Reversion of the burden of false contract of conspiracy

The burden of proof on whether or not there exists a juristic act which establishes a claim has the burden of proof on the part of the claimant who asserts the existence thereof, and in the event that the claim is invalid as a false declaration in conspiracy, the claimant has the burden

Article 35 of the Framework Act on National Taxes

2016 claims for the confirmation, etc. of claims for payment of deposit money, 10045

No. 20

Republic of Korea Overseas

September 23, 2015

October 14, 2015

1. On November 3, 2014, it is confirmed that the Changwon District Court deposited 280,715,930 won with Changwon District Court Changwon Branch Branch Branch 2014No. 436 on November 3, 201 that the Plaintiff has the right to claim for payment of deposit money.

2. The costs of lawsuit are assessed against the Defendants.

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. Defendant 00 Construction Co., Ltd. (formerly: zero won Construction Co., Ltd., zero Asia Construction Co., Ltd.);

hereinafter referred to as "Defendant 00 Construction" and Haan-gun enter into a contract for the instant construction works

00 Construction is between the Haban-gun and the Haban-gun, and on January 8, 2013, the opening of access roads to the general industrial complex.

The construction contract of this case (hereinafter referred to as the "construction contract of this case") was concluded with respect to the construction project of this case (hereinafter referred to as "the construction contract of this case") with the total cost of KRW 0,000,000,000. On August 27, 2013, a contract was concluded to change the total cost of the construction contract of this case to KRW 0,000,000,000,000. On November 29, 2013, a contract was concluded to change the total cost of the construction contract of this case to KRW 0,00,000,000 (hereinafter referred to as "the first alteration contract of this case"). On September 2, 2014, the contract was amended to KRW 0,000,000,000 (hereinafter referred to as "the contract of this case"). On November 28, 2014, the contract of this case was amended to KRW 20,000,00 (hereinafter referred to as "the contract of this case").

B. On January 2013, the Plaintiff entered into a subcontract between the Plaintiff and Defendant 00 Construction with respect to the instant construction work, and the Plaintiff entered into a subcontract with Defendant 00 with the same amount as the total construction price under the instant construction contract, and paid to Defendant 00 an amount equivalent to 20% of the total construction price under the so-called “paid installment” as the so-called “paid installment payment.”

2) On January 6, 2014, the Plaintiff was issued a claim attachment and assignment order (hereinafter “instant first assignment order”) with respect to the claim for construction cost equivalent to KRW 0,000,000,000 under the instant construction contract against Defendant 00, as Changwon District Court Branch Branch Branch of Changwon District, Seoul District Court Branch of 2014TB6, and the instant first assignment order was served on Haan-gun on January 7, 2014, and became final and conclusive on March 7, 2014.

3) On August 5, 2014, when the Plaintiff was paid the construction cost under the instant construction contract with Defendant 0 Construction Co., Ltd. based on the instant assignment order, the Plaintiff drafted an agreement on August 5, 2014, stating that “Defendant 00 Construction and the Plaintiff’s construction cost for the instant construction work shall be 80% for the instant construction work, and that “the Plaintiff’s construction cost shall be 10% for the modified portion shall be 10% without Defendant 00 construction cost” (hereinafter referred to as the “instant agreement”) between Defendant 0 Co., Ltd. and Defendant 20 on August 8, 2014, the instant assignment order was issued by Defendant 2 Co., Ltd. on the basis of the No. 489 on August 13, 2014, the instant assignment order was issued by Defendant 200 Co., Ltd. to the Plaintiff on August 13, 2014 (hereinafter referred to as “No. 94”).

C. The Republic of Korea shall take measures, such as the seizure and collection order, against the claim for construction cost arising from the instant change contract against Defendant 1 and the second change contract against Defendant 00 Construction Co., Ltd.

