Whether the defendant is liable for damages caused by the tort

Since the part related to value-added tax in the sales contract of this case cannot be seen as "a contract for a third party" or "a contract for a third party", the plaintiff's assertion on the premise that the delinquent taxpayer has a damage claim against the defendant due to default or tort is without merit.

2016 Doz.84296 Damages, etc.

Korea

○○ Construction Corporation

August 11, 2017

September 29, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The defendant shall pay to the plaintiff 1,439,450,580 won with 15% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. Status of the parties

The defendant is a construction company that has been awarded a contract for construction of a building on the ground of general commercial area in the ○○ Housing Site from a corporation AA (hereinafter referred to as "AA"). The plaintiff's assistant is a trustee of the sale and management trust contract for the real estate of this case, and the plaintiff holds a tax claim against AA with respect to the land of this case.

B. Sales management trust for the instant real estate and conclusion of a contract for construction of a new building on the ground thereof

1) AA purchased the instant real estate from BB to a company for the purpose of building, housing, and new construction and sales business of commercial buildings, and obtained a loan fromCC to implement a sales business, and as a security, entered into a sales management trust agreement with the Plaintiff’s Intervenor and the Plaintiff’s Intervenor on June 16, 2010 with respect to the instant real estate as Defendant: (a) on October 29, 2010, a sales management and trust agreement with the first beneficiary was entered into between the Plaintiff’s Intervenor and the second beneficiary; and (b) on October 29, 2010, on the content of the sales management trust agreement, a contract was concluded to change the upper beneficiary’s upper beneficiary’s upper beneficiary’s upper beneficiary’s upper beneficiary’s upper beneficiary’s upper beneficiary’s upper beneficiary’s upper beneficiary’s upper beneficiary’s upper beneficiary amount to KRW 11,570,020,000

2) On October 26, 2010, AA entered into a contract with the Defendant for the construction of a new building on the instant real estate (including additional tax) with the amount of KRW 10,518,200,000 (hereinafter referred to as “instant contract”).

C. Execution of public auction procedures and conclusion of sales contract for the instant real estate

1) AA was unable to pay interest on loans and the construction cost to the Defendant for reasons such as poor sale of the instant real estate-based new building, and the National Federation of Fisheries Cooperatives and the Defendant requested the Plaintiff’s Intervenor to sell by public auction. Accordingly, the Plaintiff’s Intervenor announced the public sale of the instant real estate on December 4, 2012.

2) The Defendant participated in the above public auction procedure, and entered into a sales contract with the Plaintiff’s Intervenor on December 26, 2012 with respect to the instant real estate (hereinafter “instant sales contract”).

(hereinafter referred to as "A" is an intervenor assisting the plaintiff, and "B" is the defendant)

Article 1 (Sale Price) (1) A shall sell the above-mentioned real estate to B (including value-added tax) 12,00,000,000 won.

Article 2 (Contract Deposit) (1,200,000,000 won shall be paid to A as contract deposit.

Article 3 (Methods of Price Payment, etc.) The person holding the right to distribute the said real estate for public auction shall set off against the amount of credit concerned and the sales amount.

Classification

Value of Supply

Jinay

Contract deposit

1,200,000,000

Balance

10,080,000,000

Sales proceeds

1,280,000,000

Value-added Tax

720,000,000

(d) Imposition of value-added tax pursuant to the instant sales contract by the head of ○○ Tax Office and closure of AA;

1) Around May 2014, the head of ○○ Tax Office notified AA of KRW 1,035,576,00 of the value-added tax for the second period of 2010 (= value-added tax of KRW 720,00,000 + additional tax of KRW 315,576,00), and the corporate tax of KRW 2,226,347,660 for the business year of 2012, around June 2015, respectively.

2) Meanwhile, A discontinued on March 20, 2014, and AA’s value pursuant to the instant sales contract was added thereto.

The amount of delinquent taxes in arrears is KRW 1,439,450,580 in total as of December 2016 (=value added tax of KRW 720,00,000 + penalty tax of KRW 315,576,00 + surcharge of KRW 403,874,580).

[Reasons for Recognition] Facts without dispute, entry of Gap evidence 1 through 9 (including the number of each branch; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination as to the cause of action

A. The parties' assertion

1) The plaintiff's assertion

A) The Defendant’s liability for damages caused by nonperformance of obligations under the instant sales contract

Of the instant sales contract, the part for which the Defendant paid value-added tax is a contract for a third party for a third party or for a third party who is not a beneficiary of AA, and the Defendant did not pay value-added tax despite its contractual obligation under the instant sales contract. Furthermore, the Defendant’s claim for the payment of value-added tax occurred between the Defendant and AA, while the Defendant’s obligation for payment of value-added tax occurred between the Defendant and the Plaintiff’s Intervenor, the Defendant’s obligation for payment of value-added tax cannot be deemed extinguished solely with the Defendant’s intent of offsetting. As such, AA did not have obtained profit from the exemption of the Defendant’s obligation for the payment of the price-added tax pursuant to the instant sales contract, and only incurred losses due to the Defendant’s breach of the obligation for payment of value-added tax. Accordingly, the Defendant bears the obligation to compensate for damages, namely, value-added tax amounting to KRW 720,00,000, KRW 403,874,580, KRW 1439,580.

