(영문) 대전지방법원 2016. 07. 20. 선고 2015가합104965 판결

Based on the aggregate value-added tax of KRW 19,522,540, the Plaintiff seized KRW 19,522,540, out of the total amount claims based on the instant assignment order that the Plaintiff had against Nonparty Corporation. The instant assignment order was served on Nonparty Corporation, a garnishee, on March 3, 2014.

E. Deposit for the execution of the Nonparty Corporation

1) Claims and bonds regarding the 2BL landscaping construction from April 28, 2014 to April 29, 2014

After conducting a confirmed inspection, the work price of AAA for 2BL landscaping works shall be 455,978,859

The Board was settled as the source.

2) On June 20, 2014, with respect to the construction cost payable by the Non-Party Corporation to AAA on the part of the Non-Party Corporation

seizure, provisional seizure, etc. by creditors of AAA including the Plaintiff and the Defendant, etc.

In accordance with Paragraph 1 of Article 248 of the Civil Execution Act, the action against the Non-Party Corporation AA under section 248(1)

In the amount of KRW 455,978,859 for the 2BL construction cost, the amount of KRW 53,460,00 for direct payments, and KRW 22,79,719,917 remaining after deducting the amount of KRW 22,942 for the security deposit, and the amount of KRW 379,719,917 for the 2014 for the deposit of this case (hereinafter referred to as "the deposit of this case").

3) On June 20, 2014, June 20, 2014, the deposit date of the instant case, the Non-Party Corporation

§ 2014Ma817, Daejeon District Court, accordingly, reported the reasons for deposit under section 4,

Distribution procedures (hereinafter referred to as "distribution procedures of this case") began.

F. Order of seizure and collection against Defendant BBB BB’s claim for payment of deposit money

1) Defendant BBB (the trade name before the change is referred to as “ee”; hereinafter referred to as “Defendant”).

BBB) The Daejeon District Court 2013Kadan15965 against the Plaintiff

On November 8, 2013, the above court filed a lawsuit against the Plaintiff on November 8, 2013 46,000,000

The judgment ordering the payment of the original and its damages for delay was pronounced, and the above judgment was around that time.

was finally determined.

2) Defendant BBB’s title with the duly authenticated copy of the above judgment, Daejeon District Court 2015 other claims

No. 4134, the Plaintiff filed an application for the seizure and collection order concerning KRW 65,660,274, among the instant dividend claims that the Plaintiff had against the Republic of Korea, and received a decision on March 25, 2015 from the above court to issue the seizure and collection order.

(g) Preparation of a distribution schedule and the plaintiff's objection to the distribution;

1) On July 28, 2015, the Daejeon District Court prepared a distribution schedule with the content that the dividends amounting to KRW 380,654,168, which is to be actually distributed in the instant distribution procedure (hereinafter “instant distribution schedule”) as follows.

2) The Plaintiff was present on the aforementioned date of distribution and the entire amount of distribution to the Defendants out of the distribution schedule of this case

On August 3, 2015, the instant lawsuit was filed.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 6, 9, Eul evidence 2

(E) evidence Nos. 2 and 2, the purport of the whole pleadings

2. The plaintiff's assertion

Any claim based on the original copy of the payment order issued by the Daejeon District Court 2012j 10635 against the Plaintiff AA

As of July 27, 2015, the instant distribution schedule was KRW 446,450,426, which was the day preceding the date of distribution. Meanwhile, the amount distributed to the Defendants among the instant distribution schedule should be deleted for the following reasons, and the amount deleted should be distributed to the Plaintiff within the scope of the Plaintiff’s claim amount.

가. 1순위 배당권자 �피고 대한민국(소관: 공주세무서), 피고 BBBB

1) The imposition of value-added tax of KRW 1,522,540 on February 27, 2014, on the official tax books under Defendant Republic of Korea

Based on rights, the Plaintiff’s claim for full payment based on the instant assignment order that the Plaintiff had against Nonparty Corporation

Although 19,522,540 won was seized, the Plaintiff paid the total amount of the above value-added tax thereafter. Defendant Republic of Korea has no right to receive dividends in the instant distribution procedure.

