New Co., Ltd. (Attorney Kim Yong-sik, Counsel for the plaintiff-appellant) which is a legal administrator of New Co., Ltd.'s legal administrator of New Co., Ltd.

Gyeonggi-do (Law Firm Marin, Attorneys Kim Young-young et al., Counsel for the plaintiff-appellant)

September 14, 2004

1. The defendant shall pay 1,54,60 won to the plaintiff from January 5, 200 to 36,440,490 won, 100,000 won from June 1, 200 to 382,059, 910 won from August 1, 200; 246,916, 40 won from September 1, 200 to 10.30,329,540 won from 20.3,000 to 20.4,00 per annum; 1.3,00.4,00 won from 2.0,000 to 3.6,00,000 won, respectively; 1,00.3,00,000 won from 2.4,329,540; 1,000 won from 2.0,000 won from 1,200,000 won;

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 1,544,600 won and 366,440,490 won among them, 100,000 won from January 5, 200; 382,059,910 won from June 1, 200 to August 1, 200; 246,916,40 won from September 1, 200 to 110,329,540 won; 10,329,540 won from the date following the date of complete payment to 366,40,000 won from the date of complete payment to 36,440 won; 10,000 won from the date of complete payment to 36,00,000 won from the date of complete payment to 10,000 won per annum; 20,000 to 14,000 won from the date of full payment to 36,501,200.

1. Basic facts

The following facts shall not be disputed between the parties, or may be recognized by comprehensively considering the purport of the entire pleadings in each entry in Gap evidence (number omitted; hereinafter the same shall apply) and Eul evidence (number omitted) 1 through 6:

A. The Seoul District Court Decision 98Ma595 against the plaintiff was issued on November 16, 1998 with respect to the non-party 1, 1993, the first meeting of interested parties was held on January 13, 1999 and the second meeting of interested parties was held on October 5, 199, and each reorganization was issued on December 3, 199, and the plaintiff (hereinafter referred to as "new development company") was merged in accordance with the reorganization program under the above reorganization program.

On June 15, 2004, the company reorganization procedure was completed in the course of the reorganization company with respect to New Coins.

B. (1) The Plaintiff acquired, on March 28, 1997, 161 and 5 parcels of Geumdong-gu, Sungnam-si and 161, and reported the acquisition value of the land to 34,276,568,823 won in total, 96,250,586,314 won, and paid taxes, such as acquisition tax and registration tax, on January 23, 1997, 358-2 and 3 parcels of the 358-2, and 1997, and on March 24, 1997.

(2) On the ground that the acquisition value reported by the Plaintiff does not include any construction interest, etc., the head of the Sung-nam-si branch adjusted the acquisition value of the land on July 26, 200 to KRW 81,112,264,520, the acquisition value of the building was adjusted to KRW 37,464,774,801, and notified the difference between the initial report amount and the acquisition tax.

(3) Accordingly, the reorganization company New Co., Ltd. received the deferment of collection (payment permission) for the acquisition tax and registration tax notified as above for the serious business crisis of the company, such as the company's business crisis, and paid a total of KRW 766,251,050 as follows.

Amount of tax on the date of payment of the tax items included in the main sentence of July 31, 200, the acquisition tax of KRW 177,059,910 on August 31, 200, KRW 140,000 on August 31, 200, KRW 617,930 on September 30, 200, KRW 6,711,610 on September 30, 200, KRW 140,000 on October 31, 200, KRW 140,000 on November 30, 200, KRW 58,861,60 on January 2, 201.

C. (1) After the start of January 27, 1996, the department store and parking lot construction work on the ground of the same 11-1 through 4, 10, Dong-dong, Sungnam-si, Sungnam-si, and the same 10, etc., the new transport development reported the acquisition value and made a report thereon, and paid taxes such as acquisition tax and registration tax.

(2) On the grounds that the acquisition value reported by the new town development does not include the construction interest, etc. spent in connection with the acquisition, the head of Sung-nam branch issued a notice of the acquisition tax and registration tax imposed on KRW 10,137,51,517, which is the difference between the initial return and the initial return amount, after correcting the acquisition value on December 14, 199.

(3) Accordingly, New Coins paid a total of KRW 366,440,490 as follows as acquisition tax and registration tax notified as above.

The amount of the tax payment date of the table contained in the main sentence shall be the acquisition tax of January 4, 200, 243,300,250 won; and the registration tax of January 4, 200, 123,140,240 won;

D. (1) As between September 5, 1994 and September 30, 1994, new transport development acquired 22 lots of land located in Gyeonggi-gun 105-1, etc. for the purpose of the department store, etc., and reported the acquisition value to KRW 2,470,00,691, and paid taxes, such as acquisition tax.

(2) On April 1, 200, the non-party 1 notified that acquisition tax was imposed on the difference between the initial tax amount and the tax amount paid, applying 15% of acquisition tax, on the ground that the non-party 1 did not use the land within one year from the date of acquisition of new town as a real estate for non-business use since it was not used for the corporation’s business.

