Whether it falls under any bankruptcy claim and whether compulsory execution against the property belonging to the bankruptcy foundation based on estate claims is permitted.

It is reasonable to deem that the corporate tax claim of this case constitutes a estate claim not a bankruptcy claim as a tax claim due to the cause before the declaration of bankruptcy. Moreover, it is not permissible for the Defendant to receive the dividend of this case from the above claim after seizing the claim that the Plaintiff possessed with respect to the Korea Asset Management Corporation based on the Plaintiff’s delinquent amount among the corporate tax of this case.

2012 Gohap54082 Unlawful gains

AA Savings Bank, a bankrupt corporation

Korea

August 19, 2013

September 5, 2013

1. The defendant shall pay to the plaintiff OO members and the amount equivalent to 5% per annum from January 31, 2013 to September 5, 2013, and 20% per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 3/5 are assessed against the Plaintiff, and the remainder are assessed against the Defendant.

4. Paragraph 1 can be provisionally executed.

Cheong-gu Office

As to the Plaintiff, the Defendant shall pay 5% per annum to the Plaintiff from October 20, 2012 to the service date of a duplicate of the complaint of this case, and 20% per annum to the service date of a duplicate of the complaint of this case, from January 21, 2013 to the service date of a duplicate of the application for modification of the claim of this case and the cause of the claim of this case, 5% per annum, and 20% per annum from the following day to the date of complete payment.

1. Basic facts

A. On February 23, 2012, AA Savings Bank Co., Ltd. (hereinafter “A Savings Bank”) was declared bankrupt on February 23, 2012 by Seoul Central District Court No. 2012Hahap2, and the Plaintiff is a person appointed as a trustee in bankruptcy of AA Savings Bank.

B. Around March 2012, the head of an OO under the Defendant-affiliated Tax Office decided to revise corporate tax on the corporate income omitted from July 1, 2007 to June 30, 2008 of the AA Savings Bank, and around April 2, 2012, notified the Plaintiff of the payment of the corporate tax on the corporate income omitted as above by April 30, 2012.

C. After that, on October 19, 2012, the director of the listed tax office notified that the refund of this case should be appropriated for the corporate tax claim of this case, as the OOO (hereinafter “the refund of this case”) occurred.

D. In addition, on January 23, 2013, among the sales price of OO-dong 835-18 land that the Plaintiff had against the Korea Asset Management Corporation on the basis of the Plaintiff’s delinquent amount of the corporate tax in the instant case, the amount until the delinquent amount was paid out of the sales price of O-dong 835-18 land that the Plaintiff had against the Korea Asset Management Corporation, and on January 30, 2013, the amount of OO-ship (hereinafter “the dividend of this case”) was distributed out of the sales price of this case.

E. The Debtor Rehabilitation and Bankruptcy Act (hereinafter “The Debtor Rehabilitation Act”) and the provisions of the Framework Act on National Taxes relating to the instant case are as follows:

[Rehabilitation]

When any bankruptcy creditor bears obligations for the debtor at the time that the debtor is declared bankrupt, such obligations may be offset against him/her without resorting to bankruptcy procedures.

In cases falling under any of the following subparagraphs, offset shall not be allowed:

1. Where any bankruptcy creditor bears obligations to the bankrupt estate after he is declared bankrupt;

Article 46 (Subordinate Bankruptcy Claims)

(1) Claims falling under the following subparagraphs shall be junior bankruptcy claims higher than other bankruptcy claims:

2. The amount of damages and penalty resulting from nonperformance after bankruptcy is declared;

Article 473 (Scope of Estate Claims) Any of the following claims shall be deemed estate claims:

2. A claim that is collectable pursuant to the National Tax Collection Act or the Framework Act on Local Taxes (including a claim that is collectable according to the example of collecting the national tax and that takes precedence over the collection ranking in general bankruptcy claims, and subordinate bankruptcy claims provided for in the provisions of Article 46 are excluded): Provided, That claims on grounds arising after bankruptcy is declared shall be limited to those that accrue to the bankruptcy foundation;

Article 475 (Repayment of Estate Claims) The estate claims shall be met at any time without resorting to the bankruptcy procedures. The estate claims provided for in Article 476 (Preferential Repayments of Claims) shall be satisfied in preference to the bankruptcy claims.

[Framework Act on National Taxes]

Article 21 (Establishment Date of Liability for Tax Payment)

(1) A liability to pay national taxes shall accrue at the following time:

1. Income tax and corporate tax: when the taxable period expires: Provided, That in cases of corporate tax on liquidation income, when the corporation dissolves;

11. Additional tax: When a liability to pay a national tax to be added arises.

(2) Notwithstanding paragraph (1), the obligation to pay the following national taxes shall accrue at the following time:

1. Withholding income or corporate tax: When the income or income amount is paid;

Article 51 (Appropriation and Refund of National Tax Refund Payments)

(1) If a taxpayer erroneously pays or overpaid national taxes, surcharges, or expenses for disposition on default, or if there is any amount of tax to be refunded under the tax-related Acts (where any amount of tax to be deducted from the amount of tax refundable under the tax-related Acts exists, referring to the remaining amount after deduction), the head of a tax office shall immediately determine the amount paid erroneously, and the amount paid or the amount of tax to be refunded as a refund of national tax. In such cases,

