Whether subordinate creditor can claim the return of unjust enrichment due to the illegal disposition imposing gift tax

Since receiving a preferential dividend of the auction proceeds due to the imposition of illegal gift tax falls under unjust gains, subordinate creditors who could have been distributed if they had not been subject to the imposition of gift tax can claim the return of unjust gains.

The contents of the decision shall be the same as attached.

1. The defendant shall pay to the plaintiff 646,38,245 won with 5% interest per annum from November 4, 2003 to January 15, 2009 and 20% interest per annum from the next day to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. On June 22, 1994, ○○ Lease Co., Ltd. (hereinafter referred to as “○○○ Lease”) entered into a lease agreement on one set of parking spaces (1.8 billion won) on the multi-story parking machines (1.8 billion won) installed on the ○○○-dong ○○○-dong 342.8 square meters (hereinafter referred to as “instant land”) under the joint and several surety of ○○○○○-dong ○○○-dong 342.8 square meters (hereinafter referred to as “instant land”). On the same day, the instant land and the instant land, ○○-dong ○○-282, and ○-326 land, 2,178,000,000 (hereinafter referred to as “instant collateral security”).

B. On January 24, 1997, ○○ Lease notified the above ○○○○○○ on the ground of non-performance of the installation obligation of the ○○○○○○○ Building, etc., and then filed a lawsuit (Seoul District Court 98 Gohap5017) seeking damages for the termination of the lease contract against ○○○○○○○○○, etc., and on February 11, 1999, ○○○○○○ Lease jointly and severally received 2,620,928,105 won against ○○○○○○ Lease, and 2,264,39,469 won among them, 197, 19% per annum from 199 to 2,00,000 won per annum, 25% per annum from the next day to 11, 1999, 3,000 won per annum○○○○○○○○○○○○○-1,569.

C. On January 15, 1999, the Plaintiff acquired the secured debt of the instant right to collateral security from ○○ Lease. On February 8, 1999, the Plaintiff completed an additional registration of the transfer of collateral security on the ground of transfer of contract on the said right to collateral security.

D. During the period from October 26, 1997 to March 24, 1999, several compulsory auction and voluntary auction procedures were initiated for part of each of the above land or building of this case (the plaintiff also filed an application for compulsory auction and compulsory auction against the building of this case as Seoul District Court Decision 9Hu18368) and the auction procedure was initiated for all of the above land and building (hereinafter "the auction procedure of this case").

E. On July 2, 1999, the director of the Namcheon District Tax Office applied the provision on deemed donation under the main sentence of Article 32-2(1) of the former Inheritance Tax Act (amended by Act No. 4805 of Dec. 22, 1994), on the ground that the ○○ day held title in the instant land to the ○○ Government for the purpose of tax avoidance, to impose gift tax amounting to KRW 850,629,610.

F. On the date of distribution of the auction procedure of this case on March 21, 2002, the amount to be actually distributed after deducting KRW 26,778,05,650,738, which is the amount to be distributed, KRW 2,528,872,68,688, and KRW 701,777,353, and KRW 21,236,730, and KRW 104,312,180, and KRW 650,00, KRW 650, KRW 100,000, KRW 100,000, KRW 738, and KRW 206,00, KRW 479,749, and KRW 479,797, and KRW 475,797, which is the right to distribute to the plaintiff who is the creditor.

G. On November 4, 2003, the Board of Audit and Inspection filed a request for a review to revoke the disposition imposing gift tax, and the Board of Audit and Inspection rendered a decision to revoke the disposition imposing gift tax on the ground that the ○○○○○ was a case where the registration of ownership transfer was made by lending the name of a third party without any tax avoidance purpose and it cannot be deemed as a case where the registration was made by lending the name of a third party without any tax avoidance purpose. The director of the competent tax office

H. The Plaintiff, Lee ○, ○○ Mutual Aid Co., Ltd., and ○○ Construction Co., Ltd., following the revocation of a disposition imposing gift tax, were served on the Defendant, who is a third party obligor, upon receipt of an order of seizure and collection of claims or a decision of provisional seizure of claims.

I. Accordingly, on September 6, 2004, the Defendant (Seoul High Court) deposited KRW 794,507,841 in total in the dividend payment procedure of this case as the Seoul Central District Court deposited KRW 794,507,841 (hereinafter “the deposit of this case”) on the ground that: (a) whether the refund amount following the cancellation of the disposition imposing the gift tax on September 6, 2004 should be paid to junior creditors of the auction procedure of this case; or (b) the person holding the above collection order, and the person holding the seizure and provisional seizure should not be aware of whether the refund amount should be paid to the junior creditors of the auction of this case; and (c)

(j) Interested parties with respect to the instant land, ○○○-dong and ○○-8 and 2 land, and the instant building (hereinafter referred to as “each of the instant real property”), are as listed below (in the following table, interested parties with respect to the instant land and the instant land ○○-8 and 2 land, shall be indicated only by interested parties who are possible to distribute dividends, taking into account the amount of money to be actually distributed to each of the instant real property).