1) On August 28, 2014, the Defendant Godam-si was issued a seizure and collection order (hereinafter “the instant collection order”) against the instant claim for future construction cost under the instant contract for the first and second alteration against the Changwon District Court, Changwon District Court, Changwon District Court, 2014TTY 937, as to the Hawon-gun, Defendant 00. The instant collection order was served to the Hawon-gun on August 29, 2014.

2) On October 1, 2014, Defendant Republic of Korea notified Defendant 00 of the attachment of the claim for future construction cost under the instant amendment contract with Defendant 00’s fleet, and the said notification was served on Haban-gun on October 6, 2014.

3) On November 3, 2014, Haan-gun deposited KRW 280,715,930 (hereinafter “the instant deposit”) as the construction cost under the instant first modified contract to be paid by Haan-gun to Defendant 00 under the Changwon District Court Branch Branch of Changwon District Court Decision No. 2014No. 436, Nov. 3, 2014.

[Ground] Regarding Defendant 00 Construction and Goscisciscis: Confession deemed as confession (Article 208(3)2 of the Civil Procedure Act); Facts without dispute against the Republic of Korea; Gap evidence Nos. 1 through 10; Eul evidence Nos. 1 and 1 (which include each number; hereinafter the same shall apply); the witness testimony of Lee Jong-sung; the purport of the whole pleadings

2. Determination as to the cause of action

A. The plaintiff's assertion

The assignment order of the second assignment order was served on August 21, 2014 to Haan-gun. It was true that the first alteration contract of this case between Defendant 00 Construction and Haan-gun was concluded on September 2, 2014, and the second alteration contract of this case was concluded on November 28, 2014. However, since the second assignment order of this case was served on Haan-gun at the time when the authentication of this case was prepared or the second assignment order of this case was served on Haan-gun, the entire claim of Defendant 00 under the first and second alteration contract of this case, which is the entire claim of the second assignment order of this case, was already determined as the basis of its occurrence, it was possible to specify the claim, it was anticipated that the near future claim would have occurred, and since the second assignment order of this case was actually created in the near future.

B. Defendant Republic of Korea’s assertion

Since the second assignment order of this case was concluded with the second assignment contract of this case after it was delivered to Haan-gun, the second assignment order of this case is null and void.

C. Determination

1) Legal principles

For effectiveness of an attachment and assignment order on a claim, the seizure and assignment order on a claim is not necessarily required to be served on a third debtor, but is not necessarily required to be in reality, and in a case where the future claim is determined as the basis of the occurrence of the claim and its face value is not possible, and where it is expected that the future claim will be created in the near future, it may be subject to an attachment and assignment order (see, e.g., Supreme Court Decision 2002Da7572, Nov. 8, 2002).

2) Determination

A) In light of the above legal principles, the Plaintiff prepared the instant agreement and the instant notarial deed with Defendant 00 before the instant second assignment order was served to the Haan-gun, namely, the following circumstances acknowledged by comprehensively taking into account the health stand, the evidence as seen earlier, and the purport of the entire pleadings. The Plaintiff testified that the estimate of the total construction cost to be increased for the instant construction was about KRW 900,000 to KRW 1,000,000,000 prior to the conclusion of the instant first alteration contract, which was a public official belonging to the department in charge of executing the instant construction, was about KRW 90,00,000,000, the Plaintiff, Defendant 00, and Haan-gun was presumed to have been presumed to have been expected to have increased at least the total construction cost to be at least KRW 900,00,000,000 prior to the formation of the instant agreement, and ② the Haan-gun-gun was necessary for the instant construction contract to be modified on June 16, 2016, 2014.

