Seoul Central District Court 2006Ka75301 ( October 17, 2009)

In issuing a written purchase approval, a bank shall be obligated to formally examine documents, materials, etc., but shall not be obligated to actually examine.

In the event that the Defendant Bank suffers loss from the failure of the State to collect value-added tax by issuing a purchase approval without neglecting the confirmation of evidentiary documents, the Defendant Bank is liable for damages only if it is found to be negligent through the formal examination of documents, materials, etc., but no liability for damages exists due to the lack of substantial duty

2012Na72119 Damage, Claim

Appellant and Appellant

Korea

- Appellants

AA Bank et al.

Seoul Central District Court Decision 2006Gahap75301 Decided June 17, 2009

December 21, 2012

January 16, 2013

1. Of the judgment of the court of first instance, the part against the Defendants in excess of the amount ordered to be paid under the order is revoked, and the Plaintiff’s claim corresponding to the revocation

A. Defendant A Bank shall pay to the Plaintiff 00 won and the amount calculated by applying 5% per annum from September 22, 2006 to August 30, 2012, and 20% per annum from the next day to the date of full payment.

B. Defendant BB Bank shall pay to the Plaintiff 00 won and the amount calculated by applying 5% per annum from September 8, 2006 to August 30, 2012, and 20% per annum from the next day to the date of full payment.

2. All remaining appeals by the Defendants are dismissed.

3. 10% of the total costs of litigation after the filing of an appeal shall be borne by the Plaintiff, and 90% by the Defendants.

1. Purport of claim

The plaintiff, and the defendant AA Bank shall pay 00 won, and the defendant BB Bank shall pay 00 won and each of the above amounts at the rate of 20% per annum from the day following the delivery date of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

A. The plaintiff

Of the judgment of the first instance court, the part against the Defendants in which the lower payment order is revoked shall be revoked. The Plaintiff, while the Defendant AA Bank shall be KRW 000, and the Defendant BB Bank shall pay 000,000 per annum to the date of delivery of the copy of the complaint in this case, and the amount calculated by 20% per annum from the day after the day of complete payment.

B. Defendant

In the judgment of the court of first instance, the part against the Defendants shall be revoked, and the Plaintiff’s claim against the Defendants corresponding to the revoked part shall be dismissed.

1. Scope of trial of the political party after remand;

The court of first instance, among the plaintiff's claims against the defendants, the defendants issued a letter of approval to purchase to FFFFccer Corporation, and GGGG commerce, and caused damage to the plaintiff, and ordered compensation for damages suffered by the plaintiff, and dismissed the remaining claims. The plaintiff and the defendants appealed all. The judgment prior to the remand was accepted only by the defendants' appeal, and the part against the above defendants was revoked, and the plaintiff's claim corresponding to the revoked part was dismissed, and the plaintiff's appeal was dismissed. The plaintiff filed an appeal against the whole judgment prior to the remand. The plaintiff filed an appeal against the judgment prior to the remand. The Supreme Court made an appeal on the ground that the defendants issued the letter of approval to purchase illegally to FFccer Corporation, Co., Ltd., and GGGG trade, and the plaintiff company sought compensation for damages to the plaintiff, and the judgment prior to the remand was reversed and remanded to the party members. Therefore, the remaining part of the plaintiff's claim is limited to the part to be remanded after the reversal and remanded.

2. Basic facts

A. Status of the Defendants

The defendants (hereinafter "the defendants are individually named) are foreign exchange banks engaging in foreign exchange business after obtaining authorization from the plaintiff.

(b) A zero tax rate system and a purchase approval under the Value-Added Tax Act;

1) According to the Value-Added Tax Act, an entrepreneur is obliged to pay the value-added tax in the event of the supply of goods, and where the zero-rate tax is applied according to the national policy purpose of encouraging foreign exchange earnings, the amount of tax shall always become zero and no value-added tax shall be levied regardless of the size of the relevant tax base. The zero tax rate shall apply to the supply of exported goods in connection with the value-added tax (Article 11(1)1 of the Value-Added Tax Act), and even in the case of goods supplied under a local letter of credit or letter of credit or letter of approval for purchase determined by the Ordinance of the Ministry of Finance and Economy (Article 23(2)1 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 17186, Mar. 31, 2001).