[Reasons for Recognition] Facts without dispute, entry of Gap evidence Nos. 1 through 5 and 8 (including each number), the purport of the whole pleadings

2. The assertion and judgment

A. Determination on the cause of the claim

(1) Summary of the Plaintiff’s assertion

If the Defendant (Seoulcheon Tax Office) did not impose any illegal gift tax on the instant land, at least KRW 646,388,245 out of the amount of KRW 744,58,376 that was distributed to the Defendant at least 744,589,376, which was distributed in the instant auction procedure, was distributed to the Plaintiff as the first mortgagee of the instant land and the provisional attachment authority for the instant building. As such, the Defendant, as a return of unjust enrichment, is obligated to pay the Plaintiff the amount of KRW 646,38,245 and delay damages therefor.

(2) Determination

(A) According to the above facts, the imposition disposition of gift tax, which caused dividends to the director of the Namcheon Tax Office, was revoked, and the defendant (Seoulcheon Tax Office), received dividends of KRW 744,589,376 without any legal ground, regardless of the absence of a title to receive dividends in the auction procedure of this case. Accordingly, the creditors who could have received dividends in the above auction procedure would have suffered losses equivalent to the amount that could have received dividends if they did not receive dividends to the director of the Namcheon Tax Office. The execution of dividends in accordance with the finalized distribution schedule does not have become final and conclusive rights under the substantive law. Thus, in cases where a creditor who could not receive dividends receives dividends without receiving dividends receives dividends, the creditors who did not receive dividends should have the right to claim the return of unjust enrichment against the person who received dividends even if they did not raise objections to the dividends (see, e.g., Supreme Court Decisions 2006Da49130, Mar. 29, 207; 2008Da379798, Apr. 19, 2007, 2008).

(B) The actual amount of dividends to each real estate of this case

In a case where several sites and buildings are sold collectively, as in the case of individual auction, the right holder to the site shall receive dividends from the proceeds from the sale of the building. Accordingly, in a case where the site and buildings are sold collectively, if creditors and bonds entitled to dividends from the proceeds from the sale of each real estate are different, a so-called individual dividend foundation shall be established for each of the proceeds from the sale of each real estate, and then a distribution schedule shall be established according to each of the proceeds. Even if a distribution schedule for the site and buildings was prepared as one, it was made up as one of the total sum of the creditors of the distribution schedule for the proceeds from the sale of the site and the amount of dividends for the proceeds from the sale of the building. As such, the amount of appraisal conducted at the auction procedure of this case shall be 1,096,960,960,000, 000 ○○-82, 000, 2708, 2781, 286, 2786, 286, and 486.

(C) Whether the Plaintiff received dividends from the sale price of the instant land

Under the following circumstances, Gap evidence Nos. 1-3 and 8-3, which are acknowledged by the purport of the entire statements and arguments, (i) 2,528,872,68 won of the total amount actually distributed during the auction procedure of this case, and 701,777,353 won, which is the actual amount to be distributed to the plaintiff in the auction procedure of this case, are almost the same amount; (ii) the plaintiff is the one who is the one who is the one who is the one who is the one who is the one who is the provisional attachment owner of the building of this case at the same time; and (iii) the plaintiff is the one who is the one who is the one who is the one who is the one who is the one who is the one who is the one who is the one who is the provisional attachment owner of this case; and (iv) the plaintiff is the one who is the one who is the one who is the one who is the one who is the one who is the one who is the one who is the one who is the one who is the other the one of the other's interests in the auction procedure of this case.

(D) Distribution of dividends on the instant building

As long as it is reasonable to view that the Plaintiff received dividends in whole from the sales price of the instant building rather than the instant land, the Defendant appears to have received dividends in the amount of KRW 744,589,376 from the sales price of the instant building, not from the instant land. In order to calculate the amount that the Plaintiff would have received if the Defendant had not received dividends, I would like to examine how to distribute the sales price of the instant building in the status other than the Defendant (Namcheon-do Office) with only the materials indicated in the records of this case and only distribute the sales price of the instant building in the situation where the Plaintiff had not received dividends.