2) On November 8, 2013, Daejeon District Court Decision 2013Kadan15965 decided November 8, 2013 and Defendant BBB

Defendant BBB entered into an executory agreement with respect to such judgment. Defendant BBB entered into an executory agreement with the executory title.

It was subject to the ruling of seizure and collection order under the preceding district court 2015TT 4134, but the above ruling is above.

Defendants BBB shall not be entitled to dividends in the instant dividend proceeding.

There is no right to receive.

(b) Defendant Republic of Korea (competent District Office, Daejeon District Office, and Daejeon District Office) with a secondary dividend right;

The Republic of Korea (Jurisdiction: Daejeon Tax Office, Daejeon Tax Office) shall have the obligation to pay national taxes to AA.

Accordingly, AAA attached a claim for the construction cost against the non-party Corporation, but the defendant

National Tax Claim against AAA of the Republic of Korea has been repaid in full prior to the date of distribution of this case

Defendant Republic of Korea has no right to receive dividends in the instant dividend proceeding.

3. Determination as to Defendant BB’s main defense to safety

A. The assertion

1) Defendant BB’s claim against the Plaintiff for the acquisition amount No. 2013da15965 against the Plaintiff

Defendant BBB obtained a final and conclusive judgment in favor of the Plaintiff. Defendant BBB obtained an executory title against the Plaintiff.

Since it is a creditor who has an authentic copy, the plaintiff is subject to the application pursuant to Articles 256 and 154(2) of the Civil Execution Act.

c. A claim objection shall be filed against BB. The plaintiff shall be brought against BB.

The filing of a lawsuit of demurrer against distribution is unlawful.

2) The Plaintiff’s objection against Defendant BB as the Daejeon District Court 2015Kadan26266

A lawsuit of demurrer against Defendant BB was brought by the Plaintiff. The lawsuit of demurrer against distribution of this case was brought by the Plaintiff against Defendant BB.

It is unlawful as it constitutes a lawsuit which overlaps with the same content as the lawsuit of a claim objection.

B. Determination

1) As to the assertion that an action of demurrer should be brought

A) A creditor who has an executory exemplification of executive titles under Article 154(2) of the Civil Procedure Act

The debtor who has raised an objection to the claim shall file a lawsuit of objection to the claim.

B) However, the "debtor" under the above provision shall be the debtor in the distribution proceeding (the case at issue).

The debtor in the distribution procedure refers to AAA. The plaintiff is the debtor in the distribution procedure in this case.

In the capacity of the creditor of AAA, the debtor, filed a lawsuit of demurrer to the distribution of this case, and non-performance

J. even if Defendant BBB has an executory title against the Plaintiff,

An objection against a creditor who has an executory exemplification of an executive title under the above provision.

The debtor can not be considered as one debtor.

C) Defendant BB’s above assertion is without merit.

2) As to the assertion that a double lawsuit is filed

A) According to the statements in Gap evidence Nos. 4, 7, 10, 11, and Eul evidence No. 1, the lawsuit in this case is pending.

On July 22, 2015, when the Plaintiff was on July 22, 2015, Daejeon District Court 2015da26266 against Defendant BB

In the case of filing a lawsuit of demurrer, the court below against the plaintiff of the defendant BB on April 7, 2016

The judgment in favor of the Plaintiff was rendered on April 29, 2016 that the previous district court 2013da15965 decided that the compulsory execution based on the judgment in the acquisition money case shall not be permitted, and the fact that the said judgment became final and conclusive on April 29, 201

B) The instant lawsuit of demurrer against the distribution was filed earlier than the instant lawsuit of demurrer against the distribution, and the said lawsuit was subsequently filed.

