In case of continuous set-off of the obligation, whether the obligation to be attached by the notice of attachment should be specified by the notice of attachment.

If a claim to be seized is not specified by a notice of attachment, it shall be null and void because it falls under a case where the defect is grave and obvious.

Civil Procedure Act

2016 paper 73002 Collection

India AA

State AA

on October 24, 2016

on 14, 2016

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 15% interest per annum from the next day of the delivery of a copy of AAA and its complaint to the day of complete payment.

1. Basic facts

A. AAAA claim against the Plaintiff’s taxation claim against AAA, a corporation, is an aggregate of 19 items, including value-added tax, corporate tax, wage and salary tax, and retirement income tax, as of July 5, 2016.

B. Notice of attachment against the plaintiff's defendant

1) The head of a tax office under the Plaintiff’s AA provides the Defendant with a claim for tax against the Plaintiff’s AA as a claim to enforce the Plaintiff’s tax claim, and “amount until the Defendant’s delinquent amount (including increased additional charges and expenses for disposition on default added later) including the amount to be paid in the present and future among the transaction amounts unpaid to the AAAA, a delinquent taxpayer, is a seized claim, and notified the Defendant of the attachment of the claim that the delinquent amount related to the attachment was paid by April 29, 2016, with the date of attachment as of April 20, 2016. The above notification reached the Defendant on April 27, 2016.

2) The head of a tax office under the Plaintiff’s AA provides the Defendant with a claim for tax against the Plaintiff’s AA as a claim to enforce the Plaintiff’s tax claim, and “amount until the Defendant’s delinquent amount (including increased additional charges and expenses for disposition on default added later) including the amount to be paid in the present and future among the transaction amounts payable to the AAAA, a delinquent taxpayer, is subject to attachment claim, and notified the Defendant of the attachment of the amount of delinquent tax related to the attachment by November 24, 2016, with the date of attachment as of November 21, 2016. The above notification reached the Defendant on November 23, 2016.

2. Determination on the cause of the claim

A. The parties' assertion

1) The plaintiff's assertion

The Plaintiff has a national tax claim against AAA, and AAA holds a sales claim against the Defendant in excess of KRW AA. The Plaintiff seized the sales claim against the Defendant on February 12, 2015 pursuant to Article 24 of the National Tax Collection Act, and additionally seized each of the aforementioned seizure on April 20, 2016 and November 21, 2016. The notice of each of the above seizure was delivered to the Defendant. The head of the tax office, upon receipt of the notice of the seizure, may claim the performance of the obligation against the third obligor on behalf of the obligee, who is the delinquent taxpayer, to the extent of the delinquent amount at the time of the notice of the seizure. As such, the head of the tax office, on behalf of the Defendant, seek payment of the AAAAA and the delay damages therefrom from the third obligor.

2) The defendant's assertion

A) unspecified claims of seized claims

The notification of each attachment by the plaintiff is invalid because the seized claim is not specified.

B. Default and illegality of the notification of attachment

The defendant did not receive the notification of attachment as of February 12, 2015, and the notification of attachment as of February 12, 2015 is unlawful because the debtor's address and business registration number are not indicated in the debtor's entry column.

C) Extinguishment due to set-off of the seized claim;

AA’s claims against the Defendant, a seized claim, were extinguished by offsetting the Defendant’s claims for return against the payment of liabilities and personnel expenses of AA, and subsidiary material expenses.

B. Determination as to whether a seized claim is specified

1) Relevant legal principles

A disposition on default under the National Tax Collection Act provides that a tax claim shall be secured by prohibiting a debtor from fulfilling his/her obligation against a delinquent taxpayer with respect to a claim attached against the debtor. Thus, if a claim to be attached is not specified by a notice of attachment, it shall be null and void because the defect is grave and obvious (see Supreme Court Decision 98Da28008, Jun. 11, 199).

Inasmuch as an obligee does not specify the subject and scope of the claims to be seized in the seizure order due to the absence of specification in the subject and scope of the claims to be seized, the attachment order shall not take effect. This legal doctrine likewise applies when an obligor holds several claims against a third party obligor, and when an obligee files an application for attachment, etc. against all of his/her claims, the obligee should clearly specify the purport of the application within the scope of one claim: Provided, That in such cases, where there are special circumstances, such as where the sum of several claims subject to attachment is smaller than the sum of the claims subject to attachment, or where multiple claims were created upon one contract or a third obligor agreed to perform his/her obligations, it may be deemed that the attachment, etc. is determined. Meanwhile, since the specific scope of claims subject to attachment is determined in accordance with the interpretation of the phrase “an indication of claims to be seized, etc.”, it is reasonable to view that the obligor is not subject to attachment 2 as being subject to the imposition of an ordinary obligation under Article 32 of the Criminal Procedure Act and thus, should not be objectively construed based on the phrase and text of the obligation to protect the obligor.

2) Whether the attachment notification of February 12, 2015 was specified as seized claims

According to Gap evidence No. 2-1, the plaintiff's notice of attachment on February 12, 2015, which was sent to the defendant by the head of AA-A-affiliated Tax Office, stated only "amount until it reaches the national tax amount (including increased additional dues and expenses for disposition on default added thereto) among the claims (including claims to be incurred in the future) held by AA-A-debtor against the defendant who is the garnishee. In light of the aforementioned legal principles, in light of the above facts of recognition, the indication of seized claims does not include all the kinds of claims, so it is not specified as to which claims are seized, and the attachment as of February 12, 2015 is not effective regardless of whether the claims to be seized are delivered to the defendant because it is not specified.

3) Whether each attachment notification of April 20, 2016 was specified as seized claims of April 21, 2016 and November 21, 2016

In each attachment notification dated April 20, 2016 and November 21, 2016, each of the facts that "the defendant stated that "the amount of seized bonds" was "amount until the delinquent amount (including increased additional charges and expenses for disposition on default added later) including the amount to be paid at present and in the future to AAAA, a delinquent taxpayer of national taxes, shall be as mentioned above. In full view of the purport of arguments in the items of subparagraphs 3, 9, and 1 and 2 above, AAA has been supplied with raw materials by the defendant since 2014 and supplied them to the defendant. In the process of processing and producing the products, the defendant was liable to AAAA due to the lack of obligation to the defendant. In light of the aforementioned legal principles as seen earlier, it is difficult to conclude that each of the above claims was seized by 161,201.

4) Sub-determination

Therefore, the plaintiff's assertion, which is premised on the validity of each seizure as of February 12, 2015, April 20, 2016, and November 21, 2016, is without merit.

3. Conclusion

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