Seoul Central District Court-2012-Annex-6278 (Law No. 17, 2015.09)

A lawsuit is brought by another execution creditor to seek confirmation of a claim for withdrawal of mixed deposits against the state in connection with claims to be seized under the National Tax Collection Act.

For the purpose of attracting overseas investment, a notarial deed that concludes a monetary loan contract even though there is no obligation relationship, and accepts a compulsory execution at the time of the repayment of the borrowed money without delay constitutes a false declaration of agreement, and thus, an execution creditor who executes the said notarial deed has no right to claim the payment of the deposit.

Article 24 of the National Tax Collection Act

2015Na2059144 Confirmation of the right to withdraw deposited goods

IsaA

Republic of Korea and three others

December 2, 2017

on 017 October 06, 201

1. The plaintiff's appeal against the defendants is dismissed in entirety.

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

the Gu Office's place of service and place of service

The judgment of the court of first instance is revoked. Among the Plaintiff and the Defendants, it is confirmed that the Plaintiff had the right to deposit and pay KRW 118,800,000 deposited by SBS Co., Ltd. (hereinafter “SBS”) with the Seoul Central District Court 200O gold 17941 on September 16, 201 (the first instance court accepted the Plaintiff’s claim against Co-Defendant KimB, ChoB, Cho CC, and Park DoD, and the Plaintiff’s claim against the Defendants was dismissed, and only the Plaintiff’s claim against the Defendants was subject to the judgment of this court).

1. Basic facts

This Court’s reasoning concerning this part is as follows: (a) it is identical to the corresponding part of the first instance judgment (Article 3, 9, and 6, 1, 1, 1, 3, 3, 3, 3, 4, 4, 4, 4, 4, 4, 4, 5, 5, 5, 1, 1, 1, 1, 1, 2, 3

2. Judgment on the plaintiff's assertion

A. The parties' assertion

1) Plaintiff

This Court's explanation is the same as the corresponding part of the judgment of the court of first instance (No. 6, No. 5, and No. 16). Thus, this Court's explanation is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure

2) Defendant

This case’s notarial deed is null and void as it was made by means of a false conspiracy as if the O's notarial deed did not have any obligation or obligation between OO and O's notarial deed, but has no obligation or obligation against OO, and thus, the plaintiff’s successor as the successor is also null and void.

No person may seek confirmation of a claim for advance payment of each of the instant deposits by a notarial deed.

B. Determination on the validity of the notarial deed of this case

1) If the notarial deed of this case is null and void, the plaintiff's assertion premised on the validity of the notarial deed is without merit, and therefore, we first examine the validity of the notarial deed of this case.

2) Even though it is not bound by the facts recognized in the judgment of other civil cases, etc., the facts established in the judgment of other civil cases, etc. shall be valuable evidence unless there are special circumstances. Thus, it cannot be rejected without any reasonable reasons, in particular, since two previous and previous civil cases are the same as the parties to the dispute and are the basis of the dispute, it is more so more so that a new claim may be filed as a result of the difference in the subject matter of lawsuit and not contrary to res judicata (see Supreme Court Decision 2008Da92312, 92329, Sept. 24, 2009).

3) Examining the following circumstances in light of the legal principles as seen earlier, where there is no dispute between the parties to this court, or where Eul and Eul evidence Nos. 1 through 4, and Eul's evidence No. 20 can be acknowledged by comprehensively taking into account the overall purport of pleadings, it is reasonable to view that the notarial deed of this case is invalid as if it was prepared as if it had a loan claim against OO even though there was no obligation between OO and OOO for the purpose of unrecing the assets of OO for the purpose of attracting foreign investment, and since OO was prepared as if it had a loan claim against OO until the time when the management of OO and OO was done.

A) Progress of the relevant litigation

(1) Lawsuit for return of unjust enrichment

Defendant C&O filed a lawsuit against OTO seeking a return of an amount equivalent to KRW 119,477,706 paid by OT on the basis of the instant notarial deed (Seoul Central District Court 201GaOO) and received a favorable judgment on February 1, 2012.

The judgment of the court of first instance appealed as Seoul High Court 2012NaOO on February 28, 2013, while the court of appeal appealed as to the above judgment of the court of first instance, it held that the authentication of this case was null and void since the authentication of this case was made by means of a false agreement, and rendered a judgment that partly accepted the claim of the defendant KONO [it is difficult to view that the above authentication of this case was made in the above lawsuit that the plaintiff was liable for damages equivalent to US$ 3,300,000 against the plaintiff during the process of expanding its business to the United States, while OO was in the process of expanding its business to the United States, it was difficult to view that there was a liability for damages or that there was a liability for the authentication of this case as part of the above payment]. For the purpose of facilitating enforcement in the Republic of Korea, it was difficult to view that the above damages liability of this case was made.

① On January 19, 2010, when the instant notarial deed was prepared, the representative director of the Switzerland was E, and the representative of the OO was the FFF of the In-house Director’s Rights, but the two were punished.

② Around September 2009, EE acquired the shares and management rights of SO through MeO Co., Ltd., and took office as a representative director on November 12, 2009. At the time of acquisition of management rights, EE was invested in the acquisition fund from SO that was maintained a kind of relationship by introducing a branch in around 1997. At the same time, EO participated in the management of SOO by taking charge of the president’s duties.