On July 17, 2014, Gyeongnam-do sent a public notice that it would be possible to conclude the first alteration contract of this case to Haan-gun. On July 17, 2014, the Ministry of Construction and Transportation, which received the above public notice, sent a public notice demanding the contract department of this case to conclude the first alteration contract of this case to the contract department of this Haan-gun on July 18, 2014. ② Defendant 00 was not able to conclude the first alteration contract of this case between August 1, 2014 and August 30, 2014, which became the basis of the second alteration contract of this case between Haan-gun and Haan-gun on which the first alteration contract of this case was delivered, and the second alteration contract of this case was concluded between Haan-gun-gun and Haan-gun-gun on September 2, 2014 immediately after the completion of the order of business suspension.

B) Therefore, inasmuch as Haan-gun deposited the instant deposit for repayment under the instant first change contract, the claimant for payment of the deposit money of this case shall be deemed the Plaintiff, and as long as the Defendant and the Republic of Korea are disputing this, it shall be deemed that there exists a benefit of confirmation. Therefore, the Plaintiff’s above assertion is with merit.

3. Judgment on the assertion by Defendant Republic of Korea

A. The assertion

1) In light of the fact that Defendant 00 Construction submitted a plan for direct construction change to Boan-gun, etc., it is difficult to view that the Plaintiff is a subcontractor of Defendant 00, and the Plaintiff’s claim for construction payment against Defendant 00 Construction is invalid due to false representation of agreement, and thus, the Plaintiff is not the Plaintiff’s claim for payment of deposit money.

2) The instant second assignment order is valid, and even if the Plaintiff, as a subcontractor of Defendant 00, has a claim for construction price against Defendant 00 as a subcontractor of Defendant 00, insofar as the Plaintiff is a subcontractor of Defendant 00 Construction, the instant second assignment order does not have its effect on all the claim for construction price against Defendant 00 Construction’s warships under the instant first alteration contract.

B. Determination

1) As to the assertion of false conspiracy

On the other hand, the burden of proving the existence of a juristic act which establishes a claim is on the part of the claimant's assertion of its existence, and when the claim is asserted as invalid as a false declaration of conspiracy, the claimant has the burden of proof.

In the instant case, according to the health team, the above evidence and the purport of the entire pleadings, it can be acknowledged that the Plaintiff was entering into a subcontract for the instant construction project from Defendant 00 Construction, and that the Plaintiff and Defendant 00 Construction made the instant agreement and the instant notarial deed. According to the above facts, it can be said that there was a juristic act which establishes the Plaintiff’s claim against Defendant 00 Construction.

Therefore, Defendant Republic of Korea should prove that the above claim against Defendant 00 Construction was established based on false conspiracy. In full view of the evidence and the purport of the whole pleadings mentioned above, the Plaintiff’s failure to prepare a subcontract agreement with Defendant 00 Construction, the Plaintiff did not issue a tax invoice to Defendant 00 Construction, the Plaintiff’s failure to report sales without registering its business at the competent tax office, and the fact that Defendant 00 Construction prepared and submitted a direct construction contract concerning the instant construction to Haan-gun, but it is insufficient to recognize that the above claim against Defendant 00 Construction was based on false conspiracy solely on the fact of the above recognition, and there is no other evidence to acknowledge it, and the above assertion by Defendant Republic of Korea is without merit.

2) As to the assertion that the instant second assignment order does not extend to all the claim for construction price under the instant first alteration agreement

In full view of the following circumstances, i.e., ① the Plaintiff is obligated to pay a certain amount under the name of the “ installment payment” for Defendant 00, as long as the Plaintiff received the second order for all the claim for construction payment under the instant first alteration contract with Defendant 00 as an obligor, the validity of the instant second assignment order does not decrease; ② According to the instant agreement, the Plaintiff does not have the obligation to pay a certain amount under the name of the “ installment” for the claim for construction payment increased under the instant first alteration contract against Defendant 00; ③ the Plaintiff received the entire subcontract from Defendant 00 even if it violated the relevant laws and regulations, the Plaintiff’s payment does not become null and void in whole or in part. As such, the instant second assignment order affects all the claim for construction payment against Defendant 00 under the instant first alteration contract. Therefore, the allegation contained above is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition.