Daegu District Court-2016-Ban-128435 (Law No. 23, 2017)

In case where a request for distribution has not been made not later than the fixed date for the demand for distribution, the fixed amount of distribution shall be limited to the delinquent amount at the

Even if there exists another tax claim having the effect of registration of seizure in an auction procedure, as long as a request for delivery has not been made prior to the fixed date for demand for distribution, the said other tax claims shall not be distributed in preference to the junior

Article 30 of the National Tax Collection Act: Revocation and Restoration of Fraudulent Act

2017Na308963 Undue gains

AAAAA

Korea

Daegu District Court Decision 2016Da128435 Decided June 23, 2017

November 29, 2017

January 17, 2018

1. The part of the judgment of the court of first instance against the plaintiff corresponding to the money ordered to pay below shall be revoked. The defendant shall pay to the plaintiff 8,793,922 won with 5% interest per annum from November 16, 2016 to January 17, 2018, and 15% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining appeal is dismissed.

3. 85% of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 56,967,121 won with the interest of 55% per annum from July 25, 2013 to the service date of a duplicate of the complaint of this case, and 15% per annum from the next day to the day of complete payment.

1. Basic facts

A. BBBB securitization specialized in the instant lawsuit filed a lawsuit against BD et al. seeking the payment of the acquisition amount by the 00 district court 2003Kadan94372, and the Plaintiff (CCC Co., Ltd. prior to the amendment) participated in the said lawsuit as the succeeding intervenor. Since the judgment was rendered on March 11, 2004 that “BBB securitization will pay the Plaintiff’s succeeding intervenor KRW 144,857,372” in the said lawsuit, it became final and conclusive as it was.

B. The Plaintiff filed an application for provisional seizure of real estate on September 14, 2004 with regard to each real estate in the Fran-gun of Gyeongbuk-gun, Songbuk-gun, 200 district court 204Kadan38463, the Fran-gun, Gyeongbuk-gun, Gyeongbuk-gun, Gyeongbuk-gun, and HH-gun, HH-gun, HH-4 and 84-7, and completed the provisional seizure registration on September 15, 2004.

C. On March 18, 1996, on the ground of the attachment as of March 15, 1996, with respect to each real estate of the above GG Ri 636-1, 636-2, the LLLL General under the Defendant’s jurisdiction completed the attachment registration (hereinafter “instant attachment registration”) on March 18, 1996, and completed the attachment registration on September 3, 1996 for each real estate of the above II Ri 84-4, and 84-7.

D. Meanwhile, the JJ of 00 completed the attachment registration on February 21, 2007, on the ground of the attachment on February 15, 2007, on each real estate of the above GG Ri 636-1 and 636-2.

E. As to the real estate set forth in the above II Ri 84-4, and 84-7, the auction procedure for the real estate was initiated by 00 district court 00 00 Y 201 Ma3126, which was based on the application of the mortgagee’s voluntary auction by the court of first instance, and the LLLL tax officer submitted a written claim for delivery of KRW 440,713,450, total national tax collected in arrears at the court of first instance on November 15, 2012, which was the final date for the demand for distribution in the above auction case ( January 15, 2013).

F. During the said voluntary auction procedure, the distribution schedule was prepared with the content that distributes the remainder of KRW 42,112,657 to KN, who is a mortgagee, was paid KRW 83,601,030 to KL, with the first priority order of KRW 125,713,687, which is the actual amount to be distributed on May 29, 2013, and KRW 83,601,030 (in light of the distribution ratio of KRW 100, the amount claimed for delivery after the request for delivery made on November 15, 2012, appears to have been corrected to have been KRW 83,601,030). In the second priority order, the said distribution schedule was finalized with the content that distributes the remainder of KRW 42,112,657, and the said distribution schedule was determined and paid to KN, who was a mortgagee.

G. On December 28, 2012, upon the Plaintiff’s application for a compulsory auction, the said GG Ri 636-1, and 636-2 rendered a decision to commence the auction at 00 district court 00, 200 another 3713 regarding each real estate (hereinafter “instant auction procedure”).

H. At the instant auction procedure, the final date for the demand for distribution was set on March 11, 2013. On May 2, 2013, 2013, the date for the said demand for distribution was set at KRW 440,713,450, including KRW 83,601,030, which was distributed to the Daegu District Court 00, after the said deadline for the demand for distribution was expired, the Daegu District Court submitted a request for delivery of KRW 440,713,450, including KRW 83,60,030, May 6, 2013. The same request for delivery was submitted on July 4, 2013, the remainder of KRW 357,112,420, excluding KRW 83,601,030.

I. Meanwhile, the Daegu JJ-gu filed a written request for delivery of KRW 00 district court 00 in the instant auction procedure; KRW 144,340 on February 27, 2013, prior to the date of the said demand for distribution; and KRW 48,173,199 on March 11, 2013, respectively.

(j) On July 24, 2013, at the instant auction procedure, a distribution schedule was formulated that distributes the total amount of KRW 56,967,121 to be actually distributed to the LLL tax secretary (hereinafter “instant distribution schedule”).

(k) The instant distribution schedule became final and conclusive as it is, because the Plaintiff did not raise an objection to the instant distribution schedule without stating any objection to the said distribution, and the Defendant was paid KRW 56,967,121 of the said dividend amount.

Facts that there is no dispute over recognition, Gap evidence 1, 2, 5, Gap evidence 3-1 through 5, Gap evidence 4-1 through 7, Gap evidence 6-1, 6-2, and the purport of the whole pleadings.