③ A business entity that establishes and operates the Plaintiff and OCO (OO) in the United States, and established OO on October 19, 2009 in order to operate its business in the Republic of Korea, the OO established the OOE on October 19, 2009, under which it entrusted the name of shares to the POF, and the OF was the representative of the OOF in a formal manner.

④ Around January 2010, HE and HF may attract investment equivalent to USD 40 million in the United States. However, it is necessary to increase the assets of OO in the future rather than SOO that is listed companies. As such, OE and HF proposed that OO has a claim against SOO, they made this case’s Notarial Deed as the representative of each SOO and HOEF.

⑤ At around April 201, SO confirmed the above facts, and published that the EE made the instant Notarial Deed and made it public by falsely bearing KRW 3,750,000,000 for OO's delivery, thereby engaging in occupational breach of trust.

(6) On the other hand, in November 2009, the OOE acquired the shares and management rights of the OONF, a company manufacturing and selling automobile parts with the funds of OOO. In the process, there was a legal dispute between OF, EE, and OO on the actual ownership of the shares and management rights, the settlement of investment funds, and the ownership relationship of OOE. In addition, the OO's operation of the OO and the embezzlement of the company's funds, which led to further civil and criminal disputes.

Although the Supreme Court filed an appeal against the above appellate judgment as the Supreme Court 2013 DaOOO, the Supreme Court's judgment was affirmed on July 23, 2015, deeming that the instant notarial deed was null and void as a false declaration of conspiracy on the grounds that it was justifiable in the above appellate court's judgment, and thus, the above appellate court's judgment was finalized.

(2) Progress of lawsuit of demurrer against distribution

In the distribution procedure case of the Seoul Central District Court 2010 OOOOO, Defendant K&O filed a lawsuit of demurrer against the distribution that the O&O deleteds KRW 432,379,980, which was distributed on the basis of the instant notarial deed from among the distribution schedule prepared by the said court, and filed a lawsuit of demurrer against the distribution that requested the Defendant K&O to correct it as dividend (Seoul Central District Court 2012 GohapO). The Plaintiff participated in the Defendant’s Intervenor.

On May 27, 2014, the court of first instance held that the No. 3.750,000 won loan as stated in the No. notarial deed of this case was null and void, and that there was no dispute between the parties, and that the Plaintiff, who was the intervenor to the lawsuit of this case, did not pay OO the loan of KRW 3.75,00,000 as stated in the No. notarial deed of this case, and that there was no obligation to compensate for the cause of the No. notarial deed of this case claimed by the Plaintiff as the intervenor to the lawsuit of this case [the damage liability equivalent to the U.S. 3.3 million U.S. dollars (Korean Won KRW 3.75,50,000) that the

The judgment of the court of first instance appealed as Seoul High Court 2014NaOOO on September 11, 2015, but the appellate court rendered a judgment dismissing the appeal on September 11, 2015, and the judgment of the appellate court was withdrawn after the appeal was filed by OOOO, and the judgment of the appellate court became final and conclusive on October 15, 2015.

(3) The progress of litigation to confirm the withdrawal of the relevant deposit

The Plaintiff filed a lawsuit (Seoul Central District Court 2012GaOOO) against the Defendants, etc. to confirm that SBS’s claim for payment of deposit money was made for mixed deposits with respect to the amount of money contributed by the performers belonging to SBS, on the grounds that the instant execution clause was granted to the Defendants, etc. as in the instant case.

On October 16, 2015, the court of first instance rejected the Plaintiff’s claim by finding that the notarial deed of this case is invalid as a false declaration of agreement, based on the aforementioned related unjust enrichment return lawsuit and the fact-finding and judgment in the lawsuit of demurrer against distribution.

The Plaintiff appealed from the above judgment of the first instance court as Seoul High Court 2015 OOO, but the appellate court rendered a judgment dismissing the appeal on December 16, 2016, and the said judgment of the appellate court became final and conclusive around that time because the Plaintiff did not file an appeal.

B) The instant lawsuit and the instant lawsuit are identical to the Plaintiff, Defendant KWO, and OTRO. The substance of the dispute at issue is whether the act of preparing the instant authentic deed constitutes a false conspiracy, namely, whether the act of preparing the instant authentic deed constitutes a false conspiracy, and whether the Plaintiff and OTR exists the obligation for the cause of the instant authentic loan contract asserted by the Plaintiff and OTR, and also are identical to the facts constituting the basis of the dispute (the relevant lawsuit seeking confirmation of deposit withdrawal is the original of the instant case, the Defendants are both parties, as well as the Defendants are both parties, and SBS is the lawsuit seeking confirmation of the claim for payment of money deposited by SBS with the contributions of the performers belonging to SOO). The core evidence submitted by the Plaintiff in the instant lawsuit appears to have been already submitted in the relevant lawsuit.

4) The plaintiff asserts that the facts acknowledged in the above judgments cannot be admitted as evidence in the related lawsuits because it was erroneous for the plaintiff to recognize facts based on the perjury in the dispute relation with the plaintiff. However, the evidence alone submitted by the plaintiff is insufficient to reject the facts acknowledged in the judgment in the related lawsuits.

3. Conclusion

Therefore, the plaintiff's claim against the defendants should be dismissed without any further review. The judgment of the court of first instance with the same conclusion is justifiable, and all appeals against the defendants are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.