In a lawsuit for collection, the existence of a claim subject to collection is a requisite fact and the burden of proof is proved to the plaintiff.

Upon the confirmation of this case, the defendant bears the burden of proof for the completion of construction exceeding the construction cost of KRW 50 million, which is recognized by the defendant, and there is no evidence to prove that the exceeding part is not acceptable.

Article 41 of the National Tax Collection Act

2017 Single 91987 Collections

Korea

Co., Ltd.

September 7, 2018

October 25, 2018

1. The defendant shall pay to the plaintiff 50,000,000 won with 6% per annum from November 23, 2017 to October 5, 2018, and 15% per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 30% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Cheong-gu Office

The defendant shall pay to the plaintiff 70,700,000 won with 15% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

1. Facts of recognition;

A. On April 4, 2016, 2016, ○○ Construction Co., Ltd. (hereinafter referred to as “○○○ Construction Co., Ltd.”) entered into a contract with the Defendant on the part of the contractor ○○○○ Construction Co., Ltd. (hereinafter referred to as “instant contract”). The contractor entered into a contract with the Defendant on the part of the contractor ○○○○ Construction Co., Ltd. (including value-added tax) on the construction cost of the new construction of a factory located in ○○○○○-○○○-○○○ Co., Ltd. (hereinafter referred to as “instant contract”).

B. From May 2, 2016 to June 7, 2016, the Defendant paid 80 million won in total to ○○○○○○○ case among the construction cost under the instant contract.

C. The Plaintiff-affiliated * The director of the tax office collected KRW 610,697,190 of the national tax in arrears at the time of ○○○ Ho case, pursuant to Article 41(1) and (2) of the National Tax Collection Act, on August 31, 2017, the amount of the construction price claim against the Defendant was seized until it was in arrears, and on September 4, 2017, notified the Defendant of the attachment of the said claim (hereinafter “instant attachment notification”).

D.* The director of the tax office urged the Defendant to pay the above-mentioned claim for the construction price attached on September 7, 2017 and September 22, 2017.

E. At the time of filing the instant lawsuit, ○○○ case did not pay a total of KRW 611,539,640,000, including corporate tax and value-added tax.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 7, purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

As the Plaintiff notified of the instant attachment in accordance with the procedure for disposition on default under the National Tax Collection Act, the Defendant is obligated to pay the Plaintiff the remaining construction cost of KRW 70,77 million based on the instant contract (i.e., the agreed construction cost of KRW 150,700,000 before the instant attachment notice - KRW 80,000,000).

B. Defendant

Although the Defendant concluded the instant contract with ○○○ case and paid 80 million won as advance payment, the construction work did not proceed at all as a road problem.

3. Determination

A. Relevant legal principles

In case where a claim is seized by the head of a tax office in accordance with the procedure for disposition on default under the National Tax Collection Act, the obligor of the seized claim cannot repay the obligation to the obligee. Meanwhile, if the head of a tax office subrogated the obligee by notifying the obligor of the attachment pursuant to Article 41(2) of the National Tax Collection Act, the obligee of the seized claim shall be deemed to have acquired the right to collect the claim. Thus, if the obligor of the attached claim becomes due, the obligor of the attached claim shall be liable to perform it to the head of the tax office, which is the subrogated obligee (see Supreme Court Decision 86Meu

Meanwhile, in a lawsuit for collection, the existence of a claim for collection is a requisite fact and the burden of proof is borne by the Plaintiff (see, e.g., Supreme Court Decision 2005Da4717175, Nov. 11, 2007). Since the contractor seeking payment of remuneration for the completion of work in a contract for work is the contractor seeking payment of remuneration for the result of work, even if the contractor did not claim that there exists a part of work in the contract for work, the contractor seeking the payment of remuneration for the completion of the work must prove and prove the completion of the work (see, e.g., Supreme Court Decision 94Da26684, Nov. 22, 1994).

B. Determination

1) The cited part

In light of the above legal principles, in full view of the above facts, the above facts, the evidence as mentioned above, and the following circumstances acknowledged by Gap evidence as stated in Gap evidence No. 8 through 11, it is reasonable to deem that ○○○ case holds against the defendant the remaining claim for construction price equivalent to KRW 50 million according to the contract of this case. Thus, the defendant is liable to pay to the plaintiff who acquired the right to collect the claim for the remaining construction price by the attachment notification of this case pursuant to Article 41(2) of the National Tax Collection Act.

○ Tax invoice is not a disposal document, but where an entrepreneur supplies goods or services pursuant to the Value-Added Tax Act (Article 16 of the Value-Added Tax Act), a tax invoice is issued to a person who receives the supply (Article 16 of the Value-Added Tax Act), and a tax invoice that is different from the fact is prohibited from being deducted from the input tax amount. (Article 17(2) of the Value-Added Tax Act), ○○ case issued a tax invoice for construction cost of KRW 100 million (including value-added tax) on May 4, 2016 with the person who receives the supply of the Defendant as the recipient, and the Defendant filed a return for

around May 2016 to June 2016, the Defendant paid KRW 80,000,000,000 among the construction cost under the instant contract to ○○○ case, and even until around two years have passed thereafter, the Defendant requested the return of the said construction cost to ○○○ case.

○ As of April 2, 2018, the Defendant prepared a written confirmation to the effect that “The Defendant and ○○○○ case confirm the fact that the remaining construction cost was reduced to KRW 50 million by taking into account the non-construction and defective parts thereof” (hereinafter referred to as “instant written confirmation”).

In light of the above circumstances, the Defendant’s assertion that construction work under the instant contract did not run entirely is difficult to believe it, and there is a part of the flag that completed ○○○○ Construction. Moreover, in addition to the 80 million won already paid for the said part of the flag, an additional claim for construction work amounting to KRW 50 million is likely to have occurred.

2) The dismissed part

Meanwhile, the remainder of KRW 20.7 million except the above cited part (i.e., the claimed amount of KRW 70.7 million - the quoted amount of KRW 50 million) does not have any evidence to prove the complete completion of the construction work based on the instant contract, and therefore, there is no reason to further examine it.

The plaintiff argues that the confirmation document of this case was agreed to reduce the remaining construction cost of KRW 50 million in the original 70 million, and that unless there is no proof by the defendant as to the grounds for reduction, it cannot be asserted against the plaintiff on the ground of the above agreement after the attachment notification of this case. The confirmation document of this case is 150 million won, and the contract price of this case is 150 million won, so if the contract of this case is excluded from the term payment of KRW 80 million, the remaining amount is 70 million, but the contract between the contractor and the contractor is 50 million, considering the non-construction portion, it is clearly stated that the contract of this case is 'unexecution'. As such, the plaintiff bears the burden of proof as to the completion of construction work exceeding KRW 50 million which the defendant recognized through the confirmation document of this case. Therefore, there is no evidence supporting this part of the plaintiff's claim.

C. Sub-decision

From November 23, 2017, the day following the delivery date of a copy of the complaint of this case to the Plaintiff, the Defendant is obligated to pay damages for delay calculated by the rate of 6% per annum prescribed by the Commercial Act from November 23, 2017 to October 5, 2018, which is the sentencing date of this case, and 15% per annum prescribed by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment.

4. Conclusion

Part of the plaintiff's claim is accepted.