In a lawsuit of demurrer, as long as the judgment above became final and conclusive upon winning the plaintiff in the lawsuit of demurrer, the lawsuit of this case and the above

The plaintiff's defendant, even if not examining the identity of the subject matter of the lawsuit of the claimant's objection;

A lawsuit of demurrer against the distribution of this case against BB cannot be deemed to constitute a double lawsuit of demurrer against the distribution.

C) The above assertion by Defendant BB is without merit.

4. Judgment on the merits

A. The plaintiff's claim amount

1) A lawsuit of demurrer against distribution is filed with respect to himself by reducing the dividend amount of a person entered in the distribution schedule.

seeking the modification of a distribution schedule or the preparation of a new distribution schedule in order to ensure that the distribution is made;

Therefore, the plaintiff did not have the defendant's claim in order to win in the lawsuit of demurrer against distribution.

The right to receive dividends of money that he/she has distributed to the defendant, not sufficient for his/her assertion and certification only;

Even if there exists an objection, it shall be alleged and proved (see Supreme Court Decision 2010Da42259, Jul. 12, 2012). Meanwhile, even if a creditor who demanded a distribution until the period for the demand for distribution, demands only the amount of a part of the claim, where he/she demand a distribution, the said creditor may not add or expand any claim that has not been demanded after the period for the demand for distribution expires (see Supreme Court Decision 2011Da44160, May 10, 2012).

2) The plaintiff asserts that the amount of claims held against AA is KRW 446,450,426.

However, the Plaintiff filed the instant lawsuit at the time of filing the instant lawsuit. However, the Plaintiff received the instant order on December 17, 2012 by designating the authentic copy of the payment order issued by Daejeon District Court 2012 tea10635 as the executive title, and the fact that the claim amount of the said assignment order was 353,498,434, as seen earlier. Meanwhile, there is no evidence to prove that the Plaintiff received a demand for distribution of a claim other than the said claim amount prior to filing a report on the grounds for deposit of Nonparty Corporation, the completion period for demanding distribution of the distribution procedure

3) In addition, in full view of the purport of the entire arguments as seen earlier, the Plaintiff’s distribution procedure of this case

The claim amount of the attachment and assignment order of this case on April 18, 2014 to the Daejeon District Court.

353,498,434 won, 68,427,779 won, on the premise that the account statement was received, was submitted;

Based on this, the Daejeon District Court shall calculate the amount of dividends to the plaintiff in KRW 285,070,655, excluding KRW 68,427,779, which the plaintiff reported that the amount of dividends to the plaintiff was paid to the plaintiff in KRW 353,498,434, and the amount of the dividends to the plaintiff in the above amount is again the amount of the claims against the defendant Republic of Korea (official tax affairs) and the defendant BB.

The amount of dividends for the plaintiff seems to be calculated by deducting the amount.

4) Therefore, the Plaintiff’s claim amount is KRW 353,498,434, the claim amount of the instant assignment order.

285,070,655 won calculated by deducting 68,427,779 won received prior to the date of distribution of high-priced goods.

(b) A claim against Defendant Republic of Korea (Jurisdiction: Civil Code);

1) The Plaintiff, on February 27, 2014, on the part of the Defendant’s Republic of Korea, against the Non-Party Corporation.

of KRW 19,522,540 out of the total amount claim based on the instant assignment order held by the court and the officer

The defendant Republic of Korea asserts that he paid the outstanding delinquent tax amount in full, and the defendant Republic of Korea on May 21, 2014

Recognizing that the above delinquent tax amount related to seizure was fully paid, the Defendant Republic of Korea paid the instant dispatch.

The plaintiff's assertion that there is no right to receive dividends of KRW 19,522,540 in the first order in the procedure is not disputed.