Meanwhile, the Plaintiff holds at least 4 billion won tax claims against A, and AA is insolvent by discontinuance of its business, and does not exercise the claim for damages against the Defendant. The Plaintiff claims for the above damages against A in subrogation of A in subrogation of the Defendant with the claim for the tax against A as the preserved claim.

B) Defendant’s tort liability

The Defendant is obligated to faithfully fulfill the obligation to pay value-added tax under the instant sales contract and prevent damage to AA. Accordingly, the Defendant’s act of violating this obligation constitutes a tort as a breach of contract or good faith and constitutes a tort. The amount of damage is equivalent to the sum of the value-added tax, the additional tax, and the additional tax. Accordingly, the Defendant is obligated to compensate the Plaintiff who subrogated to AA for the tort.

2) The defendant's assertion

A) Non-existence of default or tort

The person liable for the return and payment of value-added tax under the Value-Added Tax Act cannot be seen as transferring the obligation for the return and payment of value-added tax pursuant to the instant sales contract to the Defendant, so long as the obligation for the return and payment of value-added tax pursuant to the instant sales contract cannot be deemed as a contract for a third party, the obligation for the return and payment of value-added tax pursuant to the instant sales contract still belongs to AA. Furthermore, even if the instant sales contract is deemed as a contract for a third party, unless there is no declaration of intent of profit in AA with the status of a third party, it cannot be deemed that the Defendant is liable for the return and payment of value-added tax. Accordingly, even if the Defendant did not report and pay value-added tax pursuant to the instant sales contract, such act does not constitute a violation of the instant sales contract

B) Non-existence of damages

According to the instant sales contract, the Plaintiff’s Intervenor’s claim for the purchase price, including value added tax, and the Defendant’s claim for the construction price against AA were offset and terminated. Accordingly, AA obtained profit from the extinction of the obligation for the construction price equivalent to 12 billion won including value added tax. Therefore, even if the Defendant did not pay value-added tax on the instant real estate auction, this cannot be deemed as having caused any damage to AA.

C) Offsets

Even if the defendant bears the liability for damages against A, the defendant currently holds the claim for construction cost of KRW 1,730,870,869 against A, and the above claim for construction cost of KRW 1,730,870,869 against the defendant shall be offset against the equivalent amount.

B. Determination

First of all, we examine whether AA holds any right against the defendant under the contract of this case because the contract of this case constitutes "a contract for a third party or "a contract for a third party".

1) The term "a contract for a third party" means a contract with the intention to have a third party acquire rights directly to one of the parties to the contract under the name of the party to the contract, contrary to the intention to have the contract take effect only between the parties. Whether a contract constitutes a contract for a third party is a matter of interpretation of the intention to have a third party acquire rights directly by the party to the contract. This is a matter of interpretation of the intention to have a third party acquire rights directly from the party to the contract. This can be determined by interpreting a reasonable intent of the party to the contract by comprehensively taking into account all the circumstances, such as the purpose of the conclusion of the contract, the nature of the act of the party to the contract, the interests gained, transaction practices, and the social functions of the contract system for the third party (see, e.g., Supreme Court Decision 97Da28698, Oct. 24, 197).

2) In order to establish a contract for third party, a clause must be generally required to have a third party, who is not a party to the contract, acquire a right directly (see, e.g., Supreme Court Decision 2002Da37405, Sept. 3, 2004). As seen earlier, “The return and payment of value-added tax shall be dealt with by the buyer (the defendant) who is responsible for the special terms and conditions under the contract for sale and purchase of this case,” and only include 720 million won as value-added tax, and there is no express provision that allows A to acquire a right directly by the defendant under the contract for sale and purchase of this case, and there is no other circumstance to deem that the Plaintiff’s Intervenor and the Defendant, who are the party to the contract for sale and purchase of this case, intended to acquire a right directly to AA with respect to the part of value-added tax. Therefore, it is difficult to regard the part related to value-added tax as a contract for

Furthermore, even if the Defendant is liable for the payment of value-added tax according to the instant sales contract, AA is practically enjoying economic benefits that are exempt from the obligation to pay value-added tax, and it cannot be deemed that AA has the authority to receive benefits equivalent to the value-added tax directly from the Defendant. Thus, the instant sales contract does not have the right to claim the payment of value-added tax against the Defendant, who is the direct abortion of the third party, but it is difficult to view that the instant sales contract constitutes a contract with only the right to receive benefits following the Defendant’s performance of the obligation.

3) As such, inasmuch as the part related to value-added tax in the instant sales contract does not constitute “a contract for a third party” or “a contract for a third party,” and it cannot be deemed that A has any right to the Defendant under the instant sales contract, even if the Defendant did not pay value-added tax pursuant to the instant sales contract, such act cannot be deemed as constituting a default on AA, and furthermore, it cannot be deemed as a tort against A that violates the principle of trust and good faith against A, which is a mere fact that the Defendant, who is not a party to the instant sales contract, actually takes economic benefits by paying value-added tax, does not actually take economic benefits by paying value-added tax. Therefore, the Plaintiff’s assertion that was premised on AA’s possession of damage liability for nonperformance

3. Conclusion

Therefore, the plaintiff's claim is justified and it is so decided as per Disposition.

(c)