Samdong Juvenile Association (Attorney Han-hee et al., Counsel for defendant-appellant)

Jung-gu, Daejeon Metropolitan City (Law Firm Seosan, Attorneys Na-soo, Counsel for the plaintiff-appellant)

September 29, 2016

Daejeon District Court Decision 2015Guhap106034 Decided June 23, 2016

1. The judgment of the court of first instance is modified as follows.

A. The Defendant shall pay to the Plaintiff 317,603,552 won with 5% interest per annum from November 1, 2013 to October 20, 2016, and 15% interest per annum from the next day to the day of full payment.

B. The plaintiff's remaining claims are dismissed.

2. 3/10 of the total litigation cost shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

3. The above paragraph 1(a) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 453,719,360 won with 5% interest per annum from November 1, 2013 to the service date of a copy of the complaint, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. The Plaintiff is a non-profit incorporated association established on January 18, 1989, which is an organization affiliated with the kindergarten and established on January 18, 198 for the purpose of the youth training project. The Plaintiff entered into an agreement with the Defendant on the operation, management, and entrustment of the youth training center (hereinafter “instant training center”) with the Defendant around August 1998, and has been managing and operating the instant training center in several times since the said agreement was renewed.

B. On December 3, 2012, the director of the Daejeon District Tax Office omitted filing a report on KRW 3,720,776,00, including swimming pool services provided by the Plaintiff to the general public for the taxable period from January 2007 to January 2012, 201, on the ground that the Plaintiff failed to report and pay the value-added tax (hereinafter “instant disposition”), on the grounds that the Plaintiff’s failure to report and pay KRW 440,50,320, total value-added tax on the said taxable period, including rental fees, rental fees, and incidental business expenses, received from the general public while operating the instant training center (hereinafter “instant disposition”).

C. In response to the instant disposition, the Plaintiff filed an objection and filed a national tax appeal against the instant disposition. However, the Plaintiff deemed that the Plaintiff’s services provided to the general public while operating the instant training center do not constitute actual expenses for the proper purpose business under Article 12(1)16 of the Value-Added Tax Act. According to the entrustment contract or municipal ordinances related to the operation of the youth training center, the user fees for the use of the youth training center may be collected from the general public, but such support programs may also be deemed as part of the proper purpose business, and if included in the subject-matter of value-added tax exemption, it may be contrary to the purport of the establishment of the youth training center, and the service revenue received from the general public reaches 5-6 billion won compared to the gross income related to the swimming pool, and thus, the Plaintiff’s services provided to a person other than the juvenile are not related to the youth training activity, and thus, the tax authority was dismissed all on the grounds that the disposition imposing value-added tax is justifiable.

D. On October 31, 2013, the Plaintiff paid KRW 453,719,360 in total, value-added tax and additional dues upon the instant disposition.

[Ground of recognition] The fact that there is no dispute, entry of Gap 2, 3, 4 through 16 (including branch numbers; hereinafter the same shall apply) and the purport of whole pleadings

2. The assertion and judgment

A. Summary of the parties' assertion

1) Plaintiff

According to the instant disposition, the Plaintiff’s payment of KRW 453,719,360 in total of value-added tax and additional dues constitutes a case where damage was incurred without negligence for the management of delegated affairs based on the instant consignment contract. Therefore, it is reasonable for the Plaintiff to ultimately bear the value-added tax and additional dues in terms of the obligor’s right to claim reimbursement of expenses or the right to claim restitution of unjust enrichment or the right to claim restitution of unjust enrichment. Therefore, the Defendant is obliged to pay the Plaintiff the above KRW 453,

2) Defendant

A) In the interpretation of the Ordinance on the Establishment and Entrusted Operation of Youth Training Facilities in Daejeon Metropolitan City (No. 1; hereinafter “the instant Ordinance”) and the provision on the instant consignment contract, the Plaintiff agreed to bear the expenses incurred in the operation of the instant training center. The value-added tax and additional dues, etc. upon the instant disposition are also the expenses incurred in the operation of the instant training center, and thus, the Plaintiff should bear the burden (i).

B) Even if the Plaintiff is liable to pay the amount equivalent to the value-added tax to the Defendant, given that the Plaintiff was unable to collect value-added tax due to its own fault and caused damages equivalent to the amount of the claim amount to the Defendant, the Defendant became liable for damages against the Plaintiff, and both claims should be offset against the equivalent amount (B).

