’s management of the delegated affairs and the outcome (in a lawsuit for revocation of the instant refusal disposition filed by Defendant 1, upon delegation from DD, Korea’s decision ordering revocation of the said corrective refusal disposition, cannot be deemed unfairly excessive in light of the above delegation agreement, etc.

(4) In a situation where a debtor is in a de facto bankruptcy state, such as where the debtor is in excess of his/her obligation, if an attorney-at-law, etc. increases his/her active property due to the handling of delegated affairs and becomes null and void as the act of preferential repayment of part of active property in return for such act constitutes a biased act, then the attorney-at-law, etc. takes over the handling of delegated affairs as to the increase

(5) The plaintiff, although an attorney-at-law shall not take over the right in dispute pursuant to Article 32 of the Attorney-at-law Act, the defendant 1 acquired the right in dispute, which is part of the right in dispute, in a lawsuit seeking revocation of the refusal disposition of this case, the claim for the refund of value-added tax equivalent to 11 billion won which is part of the right in dispute. Thus, since the assignment of the right in dispute against the defendant 1 is null and void due to the violation of the Attorney-at-law Act, Article 32 of the Attorney-at-law Act provides that "the attorney-at-law shall not take over the right in dispute." However, the above provision does not have any influence on the judicial effect of the act of taking over the right in dispute as it is merely a prohibition provision for regulating the above act, and the term "right in dispute" refers to the right in dispute, so the claim in this case cannot be considered as the right in dispute (see Supreme Court Decision 83Meu1775, Apr. 9, 1985).

D) Determination as to Defendant 2

Examining the above facts in light of the following circumstances, the assignment of claims to Defendant 2 is not deemed necessary, reasonable or inevitable in society, and there is no other evidence to prove otherwise. Thus, Defendant 2’s aforementioned defense is without merit.

(1) Defendant 2 asserted that it was paid for the contribution, directly or indirectly, to the formation of the refund claim of this case, through strategic formulation, request for correction, comprehensive advice, etc. for refund of value-added tax of this case. However, around February 209, Defendant 2, as a consultant of DNA, agreed to receive performance fees of 15,00,000 won in return for the claim for correction of value-added tax of this case from DNA in return for the claim for correction of the value-added tax of this case, and filed the claim for correction of the value-added tax of this case. Since there was a disposition of refusal of correction from six chief of the regional tax office, etc., the compensation for the claim for the correction of value-added tax of this case was already received. In addition, there is no evidence to view that Defendant 2 contributed substantially to the acquisition of the refund claim of this case, such as the comprehensive and indirect advisory work, and the acceptance and acceptance of the lawsuit for revocation after the request for correction of value-added tax of this case, and there is no reasonable ground to deem that there were no other general certified and Nonparty 12.

(2) At the time of the conclusion of the advisory contract with Defendant 2, the case had already been decided to be entrusted to another attorney at the time of the conclusion of the advisory contract with Defendant 2, and it is doubtful whether the advisory contract itself was concluded in order to harm general creditors because it is difficult to deem it necessary to separately delegate the advisory duty to Defendant 2.

2) Determination on Defendant 2’s bona fide defense

A) Consumed legal principles

Even if an act is subject to avoidance under Article 391 Subparag. 1 of the Debtor Rehabilitation Act, if a person who receives benefit from such act was unaware of the fact that he/she would prejudice any bankruptcy creditor at the time of such act, it cannot be denied, but such beneficiary’s bad faith is presumed. As such, the beneficiary bears the burden of proof for the good faith (see Supreme Court Decision 2011Da56637, 56644, Oct. 13, 201). In a case where a biased act repaid to a specific creditor is subject to an intentional avoidance, the good faith of the beneficiary means that he/she was unaware of the fact that only the specific creditor makes repayment in order to avoid the principle of equality of creditors applied when bankruptcy proceedings commence.

B) However, even if Defendant 2 asserts that the amount of assignment to Defendant 2 is less than the amount of contingent remuneration agreed upon at the time of the advisory contract with Defendant 2, such circumstance alone alone is insufficient to reverse the presumption, and rather, in light of the time of the assignment as seen earlier and the situation at the time of the transfer, it seems that it was well aware that it would have been repaid preferentially to the general creditors at the time of the said transfer.

E. Sub-committee

Therefore, the Plaintiff’s exercise of the right to set aside against Defendant 2 is lawful. As such, the assignment of claims to Defendant 2 by the exercise of the right to set aside above loses its validity retroactively, and the claim for the refund of this case, which was the object of the transfer, is deemed to exist to the Plaintiff, who is the trustee in bankruptcy of D Cases. However, the part of the claim for refund of this case, among the claims for refund of this case, transferred by the assignment of claims of this case, was deposited by the Republic of Korea with the Seoul Central District Court in 2013, No. 899, 902, 903, 905, 906, 906, 912, and 2147, and in this case, Defendant 2 asserted the effect of the Plaintiff’

4. Conclusion

Therefore, the plaintiff's claim against the defendant 2 shall be accepted on the ground of its reason, and the claim against the defendant 1 shall be dismissed on the ground of its reasoning. Since the judgment of the court of first instance is just in conclusion, all appeals filed by the plaintiff and the defendant 2 are dismissed on the ground of its ground, and all appeals by the plaintiff and the defendant 2 are dismissed on the ground of its ground, and the plaintiff's claim is dismissed on the ground of its illegality, and it is obvious that the "906," in Paragraph 2 of the judgment of the court of first instance, "906

[Attachment Omission]

Judges Tae Tae-tae (Presiding Judge) and Park Young-young

1) The independent party intervenor asserted that the right to deposit KRW 11 billion exists between the Plaintiff and Defendant 1, and sought confirmation that the Plaintiff has the right to deposit KRW 10 million, which is part of the Plaintiff.

2) As long as the assignment of each of the instant claims constitutes a biased act under Article 391 Subparag. 1 of the Debtor Rehabilitation Act, determination is not made as to whether the Plaintiff constitutes a fraudulent act, which is the grounds for denial separately asserted by the Plaintiff.