Any tax obligation which is the inherent obligation of a qualified acceptor may not be distributed in preference to the inheritance obligee.

Tax claims, which are inherent creditors of a qualified acceptor, may not be subject to compulsory execution against the inherited property, by taking the inherited property as the property subject to the liability of the inherent claim, under the condition that the inheritance obligee has not received the satisfaction of

§ 1028. Effect of limited acceptance under the Civil Code

Busan District Court 2015Na49283 Return of Unjust Enrichment

AAAAAA Corporation

Korea

Busan District Court Decision 2014 Ghana184441 Decided October 13, 2015

June 10, 2016

July 22, 2016

1. Of the judgment of the court of first instance, the part against the plaintiff corresponding to the money ordered to pay below shall be revoked.

The defendant shall pay to the plaintiff 3,29,023 won with 5% interest per annum from December 16, 2014 to July 22, 2016, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 3,229,023 won with 5% interest per annum from May 23, 2014 to the delivery date of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

A. The plaintiff filed for a provisional attachment of 30 m2 m3 m3 m3 m3 m3 m3 m3 m4 m4 m3 m4 m2, DB 209 m2 m3 m26 m3 m2, 200 m3 m26 m20 m3 160 m22, 200 m26 m27 m20 m26 m27 m20 m3 m260 m3 m2, 200 m26 m27 m27 m202 m26 m27 m200 m26 m27 m202 m26 m26 m27. 200 m26 m3 m3.

E. On October 24, 2013, the Defendant, among heirs, seized the shares owned by 00M among each of the instant real estate, as a tax claim, such as global income tax on 00M, and requested the issuance of the shares during the above compulsory auction procedure.

F. A court of execution opened a date of distribution on May 23, 2014 in the procedure of compulsory auction by the PPP district court 2013tata 153 XX Real Estate, and distributed KRW 17,759,628 to the Plaintiff in the order of 3,229,023, and 209,651 among the inheritors, who requested the issuance of the tax claim right holder with respect to the shares owned by 00M among the inheritors in the first order of 20,98,651. There was no objection to the said distribution, and thus, the said distribution schedule became final and conclusive as above.

[Reasons for Recognition] Facts without dispute, Gap 1 through 5 evidence (including branch numbers, hereinafter the same shall apply), Eul 1 evidence, the purport of the whole pleadings

2. The plaintiff's assertion

A. According to the effect of prohibition of disposal of provisional seizure, a third party purchaser who is unable to participate in the distribution within the scope of the claim amount shall also include the inheritor who comprehensively taken over the objects of provisional seizure. Therefore, the plaintiff who seized the shares of the deceased among each real estate of this case shall be entitled to prior dividends within the scope of the claim amount of provisional seizure, in preference to the defendant who

B. The inheritor’s inherent creditors who have made a qualified acceptance are superior to the obligee of the inheritee, and the inherited property cannot be subject to compulsory execution with the inherited property as the liability property for the claim. The Plaintiff, the inheritor, the qualified acceptance obligee, should receive dividends in preference to the Defendant, the inheritor, the inheritor

C. Therefore, KRW 3,229,023, which the Defendant received as dividends, should be returned to the Plaintiff who did not receive all of the claims for provisional seizure in the said distribution procedure as unjust enrichment.

3. Determination

A. The inheritance of a debtor on the object of provisional seizure does not constitute an act of disposal prohibited by the debtor, because it is not a act of disposal by the debtor. The inheritance of the inheritor on the shares owned by the deceased of each of the real estate of this case does not constitute an act of disposal

B. However, Article 1028 of the Civil Act provides, “An inheritor may approve inheritance under the condition that he/she shall repay his/her obligation and testamentary gift to the extent of the property that is to be acquired by inheritance.” If an inheritor files a report on a qualified acceptance pursuant to the foregoing provision, the liability of a qualified acceptor for the obligation of the inheritee is limited to inherited property, and as a result, an obligee may not enforce compulsory execution against the inheritor’s inherent property, and may obtain satisfaction of claims only from inherited property, barring any special circumstances. Unless there are circumstances, such as the acquisition of a security right to inherited property, deeming that an inherent obligee of a qualified acceptor is unable to enforce compulsory execution against the inherited property by taking the inherited property as an inherent claim property under the condition that the inheritance obligee is not satisfied with the inherited property, is consistent with the principle of equity or with the purport of the qualified acceptance system. The same applies to the Plaintiff, which is not related to taxes or additional dues imposed on the inherited property itself, i.e., where the inherent obligation of a qualified acceptor is a tax obligation of inheritance obligee (see Supreme Court Decision 2015Da250574, supra).

C. The execution of dividends pursuant to the final and conclusive distribution schedule does not constitute a final determination of substantive rights. Therefore, in cases where a creditor who is liable to receive dividends has received dividends without receiving such dividends, a creditor who failed to receive dividends has the right to claim the return of unjust enrichment against a person who received dividends, even if he/she did not raise an objection to the dividends, regardless of whether he/she did so (see Supreme Court Decision 2010Da90708, Feb. 10, 201).

Therefore, the plaintiff, who was a creditor who was not paid dividends as a creditor entitled to receive dividends, has the right to claim a return of unjust enrichment in respect of the defendant's dividends of KRW 3,229,023.

4. Conclusion

Therefore, the defendant is obligated to refund to the plaintiff the amount of 3,229,023 won and the damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the date following the date of service of the complaint in this case until July 22, 2016, which is the date of the judgment that is appropriate for the defendant to dispute about the existence of the obligation or the scope of the obligation to perform, and the damages for delay calculated at the rate of 20% per annum as stipulated in the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the following day to the date of complete payment (the plaintiff claims that the starting point of calculating damages for delay with respect to unjust enrichment is the date on which the defendant received dividends). However, the debtor is liable for delay from the time of receiving the claim for performance, and there is no evidence to acknowledge the fact that the plaintiff sought the return of unjust enrichment prior to the filing of the complaint in this case.

Therefore, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as without any justifiable reason. Since the judgment of the court of first instance is unfair with different conclusions, the part against the plaintiff as to the money ordered to be paid under Paragraph (1) of the order of the court of first instance which accepted the plaintiff's appeal and revoked the part against the plaintiff as to the money ordered to be paid under Paragraph (1) of the order of the court of first instance, and