(b) Fact of recognition;

The following facts can be acknowledged in light of the above evidence and the evidence Nos. 1 and 17 and the purport of the entire pleadings.

1) The main contents of the instant consignment contract concluded by the Plaintiff and the Defendant are as follows.

본문내 포함된 표 대덕구청소년수련관 운영·관리 위·수탁 협약서 대전광역시 대덕구청장(이하 “갑”이라 한다)은 『대덕구 청소년수련시설의 설치 및 운영에 관한 조례』(이하 “조례”라 한다) 제4조 및 제5조의 규정에 의하여 대덕구청소년수련관(이하 ‘청소년수련관’이라 한다)의 관리·운영을 사단법인 삼동 청소년회(이하 “을”이라 한다)에 위탁함에 있어 다음과 같이 협약을 체결한다. 제1조(목적) 이 협약은 건전한 청소년육성을 위하여 건립된 청소년수련관의 효율적인 관리·운영을 위해 “갑”이 “을”에게 시설의 관리·운영을 위탁함에 있어 필요한 사항을 규정함을 목적으로 한다. 제4조(위탁업무) 이 협약에 의해 “갑”이 “을”에게 위탁하는 업무의 범위는 다음과 같다. 1. 청소년수련관 내 각종 시설물 등 수탁재산의 유지 및 관리 2. 청소년을 위한 다양한 체험활동 프로그램의 개발과 운영 3. 청소년의 자치, 자율활동의 지원 4. 청소년의 자질 향상과 역량개발의 지원 5. 지역주민의 문화스포츠 교실 및 평생교육의 장 6. 기타 “을”이 제출한 사업계획으로 “갑”이 승인한 사항 7. “갑”이 필요하다고 인정한 사업 등 제5조(수탁재산 등의 관리) ① “을”은 수탁재산에 대한 연고권, 매수권 등의 권리를 주장할 수 없으며, 멸실 또는 불용재산을 처분할 수 없다. 또한 수탁재산을 제3자에게 매매, 양여, 교환, 권리설정, 대여, 교환하거나 재위탁할 수 없다. 다만, 서면으로 “갑”의 승인을 얻었을 경우에는 그러하지 아니하다. ② “을”은 수탁재산에 대하여 선량한 관리 의무자로서 성실한 역할 수행을 위해 시설대장 및 운영장비, 물품대장을 작성·비치하고, 그 사본을 “갑”에게 제출하여야 하며, 기재사항이 변동된 경우에는 즉시 해당 대장에 기록·유지하고, 이를 반기별로 “갑”에게 보고한다. ③ “을”은 청소년수련관의 안전 유지 관리에 책임을 지며, 시설의 일반적인 개·보수 및 유지관리 등에 대해서는 “을”의 부담으로 하며 “을”이 시설의 개·보수를 요청하여 “갑”이 필요하다고 인정하는 경우에 한하여 “갑”이 시행한다. 또한 “을”은 재산상의 손실, 망실 또는 훼손에 대하여 “갑”에게 변상하여야 한다. 다만, 천재지변이나 불가항력적인 사고인 경우에는 그러하지 아니하다. ④ “을”은 위탁운영과 관련하여 취득한 재산(물품 포함) 및 지적재산권, 시설 신·증축, 개·보수에 관해 “갑”의 재산으로 귀속되며 “을”은 어떠한 권리도 주장할 수 없다. ⑤ “을”은 청소년수련관 운영에 필요한 시설물을 신·증축, 개·보수 또는 멸실하거나 새로운 기능 변경·추가 및 건당 300만 원 이상의 물품·장비를 구입코자 하는 경우, 물품 등 동산이 사용불능 또는 자연소모로 폐기처분할 경우에는 사전에 “갑”의 승인을 얻어야 한다. ⑥ “을”은 수탁재산을 관리함에 있어 관계법령 등에 따라 시설에 대해 정기 및 수시 안전점검을 실시하여야 한다. 제7조(사업의 계획, 예산 및 결산승인) ① “을”은 회계연도 개시 5일전까지 시설의 관리 운영에 관하여 다음연도 사업계획서 및 예산서를 이사회의 의결을 거쳐 “갑”에게 제출하여야 하여 “갑”의 승인을 받아야 한다. ② “을”은 추가경정예산이 확정된 날로부터 7일 이내에 “갑”에게 제출하여 승인을 받아야 한다. ③ “을”은 매 회계연도 종료 후 연간 사업실적 및 결산서를 작성하여 공인회계사의 결산검사를 받은 후 1월 이내에 “갑”에게 제출하여야 한다. ④ 예산, 결산, 회계 업무는 「지방재정법」, 「대전광역시대덕구재무회계규칙」, 「대전광역시대덕구보조금관리조례」 등을 준용한다. 제9조(비용의 부담) ① 청소년수련관 수탁운영에 따른 비용은 “을”이 부담하여야 하며 “갑”은 예산의 범위 안에서 그 운영에 필요한 경비의 일부를 보조할 수 있다. ②“을”은 위탁운영 신청시 제출한 운영비 자체부담액(후원금, 사업수익금, 기타수익금 등을 제외한 현금)으로 총액 일금 육천만원(\60,000,000) 2013년도에 20,000,000원, 2014년도에 20,000,000원, 2015년도에 20,000,000원을 해당연도에 부담하여야 하며, “을”이 이를 이행치 않는 경우에는 협약서 제15조(협약의 해지) 제2항 제1호에 해당되어 “갑”은 협약을 해지할 수 있다. 제10조(사용료 등의 징수) ① “을”은 위탁사무와 관련하여 이용자에게 사용료를 징수할 수 있다. ② “을”은 제1항의 규정에 의하여 사용료를 징수할 경우에는 조례 및 같은 조례 시행규칙에 의하고, 별도의 사용료 등의 징수는 사전에 “갑”의 승인을 받아야 한다. 제16조(재산반환 및 원상회복) ① 위탁기간이 만료되거나 협약이 해지된 때에는 “갑”과 “을”은 합동으로 위탁재산의 이상 유무를 점검한 뒤 이상이 있는 재산이 있는 경우에는 이를 원상복구하거나 “갑”에게 시가로 배상하여 반환하여야 하며, 이에 수반되는 비용은 “을”의 부담으로 하고, “을”은 이에 대하여 이의제기 및 민사상의 어떠한 청구도 하지 못한다. ② “을”은 위탁재산을 반환하는 때에는 위탁사무와 관련한 각종 서류와 보조금 집행내역서 및 집행잔액 등을 함께 반환하여야 한다.