(1) Distribution ranking:

According to the above facts, the order of distributing dividends among interested parties to the building of this case is as follows.

② Distribution of dividends to the second-class holders of the share of the ○○ Day among the instant buildings

In the distribution relationship between the right holder and the right holder over the right holder over the right holder over the right holder over the right holder over the right holder over the right holder over the right holder over the right holder over the right holder, the right holder over the right holder cannot claim preferential payment right for the right holder over the right holder over the right holder over the right holder over the right holder over the right holder over the right holder. Therefore, the right holder over the right holder has received equal distribution according to the proportional distribution amount according to the first claim amount. Since the right holder over the right holder over the right holder over the right holder over the right holder over the right holder over the right holder over the right holder over the right holder, the junior provisional seizure creditor or junior right holder shall have to absorb the amount of the right to preferential payment for the right holder over the right holder over the right holder over the right holder over the right holder over the right holder over the right holder over the right holder over the right holder over the right holder over the right holder over the right holder over the right holder over the right holder over the right holder's over the right holder's over the right holder's over the right holder's over the right holder's over the right.

The amount of money actually distributed to ○○○ in the instant building is KRW 738,310,054 as seen earlier, and the amount of money distributed to 21,236,730 among the buildings in this case should be distributed to 17,073,324 won (=738,310,054-21,236,730 won). Accordingly, the amount of money distributed to 2nd priority holders shall be KRW 717,07,073,324 in proportion to the amount of each claim to 2nd priority holders, as stated in the column of "the amount of money distributed to 2nd priority holders of the building in this case."

In the case of ○○ Bank, which is a joint mortgagee for the ○○○○-8 and the ○○○○-2 land out of the instant building, the amount allocated (auction price) to the secured debt of ○○ Bank out of the amount to be actually distributed the ○○○○-8 out of the instant building x 63,915,61 won (the amount calculated by dividing the amount of 717,073,324 won (excluding the amount of dividends to the 1st creditor), among the 63,915,61 won (the amount of 717,073,324 won excluding the amount of dividends to the 1st creditor). In the case of ○○○-8,00, 000, 350, 4760, 360, 4760, 47, 9065, 60, 5069, 5060, 560, 560, 567, 76060, 1050, 6060

○○○○-dong ○○○-8’s land is the maximum amount that ○○ Bank can receive dividends with the above bonds. Therefore, the limit of ○○○ Bank’s absorption of the shares in the instant building out of ○○○-8 is 36,39,708 won (=100,255,369-63,915,661 won), which is the balance obtained by deducting the amount distributed in proportion to the above bonds from the maximum amount that ○○ Bank can receive dividends with the above bonds from the shares in ○○○○-day among the instant buildings. Of the instant building, the scope of ○○○○○○○-○○○○-Ba’s absorption limit, which is a co-mortgage for the shares in ○○○○-dong and Do○-8’s shares in the instant building, is also calculated in the same manner as above, “the absorption limit on the ○○○○○-party’s shares in the instant building, which is a person having a right to lease on the entire of the instant building.”

With respect to the primary absorption, ○○ Bank may absorb 36,339,708 won, which is one’s absorption limit, from its subordinate creditors. The ○○ Bank, among subordinate creditors, may absorb 36,339,708 won, which is one’s own absorption limit, from its subordinate creditors, 15,241,427 won, which is the sum of the distributed dividends from the ○○○○○ Telecom, which is the sum of the amount of dividends (i, 474,97 won + 11,79,814 won + 11,79,814 won + 1,966,636,339,708-15,241,427) of the subordinate creditors 】 15,241,4296,294,297,306,4296,429,294,3616,294,294,294,367,294,294,367,294,27) of the amount to be absorption from their distribution in proportion in proportion in proportion among the following ○ ○, ○○, 32942,4.

In regard to the second absorption, ○○○○○○○○ may recover 90,166,821 won, the distributed dividend amount of which falls short of the claim amount, from its subordinate creditors. However, the remaining creditors with the same distribution amount should be absorptioned according to the ratio of their respective remaining claims from ○○ Lease, which is the one with the same order of priority among the creditors with the highest distribution amount, and from ○○○○○○○○○ Order of the same order of priority among the creditors with the same order of priority, 88,397,69 won (=90,16,821 won x 200,412,303/4,030,303/4,010,963). The amount to be absorption from ○○○○○○ Lease is 88,300,412,303/4,010,962 won (=90,166,821 won).

