No shares which have not been issued may be asserted against any third person other than the debtor without notification or consent by a certificate with a certified fixed date.

There is no assertion or proof that the transfer of shares in this case had been notified or consented by a certificate with a fixed date. Thus, the plaintiff cannot set up against the defendant, who is a third party other than the debtor, the validity of the transfer of shares in this case.

Article 24 of the National Tax Collection Act

Incheon District Court-2017-Gu 53044 (Law No. 13, 2018)

Oi-ri, Do governor1

★★★세무서장

March 9, 2018

March 13, 2018

1. The plaintiff Kim ○-○ shall be dismissed.

2. The Plaintiff’s claim is dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

Cheong-gu Office

The defendant confirms that the seizure disposition against the plaintiffs by the defendant on October 22, 2013 against the shares listed in the separate sheet No. 1 is null and void.

1. Details of the disposition;

A. On September 30, 2012, the Defendant: (a) determined and notified each of the total income tax of KRW 3,418,000, the notified tax amount, KRW 3,418,00, and KRW 72,025,450, to the Plaintiff, Seoul Special Self-Governing Province; and (b) determined and notified each of the following on September 20, 2012, KRW 4,316,610; and (c) notified the notified tax amount, KRW 3,418,00.

나. 피고는 2013. 10. 22. 주권이 발행되지 않은 별지1 목록 기재 주식회사 ●●●●산업(이후 상호가 주식회사 ◎◎◎◎개발로 변경되었고, 이하 '●●●●산업'이라 한다) 주식(이하 '이 사건 주식'이라 한다)을 원고 오☆☆의 소유로 보고, 체납세액 징수를 위하여 이 사건 주식에 대하여 압류처분(이하 '이 사건 압류처분'이라 한다)을 하였다.

다. ●●●●산업은 2013. 4. 1. 임시주주총회를 개최하였는데, 원고들은 사내이사 겸 주주로서 위 총회에 참석하여 원고 김○○을 사내이사로 선임하는 결의를 하였고, 위회사의 사내이사이던 원고 오☆☆은 2013. 4. 14. 퇴임하였다.

라. 원고들 사이에 2013. 4. 6.자로 원고 오☆☆이 원고 김○○에게 이 사건 주식을 1주당 5,000원으로 정하여 양도하고, 원고 김○○은 계약 당일 그 대금을 일시불로 지급하기로 하는 내용의 주식양도양수계약서(갑 제5호증)가 작성되었고, 2016년 12월을 기준으로 ●●●●산업의 주주명부에도 원고 김○○이 이 사건 주식의 소유자로 등재되었다.

마. ●●●●산업은 2014. 3. 31. 원고 오☆☆이 2013. 4. 6. 원고 김○○에게 이 사건 주식을 양도한 것으로 주식등변동상황명세서 등을 작성하여 제출하였다.

F. On April 6, 2013, Plaintiff, Seoul Special Self-Governing Province, asserting that it transferred the instant shares to Plaintiff Kim ○○, and filed a return and payment after the deadline for securities transaction tax on November 21, 2013.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 7, Eul evidence 4 and 5 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's defense

With respect to the claim for nullification of the attachment disposition of this case against the Defendant on the ground that the Plaintiff Kim ○○ was the owner of the instant shares, the Defendant did not have any influence on the legal relationship of the Plaintiff Kim ○○’s shares due to the attachment disposition of this case, and thus, the Plaintiff Kim ○○ did not have any legal interest in seeking nullification of the attachment disposition of this case.

B. Determination

Since the seizure of claims is only a relative effect between an execution creditor and a debtor, if a seized claim belongs to a third party’s right other than a taxpayer, such seizure disposition is no longer effective as it is the seizure of a claim that does not exist. Since a claim that does not belong to a taxpayer does not have any influence on the legal relationship with the third party debtor of the third party who is the real right holder even if a claim that does not belong to a taxpayer is seized, a third party may dispose of the claim, claim the performance of the obligation to a third party, and the third party debtor shall not be prohibited from performing the obligation to a third party. Therefore, a person who claims that the seized claim belongs to himself/herself as a right of the tax authority regarding the disposition of seizure does not have any legal interest in seeking the revocation or nullification of the seizure disposition (see, e.g., Supreme Court Decision 2003Du4959, Jul. 9,

In light of the above legal principles, as long as the seizure disposition of this case is for the shares owned by the Plaintiff △△△, the Plaintiff △△△△ as the delinquent taxpayer, the Plaintiff △△○ is still entitled to exercise the right to the shares of this case regardless of the seizure disposition of this case, and it cannot be deemed that any rights or legal interests are infringed due to the seizure disposition of this case.

