Seoul Central District Court 2013 Gohap527787

Whether there is a benefit to confirm if the seizure has been cancelled after the delinquency was deposited.

If the defendant submits a certificate that he/she will not claim any right to the depository after the cancellation of attachment, there is no benefit to confirm the claim for payment of deposit.

None

2014Na2018542 Revocation of Fraudulent Act

AAAAAA Corporation

Defendant, Appellant

Republic of Korea Overseas2

2013 Gohap 527787 Revocation of Fraudulent Act

January 13, 2015

January 22, 2015

1. The part concerning the Republic of Korea of the judgment of the first instance shall be revoked;

2. The plaintiff's lawsuit of this case against the defendant Republic of Korea is dismissed.

3. The appeal filed by the trustee in bankruptcy by the Defendant Bankrupt BBBBBBBB corporation is dismissed.

4. The costs of appeal between the Plaintiff and the Defendant Bankrupt BBBBBBBB corporation in bankruptcy shall be borne by the said Defendant, and the total costs of appeal arising between the Plaintiff and the Defendant and the Republic of Korea shall be borne by the respective parties.

1. Purport of claim

On November 11, 2013, DFF court of FF on the FF court of FF on the FF of 2000,000 won deposited by FFF court of FF in gold No. 0000 on 2013, it is confirmed that the Plaintiff has the right to claim payment of the deposit amount of KRW 00,000.

2. Purport of appeal

A. The bankruptcy trustee of Defendant Bankrupt BBBBBBB corporation (hereinafter referred to as “Defendant 2CC”): The part of Defendant administrator in the first instance judgment is revoked. The Plaintiff’s claim against Defendant 2CC is dismissed.

B. Defendant Republic of Korea: The part of Defendant Republic of Korea among the judgment of the first instance court is revoked. The Plaintiff’s claim against Korea is dismissed or dismissed.

1. Basic facts

The court's statements on this part are the same as the corresponding part of the judgment of the court of first instance, except for the following modifications or additions. Thus, they are cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

○ The 6th to the end of the 14th judgment of the first instance court shall be followed as follows.

Accordingly, on November 23, 2010, the Court of Appeals dismissed the appeal on February 00, 2013 on the ground that the first instance court co-defendant and the bankruptcy trustee of the EEEE (hereinafter referred to as the "trustee") were unable to claim the instant pledge against the Plaintiff due to the second commitment, and that the BBB could not claim the instant pledge against the Plaintiff, and that the FFFF court 201Ra0000 against the instant assignment order, but the appellate court dismissed the appeal on February 20, 2013 on the ground that the instant account deposit claim of the instant case was not a security that BB had decided not to claim against the Plaintiff by the second commitment. The administrator re-appealed by Supreme Court Decision 2013Ma0000, Mar. 20, 2010.

The 'the deposit' of the 7th and the 7th and 2nd and the 7th and 2nd and the 'the plaintiff and the defendants' are called 'the plaintiff and the defendants' as the 'the plaintiff and the defendants.'

○ The following shall be added between 7 pages 5 and 6:

(n) On December 5, 2013, when the instant lawsuit was pending, Defendant Republic of Korea received full payment of taxes in arrears from the administrator’s largestG regarding the instant deposit claim, and thus released the said seizure. In addition, around December 2014, Defendant Republic of Korea submitted a written confirmation stating that “A deposit officer of the FFF court is not the status of the deposit holder, and there is no right to the said deposit, and no right to the said deposit is asserted.”

○ 6th of the 7th page [based on recognition] add 1, 200 Da 1, 2000.

2. Defendant Republic of Korea defense;

With respect to the lawsuit of this case seeking confirmation that the Plaintiff deposited the claim for the refund of value-added tax on the account of this case (hereinafter “the deposit claim of this case”), the Plaintiff asserted that the Plaintiff’s lawsuit against the Defendant Republic of Korea is unlawful as there is no benefit of confirmation, since the Defendant Republic of Korea received a full repayment of the tax in arrears related to the seizure of the deposit claim of this case and expressed its intention to waive the claim for the refund of the deposit money of this case.

However, in a lawsuit for confirmation, there must be a benefit of confirmation as a requirement for the protection of rights. The benefit of confirmation is recognized only when it is the most effective and appropriate means for the defendant to receive a judgment of confirmation against the defendant, which is in danger of being present in the plaintiff's rights or legal status, and removing its apprehension and danger. Thus, the defendant in a lawsuit for confirmation is a person likely to cause apprehensions in the plaintiff's legal status through dispute over the plaintiff's rights or legal relations and has the benefit of confirmation against such defendant (see, e.g., Supreme Court Decision 91Da14420, Dec. 10, 191). Since the defendant Republic of Korea, which was in the proceeding of the lawsuit for this case on December 5, 2013, paid in full the delinquent tax on the seizure of the deposit claim of this case and cancelled the seizure, and it is not clear that the plaintiff's right to claim the deposit money of this case was the most effective and proper means to seek the plaintiff's right to claim the deposit of this case, and thus, the plaintiff's right to claim the deposit of this case cannot be seen.