In regard to the third absorption, the mortgagee ○○ ○○ CCCS may absorb 49,519,752 won, the distributed distribution amount of which falls short of the claim amount, from its subordinate creditors. The remaining creditors with the same distribution amount, should be absorption in proportion to the ratio of their respective remaining claims from 48,618,719 won (=49,591,752 won x 112,014,634/634/2, 2411). The amount to be absorption from ○○○3,03 won [49,591,752 won x 112,014,634/634/2,2411].

In regard to the fourth absorption, the absorption limit of the ○○○○○○○○○○○○○○○○○○○, among creditors having remaining distributed amounting to KRW 90,021,757 or the creditors with subordinate distribution amounting to the above ○○○○○○○○○○○○, and the sum of these remaining bills does not exceed the absorption limit of the above ○○○○○○○○○○○○○○○○, and thus, the ○○○○○○○○○○○, as the sum of these remaining bills did not exceed the absorption limit of the above ○○○○

Ultimately, the details of final dividends for the second-class shareholders of the shares on the ○○ Day among the instant buildings are as shown in the column for the final dividends on the ○○ Day’s shares among the instant buildings.

③ Distribution to the second-class party of the share in the door-to-door premises of the instant building

Of the instant building, 738,310,054 won is to be distributed in Jongno-gu (the statutory due date is earlier than the registration date of the mortgagee or the mortgagee), which is the first priority. Therefore, the amount to be distributed to the second priority is to be KRW 633,97,874 (=738,310,054-104, 312,180), and if the above 633,97,874 won is distributed in proportion to the amount of each claim to the second priority interest, it is to be written in the column of "the second priority distribution of the shares among the instant building."

In regard to absorption, ○○○○○○, a mortgagee of a collective security, can absorb 151,460,451 won (refer to 2.3 and 2.4 of the attached calculation details), which is one’s absorption limit, from his subordinate creditors. However, the sum distributed to subordinate creditors is not only 73,621,676 won, even if all the amount distributed to subordinate creditors are combined, so ○○ can only absorb the above 73,621,676 won, and the creditors are all the provisional seizure right holders, and the date of the provisional seizure is more than the length of ○○○, the creditors are all the provisional seizure right holders, and the ○○○, which is the right holder of a prior provisional seizure and the right holder of a collective security, are the same order as the date of the registration of establishment of a new collective security, so there

Ultimately, among the buildings of this case, the details of final dividends for the second-class parties of the shares in the literature of this case are as shown in the second-class distribution of the shares in the literature of this case among the buildings of this case.

(3) Sub-determination

Therefore, if there was no dividend from the director of the Namcheon District Tax Office, the Plaintiff could receive a dividend of KRW 674,785,119 (=251,52,040 equity interest in the instant building + KRW 423,233,079) as the person entitled to provisional attachment for the instant building at the instant auction procedure without any legal ground. Thus, the Defendant, who received a dividend of KRW 744,589,376 from the instant auction procedure without any legal ground, was decided by the Board of Audit and Inspection to revoke the disposition imposing gift tax on the Plaintiff among KRW 674,785,119, which is the Plaintiff’s loss by return of unjust enrichment, and from November 4, 2003 to November 15, 2009, which appears to have known of the Defendant’s unjust enrichment, the Defendant is obligated to pay damages for delay at the annual rate of KRW 646,388,245, which is the date of the instant auction procedure to the date of full payment of each lawsuit.

B. Judgment on the defendant's defense of repayment

The defendant asserts that it is impossible to respond to the plaintiff's claim because he has deposited the money distributed in the auction procedure, and the plaintiff asserts that the payment deposit of the defendant is unlawful. Therefore, the defendant's payment deposit satisfies its requirements and satisfies its requirements to determine whether it is legitimate and effective.

According to the above, the defendant deposited 794,507,841 won in total with the amount distributed on September 6, 2004 and damages for delay under Article 487 of the Civil Act, and the underlying provision shall be the deposit without specifying the person to whom the deposit was made (the defendant shall make the payment deposit while designating the person to whom the refund was issued and the person to whom the order of collection was issued, and the person to whom the provisional seizure was issued, as well as the person to whom the right to whom the refund was issued was issued upon the revocation of the disposition imposing the gift tax was designated as the person to whom the deposit was made. In this case, if the person to whom the deposit was made did not request the delivery, the person to whom the deposit was made was subordinate to the creditor in the auction procedure, and under our deposit system, the debtor shall be liable to designate the creditor (the person to whom the deposit was unlawful). Thus, if the creditor is specified or at least the creditor is relatively specific, and if the creditor cannot be ascertained whether the creditor is the person to whom the deposit was made, the creditor or the creditor cannot be objectively.

Therefore, since the above deposit of the defendant is illegal deposit, the defendant's defense of repayment is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.