Right of Indemnification as Subrogation Claim

Since the existence of the right to indemnity of this case against the defendant of AA, who is claimed by the plaintiff as subrogated, cannot be recognized, the plaintiff's claim for subrogation of AA on the premise that the above claim of AA exists, is without merit.

Article 35 (Principle of National Tax Priority)

2017 Gohap 56650 Claims

Korea

Co., Ltd. 00

2018.05.02

2016.07.11

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant shall pay to the plaintiff 2,30,000,000 won with 5% interest per annum from November 10, 2016 to the delivery date of a copy of the complaint of this case, and 10% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. On October 30, 2017, Nonparty A’s taxation claim against Nonparty A is liable to pay national taxes of KRW 623,419,480, as of October 30, 2017, including global income tax of KRW 623,535,170, total of KRW 17, total of KRW 2,386,351,180, total of KRW 17.

(b) AA’s physical guarantee and ex post facto progress against the Defendant;

1) AA is a representative director and a major shareholder of the defendant, and owns 5/6 shares of 00 -00 -00 -00 -00 -00 -00 -200 -200 - 12 - (hereinafter "the real estate of this case").

2) On March 20, 2014, AA completed the registration of creation of a mortgage on the instant real property by the debtor, the defendant, the maximum debt amount of 2,760,000,000 won, and the establishment of a mortgage on the right to collateral security (hereinafter referred to as the “mortgage”).

3) On March 17, 2016, the instant real estate was sold on September 29, 2016 at the auction procedure commenced by SS Bank upon filing an application for a voluntary auction on the instant real estate with the Seoul Central District Court (Seoul Central District Court Decision 2016Ma2964, Sept. 29, 2016). From the sale price of the instant real estate, SS Bank was apportioned KRW 2,760,00,000, which is the maximum debt amount of the instant real estate.

C. AA’s insolvent, while AA owns 208,343 shares of the Defendant as the sole active property. The Defendant’s shares were assessed as “0 shares.”

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 6, purport of the whole pleadings

2. Determination

A. The plaintiff's assertion

AA had the right to indemnity (hereinafter referred to as the "right to indemnity of this case") equivalent to 5/60,00,000 won (=2,760,000,000,000 won x 5/6) out of the 2,760,000,000 won repaid by the SS Bank in accordance with Articles 370 and 341 of the Civil Act, since a person who has pledged his/her property to secure another's property to secure another's property to the SS Bank's obligation, lost the ownership of the instant real estate due to the execution of the instant mortgage of this case. In order to preserve a tax claim against AA, the Plaintiff sought payment of money from the Defendant under the right to indemnity of this case by subrogation of AA who currently has no financial ability.

B. Determination

(i)the existence of preserved claims;

The fact that the Plaintiff holds a tax claim of KRW 2,386,351,180 against AA, and the fact that AA is insolvent is as seen earlier. Therefore, the Plaintiff may exercise the right to the debtor of AA in subrogation of AA, the debtor.

2) Whether the right to indemnity of this case, which is a subrogation claim, exists

A) Occurrence of indemnity

According to the above facts, AA has lost ownership of the instant real estate due to the execution of the right to collateral security on the instant real estate as a surety to secure the Defendant’s obligation to the SS Bank, and barring any special circumstance, AA shall have the right to demand reimbursement against the Defendant, and therefore, the Defendant is liable to pay the Plaintiff, who subrogated to AA, KRW 2,300,000,000, and damages for delay.

B) As the Defendant waivers of the right to indemnity against the Defendant, the Defendant’s defense against the waiver of the right to indemnity against the Defendant is unable to respond to the Plaintiff’s claim. According to the overall purport of the statement and pleadings as to the waiver of the right to indemnity against the Defendant, the Defendant need to seek cooperation from the Defendant’s creditor financial institutions such as the Bank (main creditor bank), D Bank, FF Corporation, and GG Fund, which is the Defendant’s creditor financial institution. However, the agreement was concluded on March 31, 2016 with the autonomous creditor bank, which is the consultative body of the above creditor financial institutions, the Defendant, and the Defendant’s major shareholder, which is the Defendant, for the waiver of the right to indemnity against the Defendant. Accordingly, it is reasonable to view that the Defendant’s waiver of the right to indemnity against the Defendant, which is a party to the instant agreement, was a waiver of the right to indemnity against the Defendant’s obligation under the agreement, which is an execution of the right to indemnity between the Defendant and the creditor bank on the same day.

C) Sub-determination

Ultimately, the defendant's defense is reasonable, and the existence of the right to reimbursement of this case against the defendant of the AA, claiming that the plaintiff is acting in subrogation, is not recognized. Thus, the plaintiff's claim seeking reimbursement by subrogation of the AA on the premise that the above claim of the AA exists.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.