2) Where a purchase approval intends to purchase domestically produced goods or imported goods as raw materials or goods for foreign exchange earnings, the head of a foreign exchange bank refers to a certificate issued corresponding to a local letter of credit, and the former Rules on External Trade Management (amended by the Ministry of Commerce, Industry and Energy No. 2005-3 of Jan. 14, 2005) provides for the following matters concerning the application for issuance of a purchase approval:

(Omission of Contents of Regulations)

3) Any person who intends to purchase goods, etc. for the purpose of earning foreign currency through export, etc. under the zero-rate system above may request a foreign exchange bank to issue a purchase authorization, obtain a purchase authorization from the foreign exchange, and present it to the other party of the transaction, if so, the equivalent of the value-added tax is not collected from the transaction, and the supplier is exempted from the obligation to pay the value-added tax, since the zero-rate tax under the Value-Added Tax Act is applied to the transaction under the purchase approval

C. Issuance of the defendants' purchase approval

The details of the purchase approval issued by the Defendants in relation to the instant case (hereinafter referred to as “the purchase approval of this case”) are as follows.

(Omission of Approval for Purchase)

D. Type of transaction of the applicant company of this case

The FFFFF Co., Ltd. (hereinafter referred to as the “FFFFFFFFFFFcracing”) or the GGGG commerce Co., Ltd. (hereinafter referred to as the “GGGG trade,” and the 'the instant application company' in the case of the name of FFFFFccccracing and the 'GGG trade', without exporting the purchased goods, has been issued a purchase approval under the intention of evading value-added tax or not being subject to the transaction collection from the other party to the transaction under the intention of not being subject to the transaction collection of value-added tax without exporting the goods. The purchase approval was issued under the pretext that the goods purchased from the Defendants were exported, and was traded by selling the gold bullion or gold bullion (GGG trade) to domestic wholesalers, etc. without exporting the FFFFF capital yarn or gold bullion.

(e) Imposition of value-added tax and administrative litigation;

1) The district tax office with respect to the supplier of the transaction under the instant purchase authorization (the indication of "stock company III, Co., Ltd.", and "Co., Ltd." are omitted and named) was not actually exported to the FF originals or gold bullion purchased by the instant application company upon presenting the instant purchase authorization, and the instant purchase authorization was issued a disposition imposing value-added tax on III and III on each transaction under the instant purchase authorization on the ground that there is a defect in the process of issuance, and that the instant purchase authorization is not applicable to each transaction under the Value-Added Tax Act, and that the said addition is claimed to be subject to zero-rate tax on each of the above transactions, and that the above addition is an administrative litigation seeking revocation of the tax imposition.

2) Specific imposition of value-added tax on each transaction under the instant purchase approval and the progress of administrative litigation thereon are as follows.

① On July 1, 2001, the head of Geumcheon Tax Office imposed value-added tax on III on July 1, 2001, and the above court decided that the above disposition was revoked on January 17, 2003 due to the absence of special circumstances such as the third party's knowledge of the defect in the issuance of the purchase approval, and that the above judgment became final and conclusive as the appeal was dismissed on October 6, 2004, and the second appeal was dismissed on February 18, 2005, by Supreme Court Decision 2004Du120566.

② On September 15, 200, the Seoul Administrative Court Decision 2001Gu11914, which was filed by III, to revoke the disposition of value-added tax on September 15, 200, and on August 29, 2001, the above judgment became final and conclusive as it is, on the ground that the above judgment was unlawful because of the absence of special circumstances, such as the third party's knowledge of the defect in the issuance of the purchase authorization, and the above judgment was appealed by Seoul High Court 2001Nu15452, but the appeal was dismissed on August 28, 2002, and the second appeal was filed by Supreme Court 2002Du9100, but on August 30, 2004.

[Based on Recognition] The non-contentious facts, Gap evidence 1, 3, 19, and 24, and the purport of the whole pleadings

3. Determination

A. The parties' assertion

1) The plaintiff's assertion

The Defendants, who were entrusted with the affairs of issuance and follow-up management of a purchase approval by the Minister of Commerce, Industry and Energy under the Foreign Trade Management Regulations, committed a tort in issuing a purchase approval without confirmation or attachment of an export contract, etc. proving that they are used as raw materials or goods for foreign exchange earnings, although they have a duty of care to issue a lawful purchase approval pursuant to the Foreign Trade Management Regulations. On the other hand, the Defendant applied for the issuance of a purchase approval even without exporting the goods purchased, and presented the purchase approval form to the Defendants, and the Plaintiff purchased the goods from the other parties to the instant transaction, and the Plaintiff did not know that there was a defect in the process of issuing the purchase approval form on the grounds that they were not subject to zero tax, but did not know that there was a defect in the process of issuing the purchase approval form from the court. Accordingly, the Defendants were liable to cancel the above imposition disposition on the grounds that they were subject to zero tax rate through a transaction under the purchase approval form, and thus, did not impose value-added tax on the Plaintiff.