2) Accordingly, the amount of KRW 19,522,540 that is distributed to Defendant Republic of Korea in the first order must be deleted; and

B. The Plaintiff’s above assertion is with merit.

1) Defendant BBB: Daejeon District Court 2013Kadan15965 against the Plaintiff

An authentic copy of the judgment is an executory title, subject to the ruling of seizure and collection order of 2015TT 4134, and was distributed KRW 65,660,274 in the dividend procedure of this case as the collection right holder against the plaintiff.

2) However, on November 8, 2013, the Daejeon District Court 2013 between the Plaintiff and Defendant BBB

The Daejeon District Court rendered a favorable judgment in favor of the Plaintiff, on April 7, 2016, stating that: (a) there was an agreement on non-execution in relation to the instant case; (b) the filing of a lawsuit of demurrer with the Daejeon District Court 2015Kadan26266; and (c) the said court rendered a judgment in favor of the Plaintiff on April 7, 2016 that the said judgment rendered against the Plaintiff of the Defendant BB by the Daejeon District Court 2013Kadan15965, supra; and (d) the said judgment became final and conclusive on April 29, 2016.

3) The demotion against the Plaintiff by Defendant BB based on the judgment on the acquisition money case No. 2013da15965

No enforcement is permitted. Accordingly, the seizure and collection order of the claim No. 2015, 4134, the authentic copy of the judgment as mentioned above, is not effective, and Defendant BB does not have the right to receive dividends in the distribution procedure in this case as the collection right holder against the plaintiff.

4) Defendant BB’s KRW 65,660,274, which was distributed to Defendant BB in the first order, must be deleted, and the Plaintiff shall be removed.

to pay dividends to the Plaintiff. The Plaintiff’s above assertion has merit.

D. Claim against the second-order dividend amount in Defendant Republic of Korea

1) The burden of proving the grounds for objection against distribution in a lawsuit of demurrer against distribution is also proved in a general civil procedure.

Inasmuch as the principle of distribution of clear liability is followed, the Plaintiff did not establish the Defendant’s claim.

In the case of assertion, the defendant is responsible for proving the cause of the claim.

If a claim is asserted as invalid or extinguished due to false declaration of agreement, the plaintiff

In addition, a person is liable to prove facts constituting grounds for disability or extinguishment (see Supreme Court Decision 2005Da39617, Jul. 12, 2007).

2) The defendant Republic of Korea, as described in the foregoing [Attachment 1], shall accord the defendant Republic of Korea to AA.

AAAAA on the basis of national tax claims, such as corporate tax, wage and salary tax, and value added tax.

The plaintiff seized the claim for the construction price of this case against the company, and the plaintiff asserts that the defendant Republic of Korea has received all national tax claims related to the seizure from BBB.

3) AAAAA against the Defendant Republic of Korea solely with the descriptions of the evidence Nos. 5 and 9

[Attachment 1] It is insufficient to recognize that all national tax claims related to the seizure mentioned in Table 1 were repaid.

of this case, there is no other evidence to acknowledge it.

4) Rather, according to the evidence No. 3 as seen earlier, the Defendant Republic of Korea [Attachment 1]

AAA’s claim for construction payment against the non-party Corporation as described in the

Of national tax claims held by a State against AA, the claims described below [Attachment 2] shall continue to exist until now.

Recognizing the fact that the defendant Republic of Korea was delinquent and only the above delinquent amount is found to be the distribution procedure of this case

The amount exceeding 95,512,513 won (=6,973,751 won + 28,538,762 won) who received a dividend in the second order. The Plaintiff’s assertion that bbb paid all national taxes owed to the Defendant Republic of Korea is without merit.

5) As seen earlier, the Plaintiff is entitled to receive dividends in the instant dividend proceeding.

The right amount is KRW 285,070,655. The Plaintiff’s additional dividend amount is KRW 85,182,814 (=19,52,522,540 +65,660,274) of the Plaintiff’s claim amount. It cannot be deemed that the Plaintiff has the right to receive additional dividends in the dividend procedure of this case.

