amount distributed by false collateral security shall constitute unjust enrichment.

Since the Defendant established a false mortgage on the real estate held by a delinquent taxpayer and received dividends therefrom, it constitutes unjust enrichment and thus, it should be returned to the Plaintiff.

Article 30 of the National Tax Collection Act (Cancellation of Fraudulent Act and Restoration to Original State)

Suwon District Court 2017 Gohap103984

Korea

IsaA

May 4, 2018

May 25, 2018

1. The defendant shall pay to the plaintiff 00 million won with 5% interest per annum from January 17, 2012 to October 25, 2016 and 15% interest per annum from the next day to the day of complete payment.

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

3. Paragraph 1 can be provisionally executed.

Cheong-gu Office

As set forth in the text.

1. Basic facts

A. On April 9, 2007, thisB issued the Defendant a registration of establishment of the right to collateral security (hereinafter “instant right to collateral security”) with respect to the amount of 00,000,000 won for establishing a contract with respect to the amount of 1142-7, 737 square meters (hereinafter “instant real property”) owned by the Defendant on the same day on the same day.

B. On the other hand, on March 25, 2008, the date of the attachment of the instant real estate on March 25, 2008, to collect delinquent national taxes, including global income tax, against BB, and the attachment registration was completed on the 28th of the same month.

C. On July 4, 2011, theCC did not request the Korea Asset Management Corporation to conduct a public auction on the instant real estate in accordance with the disposition on default. The Korea Asset Management Corporation commenced the real estate public auction procedure (hereinafter “instant public auction procedure”) under the CC No. 2011-101, a management number of the instant real estate.

D. On March 31, 2007, when the Korea Asset Management Corporation imposed corporate tax on BB on the Plaintiff’s second taxpayer on the date prior to the instant collateral security rather than the instant collateral security in the public sale process, it prepared a distribution calculation statement on January 17, 2012 with regard to the sales proceeds of the instant real estate as indicated below, and distributed KRW 00,000,000 to the Defendant of the fourth priority.

Priority

Legal Relationship

Name

Amount of establishment

(Date of Establishment)

Amount of actual bonds (cost)

Distribution Amount

(won)

Principal of bonds

Creditor of Bonds

Expenditure Expenses

guidance.

1

Expenses for disposition on default

Expenses for disposition on default

10,969,220

2

Attachment

CC tax secretary;

98.8.24 Seizure

00,000,000

00,000,000

0

00,000,000

00,000,000

3

Request for Delivery

CC Agency

(08.9.10~08.9.10)

00,000

0,000

0

00,000

00,000

4

Mortgage

IsaA

00,000,000 ( April 9, 2007)

00,000,000

0

0

00,000,000

00,000,000

5

Delegation Authority

CC tax secretary;

28.3.28.Attachment (07.81~11.9.1)

00,000,000

00,000,000

0

00,000,000

0

6

Request for Delivery

CC Agency

(10 to 11.12.10)

00,000,000

0,000,000

0

00,000,000

0

guidance.

00,000,000

00,000,000

0

00,000,000

00,000,000

Other important matters

-2 The second distribution shall take precedence over the distribution to all owners (GlaH) of attachment authority.

-third priority distributions to the tax (property tax) in question;

-The distribution between tax claims and secured claims shall be made by comparing the statutory due date and the due date, and the distribution order shall be determined by applying the priority of seizure.

In the event of acceptance of this case, the public auction was conducted on the date of establishment of the mortgagee (AA and the defendant) more than the statutory due date (the statutory due date March 31, 2007). However, on October 19, 2011, the imposition of corporate tax was cancelled (the cancellation of the imposition by cancellation of the secondary tax liability and the confirmation of the corporate tax and EEE investigator) and there is no amount distributed to the delegating agency. (EE investigator) The amount of the national tax in arrears, the statutory due date of which comes at the time of allocation of the public auction procedure in this case, is KRW 00,000 (excluding the corporate tax in arrears as the secondary taxpayer whose tax payment date was cancelled for B) but the Plaintiff did not receive the distribution by being higher than the distribution order of the Defendant’s collective security in this case.