2) The defendants' assertion

The authority to issue a purchase approval is the authority of the Minister of Commerce, Industry and Energy, which can be delegated to the head of a foreign exchange bank by the amendment of the Enforcement Decree of the Foreign Trade Act on March 31, 2001, and there was no legal basis to delegate the Defendants to the head of the foreign exchange bank. Thus, even if the Defendants issued a purchase approval, the Plaintiff, the subject of management supervision, cannot be held liable for the Defendants’ breach of duty of care, etc., and there is no legal basis to recognize the Defendants’ duty of care. If the disposition imposing value-added tax was revoked due to the illegality of the disposition imposing value-added tax, the tax claim cannot be established from the beginning because there was no legitimate ground, and accordingly the Plaintiff does not belong to the Plaintiff. Accordingly, the infringement of the above tax claim cannot be recognized as damages. The judgment revoking the disposition imposing value-added tax in the relevant administrative litigation is included between the Defendants’ issuing a purchase approval and the Plaintiff’s failure to impose value-added tax from the other parties, and it is also difficult to view the aforementioned revocation judgment as a causal relationship.

B. Determination on issues

1) Whether the Defendants’ negligence was recognized

Article 116 (14) of the Enforcement Decree of the Foreign Trade Act, which is a legal basis for the entrustment of the authority of the Minister of Commerce, Industry and Energy to issue a purchase approval, was newly established on March 31, 2001, and there was no legal basis for entrustment at the time when the Defendants issued a purchase approval, but the Defendants actually exercised their authority to issue a purchase approval as a foreign exchange bank based on the foreign trade management regulations, and the purchase approval is issued for the purpose of the national policy that promotes foreign exchange earnings to obtain zero tax rate in case a business operator intends to purchase goods for foreign exchange use, etc., so the certificate is issued for the purpose of applying zero tax rate. Therefore, the verification of basic documents such as an export contract that can prove the use of goods for foreign exchange earnings in the course of issuing the purchase approval is an essential procedure, and the head of the foreign exchange bank under Article 4-2-7 (1) of the Foreign Trade Management Regulations provides that the head of the foreign exchange bank can issue the purchase approval by an explicit document such as an export contract, etc.

2) Whether the Plaintiff suffered loss

The tax liability is automatically established by the completion of the taxation requirements or act stipulated by tax law, and there is no need for the tax authorities or taxpayers to do special acts, and the corresponding country's abstract tax claims are established if abstract tax liability is established by meeting the taxation requirements. Thus, the taxation requirements are satisfied only by the act of supplying the above goods to the applicant company of this case who purchased FF originals or gold bullion for domestic sales, and the plaintiff's claim on the value-added tax has been established. Thus, it is reasonable to view that the plaintiff's revocation decision on the disposition on the disposition on the disposition on the imposition of value-added tax against the other party to the transaction of this case becomes final and conclusive and the plaintiff cannot be allowed to impose the value-added tax

3) Whether to recognize proximate causal relation

The type of transaction of the application company of this case does not correspond to the grounds for issuing a purchase approval through a transaction not eligible for zero tax rate, but does not correspond to the defendants' negligence that the purchase approval is issued to the applicant company of this case, and that the goods supplied for zero tax rate should be actually exported, so the purchase approval is subject to zero tax in principle regardless of whether they are actually exported since the purchase approval was issued, and even if there are defects in issuing a purchase approval, the supplier of the goods sells the goods by applying zero tax rate with the knowledge of the defects in issuing a false purchase confirmation certificate in collusion with the buyer, or the buyer sells them within the country without the purpose of export with the knowledge of the defects in issuing a purchase approval, or even if there are special circumstances that undermine the order of collection of value-added tax, such as where the buyer knowingly does not use a false purchase confirmation certificate with the intention of evading the tax, it can be exempted from zero tax rate and imposed value-added tax.

C. Determination as to the defendants' liability for damages

1) Determination as to the cause of claim

A) The aforementioned evidence and evidence Nos. 2 and evidence revealed that the former KK Bank Inspection Division prepared an examination report to the effect that, upon the result of the self-inspection of the KimL, the head of the Gu KK Bank Inspection Division, who was directly in charge of issuing the purchase approval letter for the FFFFcccer Operation, verified the fact of unfairly issuing the export contract, etc., which can prove the use of the goods, etc. for foreign exchange earnings upon issuing the purchase approval certificate, and that the above KimL made a statement to the effect that the above KimL issued the purchase approval unfairly due to personal-friendly relationship with the FFccer Operation, the actual management owner of the FFcer Operation, and that the FFcerer Operation presented the purchase approval letter issued as above to III, and purchased 00 won in total from III, FFcerer, and that the plaintiff could not impose the above value-added tax after the decision to cancel the purchase approval notice became final and conclusive.