(2) The head of a tax office shall appropriate the amount determined by the national tax refund for the following national taxes, additional dues, or disposition fee for arrears, as prescribed by Presidential Decree: Provided, That the appropriation for the national taxes under subparagraphs 1 (excluding cases falling under any ground for collection before the payment period under Article 14 of the National Tax Collection Act) and 3 shall be made

1. National taxes paid by a duty payment notice;

2. National taxes, additional dues and expenses for disposition on default (including national taxes, additional dues and expenses for disposition on default in another tax office);

3. National taxes voluntarily paid under tax-related Acts;

(3) Where any appropriation under paragraph (2) 2 is made, the delinquent national tax, additional dues or disposition fee for arrears and the national tax refund shall be deemed to have been extinguished on an equal amount retroactively at the latest out of the statutory due date of payment of the national tax in arrears and the date of occurrence of the national

[Ground of Recognition] The non-contentious facts, Gap evidence l through 5, and Eul evidence 1, and the purport of the whole pleadings

2. The plaintiff's assertion

A. The corporate tax claim of this case was corrected by the head of the OO tax office on the ground that the corporate tax was excessively appropriated as depreciation costs for corporate income from July 1, 2007 to June 30, 2008 in the taxable period of AA Savings Bank, and was notified of the payment of corporate tax around April 2, 2012. This constitutes a bond established after February 23, 2012, which is the date the AA Savings Bank was declared bankrupt, and constitutes a bankruptcy claim. However, the Defendant’s obligation to refund the refund of this case constitutes a debt owed to the Plaintiff who is the bankrupt estate after the bankruptcy is declared, but the OO head of the OO appropriated the refund of this case for the corporate tax claim of this case. This is null and void as it is against Article 422 subparag. 1 of the Debtor Rehabilitation Act, and the Defendant and the Plaintiff must return the refund of this case to the Plaintiff with unjust enrichment.

B. In addition, it is invalid that the Defendant seized the Plaintiff’s claim based on the instant corporate tax claim, which is a bankruptcy claim without resorting to bankruptcy procedure, and received dividends therefrom, and the Defendant also return the instant dividends to the Plaintiff as unjust enrichment.

3. Determination

A. Whether the corporate tax claim of this case constitutes bankruptcy claim

1) According to the provisions of Article 473 subparagraph 2 of the Debtor Rehabilitation and Bankruptcy Act, tax claims that may be collected pursuant to the National Tax Collection Act are not related to the bankrupt estate, but can be recognized as estate claims other than this bankruptcy claims, and the issue of whether a tax claim due to the cause before the declaration of bankruptcy is "tax claims due to the cause before the declaration of bankruptcy" shall be determined on the basis of whether the taxation requirements prescribed by the Act have been satisfied before the declaration of bankruptcy (see, e.g., Supreme Court Decision 2004Da71904, Jun. 9, 2005) and Article 21 (1) of the Framework Act on National Taxes are when the taxable period expires (No. 1).

2) However, according to the above facts, it can be recognized that the corporate tax claim of this case is a claim arising from the correction and imposition of corporate tax on the corporate income omitted between July 1, 2007 and June 30, 2008 by the AA Savings Bank. The corporate tax claim of this case is established on June 30, 2008, which falls under the last day of the above taxable period pursuant to Article 21 of the Framework Act on National Taxes, and it is reasonable to view that the above tax liability was declared bankrupt against the AA Savings Bank on February 23, 2012 after June 30, 208, which is the date on which the above tax liability was established, as seen earlier. Accordingly, it is reasonable to view that the corporate tax claim of this case constitutes a estate claim not a bankruptcy claim as a "tax claim arising from the grounds before the declaration of bankruptcy".

3) Therefore, the Plaintiff’s assertion that the instant corporate tax claim is a bankruptcy claim is without merit without further review.

B. Whether the Defendant’s receipt of the instant dividend constitutes unjust enrichment

1) The bankruptcy procedure is a comprehensive compulsory execution procedure against the bankrupt and the separate compulsory execution procedure is not, in principle, necessary. Unless there are special provisions allowing compulsory execution under the Debtor Rehabilitation Act, or there are special circumstances to permit compulsory execution under the interpretation of the Debtor Rehabilitation Act, separate compulsory execution against the property belonging to the bankrupt foundation is not allowed, and this applies to compulsory execution based on the estate claim (see Supreme Court Order 2006Ma1277, Jul. 12, 2007), and it is the same as in the case of compulsory execution based on the estate claim (see Supreme Court Order 2006Ma1277, Jul. 12, 2007). If the defendant seized the claims against the Korea Asset Management Corporation based on the plaintiff's delinquent amount of the corporate tax

2) Therefore, the Defendant’s holding of the instant dividends between the Defendant’s receipt of the Plaintiff’s claim against the Korea Asset Management Corporation in the course of the disposition on default falls under unjust enrichment because there is no legal ground as to the relationship with the Plaintiff, who is the right holder of the said claim. Therefore, the Defendant is obligated to pay to the Plaintiff 20% interest per annum as prescribed by the Civil Act from January 31, 2013, the following day following the date of the instant judgment, which is deemed reasonable for the Defendant to dispute the existence or scope of the obligation to perform, from January 31, 2013 to September 5, 2013, and from September 5, 2013, the date of the instant judgment, which is the date of the pronouncement of the said judgment,

4. Conclusion

If so, the plaintiff's claim is reasonable within the above scope of recognition, and the other claims are dismissed as there is no reasonable ground.