Changwon District Court Jinwon Branch 2012Gadan14797 ( October 05, 2013)

It is illegal to receive new dividends concerning the part of the tax amount extinguished after receiving dividends in the voluntary auction procedure.

(As with the judgment of the first instance court), since the defendant's claim concerning the portion of value-added tax is deemed to have extinguished, it is unlawful for the defendant to receive the distribution of each portion of tax extinguished during the voluntary auction procedure of this case.

Article 56 of the National Tax Collection Act

2013Na31520 Demurrer against distribution

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Korea

Changwon District Court Decision 2013Na14797 Decided October 05, 2013

oly 2014.17

208.28

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

Of the dividend table prepared by the above court on November 12, 2012 with respect to the auction of real estate amounting to the plaintiff, the dividend amount of KRW 0,000,000 against the defendant shall be corrected to KRW 0,000,000, and the dividend amount of KRW 00,000,000 against the defendant shall be corrected to KRW 0,00,000, respectively.

2. Purport of appeal

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

1. Quotation of judgment of the first instance;

The reasons why the court should explain this case is a new argument made by the defendant in the trial.

In addition to the following cases, the reasoning of the judgment of the first instance is the same as that of the judgment of the first instance, and thus, this is cited by the main text of Article 420 of the Civil Procedure

2. Additional determination

A. The defendant's assertion

The Plaintiff’s dividends received by the Defendant during the pre-sale procedure of the instant case at the lower court on July 23, 2009.

If the aggregate of the pre-paid tax amount of KRW 00,00,000 (the statutory due date, May 31, 2008, and October 25, 2008, respectively, the statutory due date, the aggregate of value-added tax of KRW 00,000,000 on October 1, 2008, and January 27, 2009, respectively, was appropriated for the pre-paid preferential tax amount of KRW 00,000,000,000 (the same as the amount of the pre-paid preferential tax in the instant public auction proceeding), the Plaintiff’s claim prior to the aforementioned amount of KRW 0,000,000,000,000,0000 on July 25, 2009, and the above amount of KRW 00,000,000,000,000,000 on the pre-paid preferential tax amount of KRW 10,000,09).

B. The judgment of this Court

A creditor with an executory exemplification, and a creditor having the right to preferential reimbursement under the Civil Act, the Commercial Act, the Commercial Act, and other Acts, who has the right to demand a distribution after a decision to commence a distribution has been registered, may receive a distribution only when he/she has made a request for a distribution by the deadline for claiming a distribution. In cases where a legitimate demand for distribution has not been made, even if he/she has the right to demand a preferential reimbursement under the substantive Acts, he/she shall not receive a distribution from the proceeds of sale, and even if he/she has the right to demand a distribution by the deadline for claiming a distribution, in cases where a part of a claim has been made by the deadline for claiming a distribution, he/she may not add or extend a claim not to demand a distribution after the deadline for requesting a distribution, and the same shall also apply to cases where a claim not to demand an additional distribution is stated in the purport of seeking a payment of interest, etc. up to the date of distribution in the written request for a request for distribution or the written request for a distribution submitted before the deadline for demanding a distribution (see Supreme Court Decision 2011Da4160, May 10, 2).

However, the Defendant’s claim for the issuance of only KRW 0,00 on October 1, 200 in the instant voluntary auction procedure is identical to the facts acknowledged earlier. As such, the Defendant may not receive dividends on the amount exceeding the above KRW 00,000 out of the aggregate of the value-added tax and the additional and increased additional taxes on the value-added tax on October 1, 2009 as of October 1, 2009.

C. Sub-committee

Therefore, the defendant's above assertion is without merit.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.