B) In addition, as to the evidence mentioned above, Gap's evidence and evidence Nos. 45-24, 46, 47, 75, and 128, and as to whether the head of the final tax office issued appropriate notice of purchase to the head of the closing route branch of the AA bank on January 22, 2000, the head of the final branch office of the AAA bank issued a letter of subscription to the head of the RedM's purchase approval, which is the representative director of the GGG commerce, and confirmed that the employee in charge issued a letter of subscription with omitted export supporting documents for foreign exchange earnings, and that the GGG commerce submitted a letter of approval for purchase to III, which is the counter-trade, and that the plaintiff purchased gold bullion total amount of KRW 00,000,00,000,000,000,000,000,000,000,000,000 won, were confirmed as seen earlier.

C) According to the above facts of recognition, the Defendants are liable to compensate the Plaintiff for damages equivalent to value-added tax equivalent to 10% of the transaction amount in accordance with a purchase approval issued in tort, and damages for delay.

2) Determination as to the defendants' defense

A) Determination on the statute of limitations defense

(1) Even if the purchase authorization issuance constitutes a tort, Defendant AA Bank raises a defense that the time limit has expired three years after the date on which the Plaintiff became aware of the damage and the perpetrator. The "date on which the Plaintiff becomes aware of the damage and the perpetrator" under Article 766 (1) of the Civil Act, which is the starting point of the short-term extinctive prescription of the claim for damages due to the tort, means the time when the facts of the tort were actually and specifically recognized, such as the occurrence of the damage, the existence of the illegal harmful act, and proximate causal relation between the occurrence of the harm and the damage, and the time when the victim deemed to have actually and specifically recognized the facts of the requirements of the tort, should be reasonably recognized in consideration of various objective circumstances in individual cases and circumstances enabling the claim for damages (see Supreme Court Decision 2006Da3040, Apr. 24, 2008). In this case, the Plaintiff's final judgment on the imposition of value-added tax became final and conclusive, and the above decision on the imposition of value-added tax was not revoked.

(2) The following, even if the Defendants’ act of issuing a purchase authorization constitutes a tort, the time limit has expired five years since the date of the extinctive prescription specified in the former Budget and Accounts Act from the date of issuing the purchase authorization. The meaning of “the date of the tort,” which is time-based between the harmful act and the actual damages arising therefrom, and which is the starting date of the extinctive prescription, can only be viewed as the time when it can be viewed as realizing the damages that occurred again, and when it can not be seen as the time of the cancellation of the extinctive prescription of the Plaintiff’s claim for damages that became final and conclusive after the lapse of 205Da5312 decided November 16, 207 (see, e.g., Supreme Court Decision 2005Da5312 decided Oct. 16, 2007). Accordingly, it is reasonable to view that Defendant BB Bank or AB Bank’s final and conclusive extinctive prescription period for each of the instant damages claim that the Plaintiff could not be issued to GFG or GG trading.

B) Determination on the comparative negligence defense

In light of the fact that the issue of a purchase authorization is originally conducted by the plaintiff, and that the defendant AA bank must be responsible for management and supervision even if it entrusts it to the defendant AA bank, it is necessary to limit liability for damages in accordance with the legal principles on comparative negligence or limitation of liability. In this case, the defendant AA bank has gross negligence that proves that it is used as goods for foreign exchange earnings, etc. which are the most fundamental and essential procedure in issuing a purchase authorization, and the plaintiff explicitly stipulates that it shall issue a purchase authorization in accordance with the provisions on foreign trade management, and even if the plaintiff is responsible for issuing a purchase authorization, it is not reasonable to limit the plaintiff's liability for damages in accordance with the principle of good faith and fairness because it is not reasonable to limit the defendant AA bank's liability for damages.

3) Sub-decisions

Therefore, Defendant AB bank, and Defendant AB bank, from September 22, 2006 to August 30, 2012, the following day after the delivery date of a copy of the complaint of this case sought by the Plaintiff as a tort, shall be deemed to have a considerable ground for the Defendants to pay damages equivalent to 100 won of value added tax (00 won x 10% x 10% , and 90% x less than won) equivalent to 10% of the transaction amount under the purchase approval issued by the FFFFF would be equivalent to 10% of value added tax corresponding to 10% of the transaction amount under the purchase approval issued by the purchase approval issued by the Plaintiff to the GG commerce. Thus, it is reasonable to view that Defendant AB bank had an obligation to pay 98% of the total damages from September 30, 2012 to the date of the final judgment of the Supreme Court of Korea (see, e.g., Supreme Court Decision 98Da96989, Sept. 9, 2096).

4. Conclusion

Therefore, the plaintiff's claim against the defendants is justified within the above scope of recognition and the remaining claims are dismissed without merit. Among the judgment of the first instance court which has different conclusions, the part against the defendants ordering the defendants to pay more than the above recognized amount is unfair, and it is so revoked, and the plaintiff's claim corresponding to the revoked part is dismissed, and the defendant's remaining appeal is dismissed without merit. It is so decided as per Disposition.