2) Article 4(1) of the Ordinance of this case provides that “The head of the Gu may entrust the operation of training facilities to juvenile organizations, etc. pursuant to the provisions of Article 16 of the Juvenile Activity Promotion Act in order to efficiently operate the training facilities,” and Article 10 of the Ordinance provides that “In principle, expenses incurred in the operation of training facilities shall be borne by the income of facility usage fees, etc. and by the trustee: Provided, That where the head of the Gu deems it necessary, all or part of the expenses incurred in the operation of the training facilities may be subsidized to the trustee, and the expenses incurred in the operation of the training facilities shall be borne by the trustee and the support for the operation of the training facilities.” Meanwhile, Article 8 of the Ordinance of this case provides that “The standards for the collection of training facility usage fees and tuition fees shall be as specified in attached Table 2 [Attachment 2]: Provided, That in the case of entrusted operation pursuant to Article 4, the trustee

A person shall be appointed.

3) On March 20, 2014, the head of the training center of this case sent a public letter of the request for the collection of value-added tax on facility usage fees and the amendment of the Ordinance to the Seodaemun-gu Office, and requested the revision of the Ordinance to the effect that “The usage fees, etc. to be paid by users using the facility in accordance with the Ordinance of this case are determined. According to Article 8 of the Ordinance, the collection of usage fees may be determined with prior approval of the head of the Gu, and usage fees and tuition fees shall be determined in accordance with the attached Table of the said provision. Accordingly, the head of the training center of this case requested the revision of the Ordinance to the effect that “the request for cooperation shall be made so that the value-added tax may be applied to the swimming pool, other rental fees and ancillary facilities usage fees.”

C. Determination on the cause of the claim

In light of the following circumstances, which can be recognized by the facts and the purport of the entire pleadings, it is reasonable to deem that the Defendant is obligated to ultimately bear the value-added tax and the additional tax 453,719,360 won according to the instant disposition. As the Plaintiff paid the value-added tax and the additional tax in lieu of the above value-added tax and the additional tax, the Defendant is obligated to return it to the Plaintiff with unjust enrichment (hereinafter “the Plaintiff’s claim for return of unjust enrichment”).