2. Summary of the plaintiff's assertion

In the instant auction procedure, the LLP did not submit a written request for the delivery by March 11, 2013, which is the final date for the demand for distribution, and the first day of the national tax payment stated in the written request for the delivery thereafter, on March 31, 1996. The said national tax was not yet established as of March 18, 1996 when the LLLPP had completed the instant attachment registration. Therefore, there was no right to receive a dividend in the instant auction procedure. Accordingly, the instant distribution schedule was unlawful, and thereby, the amount of dividend paid to the Plaintiff by the LLLPP secretary received KRW 56,967,121 constitutes unjust enrichment, and the Defendant is obligated to return the said dividends to the Plaintiff.

3. Determination

A. Relevant legal principles

1) A creditor who has an executory exemplification, a creditor who has effected a provisional seizure subsequent to the registration of a ruling on commencement of auction, or a creditor who has the right to preferential reimbursement under the Civil Act, the Commercial Act or other Acts, may receive dividends only once he/she has made a demand for distribution up to the completion period for demand for distribution. In cases where a legitimate demand for distribution has not been made, even though he/she is a creditor who has the right to demand preferential reimbursement under the substantive Acts, he/she cannot receive dividends from the proceeds of sale, and even if he/she has made a demand for partial distribution until the completion period for demand for distribution, he/she may not add or extend any claim that has not been demand for distribution after the completion period for demand for distribution. This legal doctrine also applies to cases where a claim for additional demand for distribution is made pursuant to a tax claim, such as interest, etc. This legal doctrine also applies to cases where the head of a tax office does not request the delivery of the amount in arrears to the national tax for which the statutory deadline has become due under Article 35(1) of the Framework Act on National Taxes before the ownership of the relevant attached property is transferred. The purport of the above provision is only to acknowledge the new claim for seizure after the delivery of dividends.

2) Since the execution of distribution according to the confirmed distribution schedule does not have to confirm the right under substantive law, in case where a creditor who is liable to receive distribution receives the distribution without receiving the distribution, the creditor who did not receive the distribution has the right to claim the return of unjust enrichment against the person who received the distribution, even though he did not receive the distribution, regardless of whether he raised an objection to the distribution, and the creditor who did not receive the distribution is not a general creditor (Supreme Court Decision 99Da26948 delivered on March 13, 2001).

3) If a non-right-holder received dividends in the distribution procedure, this would be deemed to have made unjust enrichment without any legal ground, but the person who suffered damages therefrom would have been entitled to receive dividends if the dividends were not erroneous, and this would not be deemed to have reverted to the debtor even if there was a person entitled to receive the dividends in the following order (see, e.g., Supreme Court Decisions 90Meu28412, Nov. 27, 1990; 99Da53230, Oct. 10, 2000).

B. Return of unjust enrichment

In light of the above legal principles, if Gap's evidence Nos. 3-4, 5, and Gap evidence Nos. 4-1 through 7, comprehensively taking account of the overall purport of the statements and arguments, the following facts: (i) the LLL-free book was requested to be issued only after May 2, 2013, which was after the lapse of the period for demand for distribution, in the auction procedure of this case (the evidence submitted by the defendant alone is insufficient to acknowledge the fact that the defendant requested the delivery prior to the completion date for demand for distribution in the auction procedure of this case; and (ii) the delinquent amount of SongD for which the statutory due date has become due until the completion of the seizure registration of this case is completed is 83,601,030 won (=the global income tax amount of 48,516,950 won + additional 35,084,080 won). However, the LL-free District Court may not obtain dividends from other creditors of this case, regardless of the completion date for the auction procedure of this case's distribution.

C. Scope of return of unjust enrichment

1) However, the defendant's 56,967,121 won was distributed in the auction procedure of this case to the person who would have been able to receive dividends if the dividends were not erroneous, that is, the Daegu JJ-gu that could have received dividends in the following order (limited to the plaintiff, a general creditor, who could receive dividends only if there is a remaining amount after receiving preferential dividends), and the Daegu JJ-gu submitted a claim for delivery of 48,173,199 won of local tax on March 11, 2013, which is the final date for demand for distribution at the auction procedure of this case, in principle, at the above facts, the above 56,967,121 won was to be distributed in the auction procedure of this case, and therefore, the above 48,173,199 won was to be distributed to the Daegu J-gu, Daegu J-gu, 201, which shall not be deemed to have been able to receive dividends in the above 3-41,2010 won of local tax charges.

2) Therefore, considering that the Defendant’s remaining 8,793,922 won (=56,967,121 won - 48,173,199 won) and the Defendant’s remaining 8,793,922 won to the Plaintiff from November 16, 2016, the delivery date of a copy of the complaint of this case deemed to be the date when the Defendant became a malicious beneficiary (the date following the preparation date of the distribution schedule of this case, the Plaintiff sought legal interest from July 25, 2013, which is the day following the preparation date of the distribution schedule of this case, and there is no evidence to acknowledge that the Defendant is a malicious beneficiary, and the Defendant as well as the Plaintiff cannot be determined as a bona fide beneficiary as to the above unjust enrichment until the completion of the lawsuit, it is reasonable to view that the Defendant has a duty to pay the legal interest on the above unjust enrichment from the following day to the date when the complaint of this case was served to the Defendant and the Defendant continues to pay the above 15% interest in the lawsuit (see, 2015% of this case).

4. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remainder of the claim is dismissed as it is without merit. Since the part of the plaintiff's complaint corresponding to the money recognized as above in the judgment of the court of first instance is unfair with different conclusions, it is revoked partially by the plaintiff's appeal and ordered to pay the above money to the defendant, and the remaining appeal by the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.