[Ground of recognition] Facts without any dispute, entry of Gap's 1 to 4, and purport of whole pleading

2. Determination as to the cause of action

A. Summary of the parties' assertion

The plaintiff asserts that the defendant should pay to the plaintiff 00,000,000,000 won and damages for delay, because the amount distributed to the defendant during the public auction procedure of this case is distributed to the plaintiff, who is the tax claim of this case, without any legal ground, as a false claim that the defendant did not exist as the secured claim of this case as of January 10, 2006, which was paid by the defendant as the secured claim of this case as of January 10, 2006, because the amount to be apportioned to the defendant in the public auction procedure of this case was distributed to the defendant without any legal ground.

In regard to this, the Defendant: (a) entered into several contracts with the Defendant, a representative director, for DD Construction (hereinafter referred to as DDD Construction) and the Defendant operating EE; and (b) obtained a loan certificate confirming the existence of a claim and a debt relationship of KRW 650 million from BB by aggregating the construction cost that the Defendant had not been paid from DD Construction and the amount that the Defendant had not been refunded, while making a loan to DD Construction, and the Defendant did not comply with the Plaintiff’s claim on the ground that the mortgage of this case was established with the secured claim.

B. As to whether the secured claim of the instant right to collateral security is false claims

First, we examine whether the secured claim of the instant right to collateral security has been distributed to the Defendant in the public auction procedure of the instant case with false claims, without any legal grounds.

1) 살피건대, 갑 제6호증, 을 제1 내지 4호증, 을 제7호증의 1,2의 각 기재, 증인 이BB의 증언에 의하면, 피고는 DDDD건설과 사이에, 2005. 6. 12.경 계약금액 000,000,000원(부가가치세 별도), 준공예정일을 2005. 10. 10.로 한 FFFFF 신축공사에 관한 건설공사 표준계약서와 EEEEE의 운영자로서 2005. 8. 19.경 계약금액 000,000,000원(부가가치세 별도), 준공예정일을 2005. 12. 18.로 한 QQ지방산업단지 0블럭 0노트 소재 공장신축공사의 철골, 판넬, 창호 공사에 관한 표준도급계약서를 각 작성한 사실, 피고가 이BB에게 2005. 9. 16. 0,000만원, 2005. 10. 14. 000만 원을 각 송금한 사실, 피고와 이BB 사이에 이BB이 2006. 1. 10.경 피고로부터 6억 5,000만 원을 차용하였다는 내용이 기재된 차용증(이하 '이 사건 차용증'이라 한다)과 같은 날 이BB이 위 금액을 영수하였다는 내용이 기재된 영수증이 각 작성된 사실을 인정할 수 있다.

2) However, in full view of the following circumstances acknowledged by comprehensively taking account of the evidence mentioned above and the statements set forth in Gap evidence Nos. 5, 8, and 11 and the overall purport of the pleadings, it is reasonable to see that the claims based on the instant loan certificate, which is the secured claim of the right to collateral security

① In the case of the right to collateral security, there must be a legal act establishing the secured claim of the right to collateral security separate from the act of establishing the right to collateral security. The burden of proving whether there was a legal act establishing the secured claim of the right to collateral security at the time of establishment of the right to collateral security lies on the part of claiming the existence of the right (see, e.g., Supreme Court Decision 2010Da107408, Apr. 28, 201). The Defendant submitted a receipt stating that, around August 28, 2016, the instant loan was received by CCB to the regional tax office that demanded the submission of materials related to the secured claim of the right to collateral security of the instant right to collateral security, etc. on the same day as the instant loan certificate, and did not submit relevant documents, such as financial transfer data or payment of interest, and did not submit each construction contract between DD construction.

② 이 사건에 이르러 피고는 DDDD건설과 사이에 수차례 공사도급계약체결에 따른 공사 진행이 있었다고 주장하며 2개의 표준도급계약서를 제출하고 있으나EEEEE를 운영한 피고의 2005년 하반기 매출처별세금계산서 합계표의 기재에 DDDD건설은 존재하지 아니하고, 공급가액의 합계 또한 00,000,000원에 불과하다. 반면 DDDD건설은 QQ지방산업단지 0블럭 0노트 소재 공장신축공사의 원 도급인인 XXXX 주식회사에 세금계산서를 발행하였다.