Thus, the plaintiff Kim ○-○ applied for the cancellation of the attachment disposition of this case to the defendant as the owner of the shares of this case, and there is no legal interest in seeking confirmation of invalidity of the attachment disposition of this case, and therefore the defendant's principal safety defense is justified.

3. Determination on the legitimacy of the disposition

A. Summary of the plaintiff Oi-ri △△

① 주권이 발행되지 않은 이 사건 주식에 대한 압류처분은 채권의 압류절차에 따라야 하는데, 제3채무자인 ●●●●산업에게 압류통지서가 송달되지 않았으므로, 이 사건 압류처분은 그 효력이 발생하지 않아 무효이다. ② 원고 오☆☆은 2013년 3월 무렵 원고 김○○에게 이 사건 주식을 1주당 5,000원으로 정하여 양도하였으나, 그 매매대금에 대하여는 2013. 4. 6. 원고 김○○에 대하여 부담하던 채무와 상계하기로 합의하고 주식양도양수계약서를 작성하였는바, 이 사건 압류처분 당시 이 사건 주식은 원고 김○○에게 양도되었으므로, 이 사건 압류처분은 납세자가 아닌 제3자의 재산을 대상으로 한 것으로서 무효이다.

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

C. Determination

1) Determination as to the assertion

을 제1, 2, 5호증의 각 기재에 변론 전체의 취지를 종합하면, 피고가 2013. 10. 22. ●●●●산업에게 등기우편의 방법으로 이 사건 압류처분 통지를 발송한 사실을 인정할 수 있는바, 이 사건 압류처분 통지가 도중에 유실되었거나 반송되었다는 등의 특별한 사정에 대한 반증이 없는 이상 이는 그 무렵 ●●●●산업에게 송달되었다고 추정되고(대법원 1992. 3. 27. 선고 91누3819 판결 등 참조), 이에 어긋나는 갑 제8호 증의 기재는 이를 그대로 믿기 어렵다. 결국 원고 오☆☆의 위 주장은 이유 없다.

2) Judgment on the argument

On April 1, 2013, Plaintiff ○○ attended the temporary general meeting of shareholders held on April 1, 2013 as Plaintiff △△△ and an internal director at the above general meeting. Plaintiff △△△ was appointed as an internal director on the 13th day of the same month, and the agreement on stock transfer was made between the Plaintiffs as of April 6, 2013, and Plaintiff ○○ recorded the instant shares in the shareholder registry as of December 2016, and Plaintiff △△△○ was transferred the instant shares to Plaintiff ○○○ on April 6, 2013. Meanwhile, it is difficult to recognize that the instant shares at the time of the instant attachment disposition were transferred to Plaintiff ○○○○○○, and there was no other evidence to recognize otherwise. Plaintiff △△△△△△△△△△△△△△△△, the date of the instant attachment disposition after the date of the transfer of shares, which falls under the 20th day of the instant securities transaction tax, within 13 months after the date of the attachment.

The Plaintiffs: (a) the Plaintiff, at the complaint, transferred the instant shares to the Plaintiff Kim ○○, on April 6, 2013, to the Plaintiff 5,000 won per share; and (b) on April 6, 2013, the Plaintiff Kim ○○ claimed that the Plaintiff paid the full amount of the purchase price and made a share transfer contract in lieu of the receipt; (c) but the Plaintiff reversed the claim that the Plaintiff △△△○ offsets the obligation owed to the Plaintiff △△○; (d) the purchase price was set off against the obligation owed by the Plaintiff △△△○; (e) the Plaintiff’s claim that the Plaintiff △△△△△△△ was not submitted. Furthermore, the shares whose shares were not issued as the instant shares are transferred by the method of the transfer of nominative claim; and (e) it cannot be asserted against a third party other than the obligor without having given notice or consent by the certificate with a fixed date. However, there is no assertion or proof as to the transfer of the instant shares, and thus, the Plaintiff △△△△ cannot assert assert assert the effect of the Plaintiff’s claim.