(3) Therefore, as seen earlier, New Co., Ltd. received deferment of collection for the acquisition tax notified as above, and paid the sum of KRW 411,916,440 as follows.

Acquisition tax on the amount of the tax item payment date contained in the main sentence of May 31, 200, KRW 100,000,000 on July 31, 200, KRW 100,000 on July 31, 200, KRW 105,000 on July 31, 200, KRW 85,320,100 on August 31, 200, KRW 21,596,340 on August 31, 200.

E. However, the Defendant did not report each of the above acquisition tax and registration tax (hereinafter “instant tax”) against the Plaintiff and New Airport Development in each of the above company reorganization procedures.

2. Determination

(a) Whether it falls under reorganization claims, and effects of forfeiture or extinguishment due to failure to report;

(1) Where a tax claim against the reorganization company is established by satisfying the taxation requirements under the law before the commencement order of the reorganization company, the taxation claim becomes a reorganization claim even after the commencement of reorganization proceedings, and the taxation claim against the reorganization company ceases to exist unless it is reported without delay under Article 157 of the Company Reorganization Act (the time when the formulation of the reorganization programs is not hindered, i.e., the time prior to the second meeting of interested parties, which is the time prior to the date of the hearing of the reorganization programs, and the date of the second meeting of interested parties), under Article 157 of the Company Reorganization Act (see Supreme Court Decision 93Nu1417, Mar.

(2) According to the above facts, acquisition tax and registration tax claims mentioned in Paragraph (b) above 1-B and paragraph (c) of the defendant's plaintiff and new transport development were acquired and registered, and acquisition tax claims mentioned in Paragraph (d) above for the defendant's new transport development were established at the time one year has not been used for the corporation's business within one year, that is, when one year has passed from the time of acquisition, respectively. Thus, tax claims mentioned in Paragraph (b) above 1-B were established at the time of acquisition through January 1 through March 3, 1997, tax claims described in Paragraph (c) above 1-C were respectively established around April 1997 and around September 195, the tax claims described in Paragraph (d) above 1-C were established. Accordingly, the above tax claims in this case are reorganization claims of each company reorganization procedure.

(3) However, since the defendant did not report the tax claim of this case as reorganization claim in each of the above reorganization procedures, due to the existence of a decision to approve reorganization plans after the second meeting of interested parties, the reorganization company has been exempted from its liability. Here, the forfeited and extinguished tax claim has been exempted from its liability, and it is reasonable to view that it still exists as natural debt of the meaning that it cannot enforce its performance to the company, although the tax claim itself exists, (see Supreme Court Decision 2001Da3122 delivered on July 24, 2001).

(b) Whether the amount of taxes paid by New Zealand constitutes unjust enrichment;

(1) The plaintiff asserts that the tax imposition disposition based on the already extinguished tax claim by the head of Sungnam-si branch office and the Gyeonggi-si Gun (hereinafter "the tax authority of this case") is null and void as the illegality is significant and clear, and the above tax imposition disposition is null and void. The defendant of the person to whom the tax of this case belongs, as the reorganization company paid the tax of this case in accordance with the disposition, is Do tax without any legal grounds, and thus, it shall be returned as unjust enrichment. Even if the tax obligation of this case continues to exist as natural debt, it constitutes unjust enrichment as long as it was paid in accordance with the tax imposition disposition, which is void as above.

On the other hand, the defendant asserts that as long as the pertinent tax liability exists as the pertinent tax liability exists as natural debt, the voluntary repayment of the reorganization company is valid and no unjust enrichment is established, and the defect of the instant tax imposition disposition is not obvious in appearance, and thus it cannot be viewed that the said disposition is void as a matter of course.

(2) As seen above, the instant tax liability remains in existence as a natural debt, and the natural debt is an irrecoverable debt, but it is only effective as a repayment of the debt only when the debtor performs it at will, and it does not constitute unjust enrichment.

The defendant asserts that there is a voluntary repayment of New Zealand by the reorganization company, while the plaintiff asserts that the repayment of the tax in this case is made due to illegal tax imposition. According to the above recognition facts, the reorganization company's act of paying the tax in this case is a voluntary performance of the tax obligation, and the reorganization company's head of Sungnam-si and the head of Gyeonggi-si are subject to a disposition of imposing additional tax on the tax amount added to each acquisition tax or registration tax, and the plaintiff and New Zealand are faced with a serious business crisis, such as the company reorganization proceeding for the development of New Zealand, etc., they may apply for the deferment of collection and payment of the tax in this case with the permission of each tax authority, and it can be acknowledged that the tax authority imposed additional tax on the taxpayer, criminal punishment, or criminal punishment on the taxpayer's failure to pay the tax in accordance with the tax imposition disposition, and considering the fact that tax claims are strong and it is practically difficult for the taxpayer to refuse the disposition of this case because of the strong compulsory performance of tax imposition, it is difficult for the taxpayer to arbitrarily pay the tax in this case.