6) The Defendant Republic of Korea’s second dividend amount should be deleted and distributed to the Plaintiff.

The plaintiff's assertion is without merit.

5. Conclusion

The plaintiff's claim against the defendant BB is justified, and the defendant's claim against the defendant Republic of Korea is accepted.

The Gu shall accept the case within the scope of the above recognition and dismiss the remainder of the claim due to the lack of grounds.

this decision is delivered with the judgment of the court below.

Conclusion of Pleadings

on October 25, 2016

Imposition of Judgment

on July 2016 20

Text

1. On July 28, 2015, the distribution amount of KRW 19,522,540 to the Republic of Korea and KRW 65,60,274 to Defendant Aa, in the distribution schedule prepared by the same court as of July 28, 2015, with respect to the distribution procedure case of Daejeon District Court 2014Ma817, the distribution amount of KRW 199,887,841 to the Plaintiff shall be corrected to KRW 285,070,665, respectively.

2. The plaintiff's remaining claims against the defendant Republic of Korea are dismissed.

3. Of the costs of lawsuit:

A. 80% of the portion arising between the Plaintiff and the Defendant Republic of Korea shall be borne by the Plaintiff, and the remainder by the Defendant Republic of Korea respectively;

B. The part arising between the Plaintiff and Defendant BBB is borne by Defendant BB.

Of the distribution schedule prepared by the same court on July 28, 2015, the amount of dividends to the defendant Republic of Korea shall be KRW 19,522,540,540,66,973,751, and KRW 65,660,274 for the defendant BBB, and KRW 28,538,762,762 for the defendant Republic of Korea shall be adjusted to KRW 2,560,521, and the amount of dividends to the plaintiff shall be adjusted to KRW 378,02,647,647, among the distribution schedule prepared by the same court on July 28, 2015.

Reasons

1. Basic facts

A. The Korea Land and Housing Corporation (hereinafter referred to as the “Korea Land and Housing Corporation”) under the contract between AAA and the Non-Party Corporation (hereinafter referred to as the “SAAA”) has awarded a contract for the 3BL apartment landscaping work (hereinafter referred to as the “2BL landscaping work”) on December 21, 2012 with the cC Co., Ltd. (hereinafter referred to as the “AAAAAAAAA”) at KRW 2,018,659,000 for the payment on December 21, 2012 (hereinafter referred to as the “instant contract”). The above payment was changed to KRW 1,711,431,39.

B. The plaintiff's claim attachment and assignment order

1) On September 26, 2012, the Plaintiff filed an application against AA for a payment order against Daejeon District Court 2012 tea10635. On September 26, 2012, the said court issued a payment order ordering AA to pay the Plaintiff KRW 341,00,000,000, and damages for delay.

2) On December 17, 2012, the Plaintiff filed an attachment and assignment order with the Daejeon District Court 2012TTTT17154, which issued an executory order with respect to KRW 353,498,434, out of the claim for construction price based on the instant contract held by AAAA against Nonparty Corporation, and received a decision on the attachment and assignment order of claims (hereinafter “instant assignment order”) with the Daejeon District Court 2012TTTT17154, which was issued on December 17, 2012. This was served on Nonparty Corporation, the garnishee, the debtor on December 17, 2012.

C. Seizure of Defendant Republic of Korea

참조조문

참조판례

-대법원 2007. 7. 12. 선고 2005다39617 판결

-대법원 2012. 5. 10. 선고 2011다44160 판결

-대법원 2012. 7. 12. 선고 2010다42259 판결

유사 판례

-서울행정법원 2013. 04. 12. 선고 2012구합32093 판결

-대전지방법원 2016. 07. 20. 선고 2015가합104934 판결

-서울고등법원 2018. 11. 23. 선고 2018누54738 판결

-서울중앙지방법원 2012. 09. 12. 선고 2012가단31152 판결

-대전지방법원 2016. 05. 25. 선고 2014구합4445 판결