① Article 8 [Attachment 2] of the instant Ordinance provides that only the fee corresponding to the above amount may be collected by fixing the instant training hall usage fee, and the prescribed usage fee does not include value-added tax. Furthermore, the instant Ordinance or the instant consignment contract does not include any provision regarding the collection of value-added taxes arising in relation to the operation of the instant training hall. Considering the above, the Plaintiff and the Defendant did not fully recognize that the instant consignment operation of the training hall constitutes subject to value-added tax, not only at the time of the instant consignment contract, but also at the time of the instant consignment contract, until the instant disposition of imposition was made. Accordingly, this part was not considered in the process of compiling budget and calculating the usage fee of the training hall. As such, the Defendant did not consider the collection portion of the said value-added tax while compiling the budget, and even if the Plaintiff did not consider the amount equivalent to value-added tax in determining the amount of usage fee that the Plaintiff is able to collect through the instant Ordinance, the Plaintiff was not able to collect value-added tax from the instant training hall users

② For entrusted operation of the instant training center, it seems inevitable to allow ordinary people, other than juveniles, to use the instant training center (see, e.g., Supreme Court Decision 2006Do128, Apr. 2, 2008). Therefore, the burden of value-added tax on the use of the instant training center may be borne by the expenses incurred in performing the instant consignment contract.

③ As such, the value-added tax generated in relation to the operation of the instant training center is necessary for the performance of the instant consignment contract, which is entirely anticipated by the Plaintiff and the Defendant, and is for the performance of the delegated agent’s affairs, and thus, it is fair that the delegating agent ultimately bears the burden (Article 688(1) of the Civil Act also provides that “When the mandatary has paid necessary expenses for the management of delegated affairs, he/she may claim interest from the delegating person after the date of payment thereof).”

D. Judgment on the defendant's assertion

1) As to the argument

As seen earlier, the value-added tax arising in relation to the operation of the instant training center is realized when both parties were unable to predict in the process of concluding the instant entrustment contract, and it cannot be deemed that the said value-added tax is included in the “expenses incurred from the entrusted operation” under Article 9(1) of the said contract, which the Plaintiff and the Defendant planned in entering into the instant entrustment contract. Accordingly, the Defendant’s assertion on a different premise is rejected.

2) As to the argument

In light of the following circumstances that can be recognized by the overall purport of the evidence and arguments, namely, the view of the tax authority that the service supplied to the general public during the operation of the training center of this case, which is a juvenile training center of this case, does not constitute an actual cost for the proper purpose business stipulated in Article 12 (1) 16 of the Value-Added Tax Act, is expected to be sufficiently anticipated in light of the purport of the above provision. Accordingly, the Plaintiff, a trustee, according to the judgment of the Republic of Korea, is obligated to confirm the liability for value-added tax in advance by questioning the tax authority as to whether the Plaintiff is liable for the payment of value-added tax, and if the Plaintiff was negligent in receiving the fees from the general public and did not receive value-added tax, it cannot be deemed that there is no legal cause for the occurrence of the damage, and the Plaintiff’s negligence cannot be entirely denied solely on the ground that the Plaintiff was unable to know such fact or that the Defendant was unaware of such fact. Accordingly, the Plaintiff is liable to compensate the Defendant for damages after the aforementioned loss.

However, in full view of the following circumstances as seen earlier, it is reasonable to limit the Plaintiff’s liability for damages against the Defendant to KRW 136,115,808 (i.e., KRW 453,719,360 x 0.3) and KRW 0.0.3) If the Defendant, the subject of management and supervision, was unable to recognize the possibility of taxation of the value-added tax, and the value-added tax was not fully reflected in the usage fees stipulated by the ordinance of this case. If the value-added tax was reflected in the ordinance of this case, it would have been deemed that the Plaintiff did not incur the value-added tax, and the above value-added tax has the nature of expenses necessary for the execution of the instant consignment contract. The Plaintiff’s liability for damages against the Defendant should be limited to KRW 317,630,520,5371,5381,536,537,581,537,500).

E. Sub-committee

Therefore, as the Defendant seeks from November 1, 2013, the following day after the day when the value-added tax and the additional dues pursuant to the instant disposition were paid to the Plaintiff, as the Plaintiff seeks, 5% per annum under the Civil Act until October 20, 2016, and 15% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings (the Plaintiff is seeking 20% per annum from the interest rate for delay, but the interest rate of 15% per annum from September 25, 2015 to October 1, 2015, this part of the claim is not accepted).

3. Conclusion

Thus, the plaintiff's claim is accepted within the scope of the above recognition, and the remainder is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is partially accepted, and the judgment of the court of first instance is modified as above.

The judge’s seat (Presiding Judge) Kim-type crime