(A) According to each of the above evidence, the administrator of New Coins, New Cos, Ltd, may be aware of the fact that he had been granted the deferment of collection from the tax authority of this case with the permission of the court on the installment payment plan of this case, but it does not mean that the tax payment act of this case is not granted.

Therefore, since the liquidation company's tax payment of the instant tax obligation, which is a natural obligation, cannot be called a voluntary repayment, the Defendant made unjust enrichment due to the payment of the said tax, and the Defendant should return to the Plaintiff the amount paid as the instant tax.

(3) Meanwhile, on the premise that the tax imposition disposition by the instant tax authority is not void as a matter of course, the Defendant asserted that, as long as the tax imposition disposition is not invalid as a matter of course, the tax paid therefrom is not unjust, and thus, it cannot be claimed as a return.

However, as long as the tax liability of this case was exempted due to the absence of a report on reorganization claim in the company reorganization procedure, the determination of whether the payment based on the exempted obligation is subject to return as unjust enrichment depends on whether the payment is a voluntary repayment, and even if a tax imposition disposition based on the already extinguished claim is delayed later, the determination of the degree of defects in the disposition cannot be deemed as a new standard of determining the degree of defects in the disposition. However, the existence of the disposition can only be an element of consideration to determine whether the payment is a voluntary repayment.

However, since the parties dispute the establishment of unjust enrichment on the basis of the defect of the tax imposition disposition, the above taxation claim is extinguished by making the taxation claim of this case as a reorganization claim, since the tax authority of this case did not report the tax claim of this case as a reorganization claim, and the above taxation claim becomes extinct by making the decision to approve the reorganization plan in such circumstances. The tax imposition disposition that was issued to the company under the reorganization procedure based on the extinguished taxation claim becomes null and void as a result of significant apparent and external appearance of the defect, even if there was a decision to commence the reorganization procedure by the court as to the plaintiff and new town development (the evidence No. 2 of this case shows that such commencement of reorganization procedure was published and announced in the Official Gazette.

However, even if the family defect constitutes a simple cause for revocation, as argued by the Defendant, if, after the tax imposition disposition was first issued, the decision to commence reorganization proceedings was not filed but the decision on commencement of reorganization claims was not filed, the relevant tax claim becomes legal effect under the Company Reorganization Act. As in the instant case, it is inconsistent with the balance that the establishment of unjust enrichment depends on the discussion of new defects in the disposition following the commencement of reorganization proceedings after the commencement of reorganization proceedings and the approval of reorganization programs.

In light of this, the above obligation to return unjust enrichment, which is recognized as a result of the voluntary repayment of the exempted natural obligation, does not change depending on the degree of the defect in the tax imposition disposition.

(4) In addition, the defendant asserts that the pertinent tax payment act of New Zealand constitutes a repayment in conformity with the concept of the Do under Article 744 of the Civil Code and thus it cannot be claimed for its return (it seems that the defendant gives the same argument in preparation for a case where the tax obligation is not considered to be a natural obligation but to be completely extinguished. However, the above argument is made even in a case where the tax imposition disposition is deemed to be null and void as a matter of course) and the above Article 744 of the Civil Code provides that the case where the non-performance of the obligation is performed, and if it is deemed that there is a natural obligation such as this case, the above argument by the defendant

C. As to the scope of return

(1) According to the above, the defendant is ultimately obligated to pay to the plaintiff the sum of the amount paid by the liquidation company to the head of the Gyeonggi-si branch and the Gyeonggi-do Gun for the total of the 1,544,607,980 won (=76,251,050 won (the above 1-B) + 366,440,490 won (the above 1-B) + 41,916,440 won (the 1-D) + 411,916,440 won (the 1-D) and the legal interest or delay damages.

(2) However, the plaintiff claims interest under Article 46 of the Local Tax Act and Article 39 of the Enforcement Decree of the same Act at the rate of 7.3% per annum (by 2/10,000 per annum) from the day following each payment date until the day of delivery of a copy of the complaint of this case, and damages for delay at the rate of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day, it shall be calculated with interest rate of 10%. Article 46 of the Local Tax Act provides that "the interest rate of erroneous payment shall be 2/10,000 per annum." Article 39 of the Enforcement Decree of the same Act provides that the above rate of repayment interest shall be 2/10,000 per annum, and the interest rate of 20/10,000 from 200 to 3/10,000 of the Enforcement Decree of the Framework Act on National Taxes shall be 20/10,000.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 1,54,607,980 won, 36,400 won from January 5, 200, 100, 380,000 won from June 1, 200, 382,000 won from June 1, 200, 382,059,910 won from August 1, 200, 200, 20.6% from 2.0,000,000 won from 2.0,000,000 won from 2.0,000,000 won from 2.0,000,00 won from 2.0,000,00 won from 2.3,00,000 won from 2.6,00,000 won from 2.0,010,00 won from 2.6,00 won from 2,010.

Judges Han Chang-ho (Presiding Judge)