Therefore, there is no benefit to the Plaintiff against the Defendant Republic of Korea to seek confirmation of the claim for payment of the instant deposit, so the said defense by the Defendant Republic of Korea is with merit.

3. The plaintiff's assertion and judgment on the claim against the defendant administrator andCC

A. The parties' assertion

1) Summary of the Plaintiff’s assertion

On October 1, 2009, the day on which the Plaintiff decided to perform the obligation to guarantee under the guarantee agreement of this case pursuant to Article 4(1)4 and 5 of the letter of transfer of this case’s deposit claim, the Plaintiff lawfully transferred the instant deposit claim from EE. Therefore, the Plaintiff’s claim for payment of the deposit money of this case was made by D Bank.

2) Summary of defendant administrator's assertion

Since the State’s duty to refund value-added tax is an obligation under public law specifically recognized from the perspective of tax policy, the instant deposit claim is not deemed a claim related to the instant business. Moreover, each provision of the instant transfer note or the first and second commitment note asserted by the Plaintiff falls under the terms and conditions, and as long as the content of the clause is ambiguous and unclear, it constitutes a clause contrary to the principle of trust and good faith as prescribed by the Act on the Regulation of Terms and Conditions (hereinafter “Terms and Conditions Regulation Act”) or a clause which is unreasonably unfavorable to customers or cannot be anticipated of the occurrence and content of the right, it is null and void. Accordingly, the instant deposit claim does not include the instant deposit claim that the Plaintiff acquired from EEE pursuant to the transfer note, the first and second commitment note, and the instant transfer order became final and conclusive, Defendant 2CC acquired the instant deposit claim.

B. Determination

1) The court's statements on this part are as follows: (a) the part of the first instance court's judgment from 11 to 12 "BB does not go to or go to ; and (b) the part of the first instance court's judgment from 8th to 12th 15th , except for supplementing the following judgment; and (c) thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2) Supplement of judgment

The defendant CC, as a pledgee of this case, has a real right claim, and the plaintiff is merely a creditor as a transferee, and even if the plaintiff is the transferee, it cannot give priority to the rights of the defendant 2CC, which are all creditors based on the pledge of this case, and DBB consented to the pledge of this case on or around April 2009, and BBB obtained a fixed date on the written consent of the pledge of this case on May 0, 2009. The transfer of this case was prepared on December 00, 2006, but the transfer of this case's deposit claim of this case becomes effective as the condition of suspension is fulfilled on October 0, 2009 or April 0, 2010. Thus, the pledge of this case is asserted to have priority over the above claim of this case.

The Plaintiff’s right to BB was established on December 13, 2006 through the instant transfer 4 BB, and the Plaintiff and EE concluded a transfer contract with the terms of suspending the Plaintiff’s guaranteed obligation under the instant guarantee agreement. After the occurrence of a guarantee accident stipulated in the instant guarantee agreement, it can be deemed that the Plaintiff’s deposit claim was transferred to the Plaintiff on October 0, 209 or around April 0, 2010 when the terms of suspension stipulated in the instant transfer 4 BB agreement were fulfilled. However, the Plaintiff’s right to BBB was established on December 00, 207, which was the first day before the fulfillment of the terms of the said transfer 4 BB agreement, and the Plaintiff’s right to deposit claim was not established on the basis of the instant transfer 1 BB agreement, and DBB agreement was established on October 20, 2009, and the Plaintiff’s right to deposit claim was acknowledged as not being able to be able to be able to set up on the instant transfer 20B agreement.

Therefore, the Plaintiff is deemed to have received the instant deposit claim lawfully. Therefore, the right to claim for payment of deposit money on the instant deposit deposit money deposited by the DDA bank is the Plaintiff, and as long as Defendant 2CC and the administrator of the U.S. dispute this right, the Plaintiff may have a benefit to confirm it.

4. Conclusion

Therefore, the plaintiff's lawsuit of this case against the defendant Republic of Korea is dismissed, and the plaintiff's claim of this case against the defendant administrator and the plaintiff's claim of this case against the defendant CC is accepted on the grounds of its reasoning. Since the part against the defendant Republic of Korea in the judgment of the court of first instance is unfair on the grounds of its conclusion, this part is revoked and the lawsuit of this case against the plaintiff's defendant Republic of Korea is dismissed, and the part against the defendant 2CC in the judgment of the court of first instance against the defendant 1 is just as it is concluded. Thus, the appeal by the defendant 2CC is dismissed on the ground of its ground, and it is dismissed on the ground that the plaintiff's appeal has no interest in confirmation during the trial of the court of first instance. As to the total cost of lawsuit between the plaintiff