4. Conclusion

If so, the plaintiff Kim ○-○'s lawsuit is unlawful and dismissed, and the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

1

2

Relevant statutes

【National Tax Collection Act

Article 24 (Attachment)

(1) The head of a tax office (including the director of a regional tax office in cases of delinquent taxpayers prescribed by Presidential Decree, taking into account the period of delinquency and the amount in arrears; hereinafter the same shall apply) shall seize property of taxpayers in

1. Where the taxpayer fails to completely pay national taxes and the additional dues by the designated period after receiving a notice of demand (including a peremptory notice);

2. Where a taxpayer is notified of payment before the payment period under Article 14 (1) and fails to pay in full by the designated period;

(2) If the head of a tax office deems that a taxpayer cannot collect national taxes after the determination of national taxes due to a cause falling under any of the subparagraphs of Article 14 (1), he/she may seize the taxpayer's property to the extent of the estimated amount of national taxes.

(3) The head of a tax office shall obtain prior approval from the director of a regional tax office to attach property under paragraph (2).

(4) Where the head of a tax office attaches property under paragraph (2), he/she shall notify the relevant taxpayer in writing.

(5) The head of a tax office shall immediately release the property from attachment under paragraph (2) in any of the following cases:

1. Where a person notified pursuant to paragraph (4) provides security for tax payment and requests a release of seizure;

2. Where the amount of national taxes to be collected by the seizure is not determined until three months have passed after the date of the seizure.

(6) The head of a tax office shall pay money, deposits or valuables to collect the attached property under paragraph (2) within the due date for payment.

In cases of rights, if a taxpayer files an application, it may be appropriated for the fixed national taxes.

Article 41 (Procedures for Attachment of Claims)

(1) In seizing claims, the head of a tax office shall notify it to the obligor of the relevant claim (hereinafter referred to as the "third obligor").

(2) Upon notification under paragraph (1), the director of the tax office shall subrogate the obligee who is the defaulted taxpayer within the limit of the delinquent amount.

(3) When the head of a tax office attaches claims under paragraph (1), he/she shall notify it to the delinquent taxpayer.

Article 42 (Effect of Seizing Claims)

Attachment of claims shall enter into force upon delivery of the notification of attachment to the garnishee.

Article 43 (Amount of Seized Claims)

The director of the tax office shall attach claims within the amount in arrears: Provided, That he/she may attach the total amount of claims, if it is deemed necessary to attach the claims exceeding the amount in arrears.

4. Securities Transaction Tax Act (Amended by Act No. 13628, Dec. 29, 2015)

Article 1 (Taxable Objects)

With respect to a transfer of share certificates or equity shares (hereinafter referred to as share certificates, etc.), the securities transaction tax shall be imposed under this Act.

Article 2 (Definitions)

(1) The term "share certificates" in this Act means any of the following:

1. Stock certificates of a corporation established under the Commercial Act or special Acts;

(3) For the purpose of this Act, the term "transfer" means that the ownership is transferred at a cost due to contractual or legal causes.

(4) Stocks prior to the issuance of stock certificates, rights derived from underwriting of stocks, preemptive rights, investment certificates issued by a corporation established under special Acts, and securities depository receipts under Article 4 (8) of the Financial Investment Services and Capital Markets Act (limited to those issued by a person who deposits equity securities under Article 4 (2) 2 of the same Act) shall be deemed stock certificates in the application of this Act.

Article 3 (Taxpayer)

A taxpayer of securities transaction tax shall be any of the following persons:

3. Where share certificates, etc. are transferred, except as provided in subparagraphs 1 and 2, the transferor (the single entry omitted) of such share certificates, etc.

Article 10 (Return, Payment and Refund)

(1) A taxpayer of securities transaction tax shall report the tax base and tax amount to the head of the competent tax office according to the following classifications, as prescribed by Presidential Decree:

2. In the case of subparagraph 3 of Article 3, the tax base and tax amount for each quarter shall be reported within two months from the last day of the quarter to which the transfer date belongs;