③ The obligor for the payment of the construction cost upon the conclusion of each of the above contracts for construction works is not BD construction, not BD construction. This BB, as the representative director of DD construction, was operating the above company until early 2006, and thereafter testified that the Z was managing the said company. Since then, BB, which did not manage DD construction, recognized the Defendant’s obligation as its own obligation, and it is difficult to easily understand the circumstances that set up the instant collateral security for the payment of the obligation for the construction cost on April 9, 207 to the instant real estate owned by itself.

④ 이BB이 이전에 양도소득세와 관련하여 관할 세무서에 제출한 DDDD건설과 XXXX 주식회사와의 QQ지방산업단지 5블럭 7노트 소재 공장신축공사 계약서 상의 DDDD건설 대표이사 인장의 인영과 이 사건에서 피고가 제출한 DDDD건설과 피고 사이의 위 공사 하도급 공사계약서의 DDDD건설 대표이사 인장의 인영이 육안으로 보기에도 확연히 다르고, DDDD건설이 원 도급자인 XXXX 주식회사와의 계약체결일인 2006. 1. 9. 이전인 2005. 8. 19.에 피고와 하도급 공사계약을 먼저 체결한 사정 등에 비추어 DDDD건설과 피고 사이에 작성된 계약서가 계약서상의 날짜와 다른 시기에 작성되었을 가능성을 배제하기 어렵다.

⑤ If the Defendant actually performed the above construction work, there is no evidence to acknowledge it, even though there is a material for construction work site, purchase, and payment of labor cost.

④ The public sale procedure of this case was conducted on March 31, 2007, on which this BB failed to pay corporate tax as the secondary taxpayer toCC, and on April 9, 2007, the statutory due date of the above corporate tax was nine (9) days thereafter.

7. B and the Defendant are pro ratas, and the Defendant’s transfer of the funds to B prior to the creation of the instant loan certificate is merely KRW 29 million and there is a big difference in the amount of the instant loan certificate.

8. There is no evidence to acknowledge that the Defendant received any interest or delay damages on the payment of the construction price or loans from DD Construction or EB, and the Defendant did not issue a tax invoice related to the payment of the construction price after receiving the allocation of the allocation amount in accordance with the public sale procedure in this case.

C. As to the claim for restitution of unjust enrichment against the distribution of the instant public auction procedure

Next, we examine whether the Defendant is obligated to return the distribution amount according to the public auction procedure of this case to the Plaintiff as unjust enrichment.

1) The execution of distribution pursuant to the final distribution schedule does not have to confirm the substantive right. In a case where a person who is liable to receive distribution receives a distribution without receiving the distribution, a creditor who has not received the distribution may claim a return of unjust enrichment against the person who received the distribution, regardless of whether he/she raised an objection to the distribution or whether the distribution procedure has become final and conclusive (see, e.g., Supreme Court Decisions 2003Da32681, Apr. 9, 2004; 2008Da19966, Jun. 26, 2008). In addition, if a person who received the distribution in the distribution procedure received the distribution without a right, it shall be deemed that the payment was made without any legal ground, but if the person suffered the distribution was the one who would have received the distribution if the distribution was not erroneous, it shall not be deemed that the distribution was reverted to the debtor who could receive the next order (see, e.g., Supreme Court Decisions 200Da32539, Nov. 27, 2009).

2) In light of the above legal principles, in a case where the instant mortgage on the instant real estate did not exist, if the person subject to distribution in the public sale procedure of the instant case was the Plaintiff, as shown in the distribution calculation statement as seen earlier, and thus, the Defendant acquired KRW 00,000,000 as a national tax creditor, without any legal cause, and thereby, caused the Plaintiff to be unable to receive allocation of the said KRW 00,000,000.

Therefore, as a malicious beneficiary, the Defendant is obligated to pay the Plaintiff the above KRW 00,000,000 with unjust enrichment return, and to pay the Plaintiff statutory interest or delay damages calculated at the rate of 5% per annum prescribed by the Civil Act from January 17, 2012, which is the date of delivery of a copy of the complaint of this case, to October 25, 2016, and 15% per annum prescribed by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.