The plaintiff's claim against the defendant BBB for the confirmation of the right to deposit money against the defendant BB

AAAAAAAA’s claim for confirmation of the Plaintiff’s claim for reimbursement of deposit against Defendant BBBBB on the premise that the assignment of the claim for reimbursement of deposit under the instant lease agreement against Defendant BBB is not effective against a non-assignment agreement, is groundless.

Transferability of claim of Article 449(1) of the Civil Act

2014 Gohap586707 Other (money)

Korea

1. AAAAAA;

2.CC in bankruptcy by BBB;

3. Diplomaticity Diplomaticity

April 26, 2016

May 31, 2016

1. 원고와 피고 주식회사 AAAAAAAAA, ddd 사이에 소외 주식회사 EEEEE {XXXXXX-XXXXXXX, XXXXX XXX XXXX XXX(XXX)} 가 2014. 7. 4. 서울중앙지방법원 2014년 금 제14478호로 공탁한 181,921,336원에 대한 공탁금출급권자가 원고임을 확인한다.

2. The Plaintiff’s claim againstCC by the trustee in bankruptcy of Defendant BBBBB is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and Defendant AAAAAAA, DDDDDD is borne by the Defendants, and the part arising between the Plaintiff and Defendant BBB trustee in bankruptcy andCC is borne by the Plaintiff.

Cheong-gu Office

주문 제1항 및 원고와 피고 주식회사 BBBBBB의 파산관재인 CCCCCC 사이에 소외 주식회사 EEEEE {XXXXXX-XXXXXXX, XXXXX XXX XXXX XXX(XXX)}가 2014. 7. 4. 서울중앙지방법원 2014년 금 제14478호로 공탁한 181,921,336원에 대한 공탁금출급권자가 원고임을 확인한다.

1. Basic facts

A. The Plaintiff holds a national tax claim amounting to KRW 216,538,670 in total, including value-added tax and wage and salary income tax, that occurred from March 31, 2013 to December 31, 2013, against Defendant AAA (hereinafter “Defendant AA”).

B. On September 14, 2010, Defendant AA entered into a lease agreement (hereinafter “instant lease agreement”) with the EEEE (hereinafter “EEE”) and EEEE ownership on a building owned by the EEE (hereinafter “EE”), setting the lease deposit amount of KRW 450 million from November 10, 2010 to November 9, 2015 as the lease deposit amount of KRW 450 million, monthly rent of KRW 38 million.

C. On February 13, 2013, Defendant AAB (hereinafter “BBB”) transferred to Defendant AA’s EE under the instant lease agreement to the BBBB (hereinafter “BB”), and BBB notified Defendant AA of the said transfer to EE on behalf of Defendant AA on August 8, 2013.

D. EEE is notified on April 4, 2014 on the fact that Defendant DDD (hereinafter “Defendant DDDD Corporation”) seized Defendant AADD’s claim for refund of deposit under the instant lease agreement to collect delinquent social insurance premiums, and that the Plaintiff (competent: circulation duty) seized the aforementioned claim for refund of deposit in order to collect Defendant AAA’s delinquent national tax claims. The notification was received on March 18, 2014 and April 7, 2014.

E. Upon the termination of the instant lease agreement with Defendant AA, EE shall return KRW 181,921,336, which is the balance after deducting damages, etc. in connection with the lease agreement, from among the claims to return deposit, to Defendant AAA. However, a non-assignment agreement exists under the instant lease agreement, and on the ground that: (a) the Defendant Corporation and the distribution tax office and the Seoul regional tax office’s seizure of the above claim for the refund of deposit did not become known to the true creditor; (b) the obligor deposited KRW 181,921,36, which is the balance after deducting damages, etc. related to the lease agreement from the claims to return deposit; and (c) on the ground that the seizure of the above claim for the refund of deposit by the Seoul regional tax office and the obligor did not become known to the true creditor; and (d) the Defendant BBBBBBBBB trustee in bankruptcy; and (d) the Seoul regional tax office’s regional tax office on July 4, 2014.

F. BBB was declared bankrupt on April 30, 2013 by Seoul Central District Court 2013Hahap54, andCC was appointed as bankruptcy trustee.

[Ground of recognition] Unsatisfy, Gap evidence No. 1 (including a paper number), the purport of the whole pleadings

2. Determination on the Plaintiff’s claim against Defendant AA and Corporation

A. Determination as to Defendant AA’s claim

1) Description of claims: As described in each subparagraph of paragraph (1) above and below 3.A-1.

2) Judgment based on the recommendation of confession (Articles 208(3)2 and 150(3) of the Civil Procedure Act)

B. Determination as to the claim against the defendant Corporation

Defendant AA submitted a written reply to the purport that all of the Plaintiff’s arguments are recognized except for the costs of lawsuit. Accordingly, the Plaintiff and Defendant AAA may accept the claim by deeming that a judicial confession has been made on the facts of the Plaintiff’s assertion as follows:

3. Determination as to the Plaintiff’s claim against Defendant BBB

A. Summary of the parties' assertion

1) Plaintiff

On March 11, 2014, and April 1, 2014, for the collection of national tax claims against Defendant AA, the Plaintiff seized the claim to return the deposit under the instant lease agreement against Defendant AAAA to EE, and notified the attachment thereof to EE, so the Plaintiff has the right to collect the claim to return the deposit under Article 41(2) of the National Tax Collection Act.

The assignment of security deposit claims under the instant lease agreement to Defendant AABBB, which was conducted prior to the seizure of the Plaintiff, is against a non-assignment agreement, and BBBBB was aware of the said agreement or was gross negligence, and thus, it is not effective against the Plaintiff.

2) Defendant BBBB

BBB, before the Plaintiff seizes Defendant AAAA’s claim for the refund of the deposit under the instant lease agreement against the EE, already acquired the above claim for the refund of the deposit from Defendant AAAA to the EE, and notified Defendant AAA on behalf of the Plaintiff on August 8, 2013 of the said transfer to the EEE. Accordingly, the Plaintiff’s attachment is merely for the third party’s property, not the taxpayer, and thus, it cannot be set up against Defendant BBBB as the attachment.

Even if there is a non-assignment agreement under the instant lease agreement, BBBB did not know of the non-assignment agreement as the good faith and without fault, and the said non-assignment agreement merely becomes invalid, and even if effective, it constitutes unfair terms and conditions under Article 6 of the Act on the Regulation of Terms and Conditions, and thus, the assignment of the above security deposit claim against BBB by Defendant AA is valid.

B. Determination (whether a non-assignment agreement exists under the instant lease agreement)

The right to claim the refund of the lease deposit under Article 4 (5) of the lease contract of this case is recognized by the evidence mentioned above.

However, the following circumstances, which are acknowledged by comprehensively taking account of the results of each fact-finding and the overall purport of the pleadings of this Court with respect to EEE, i.e., ① the instant lease agreement was concluded by the same type of contract prepared in advance and printed in the same vice language, EEEE is always entering into a lease agreement from around 2010 to the present date under the above form of contract, ② the EEEEE has not filed an objection with a non-assignment agreement even after being notified of the assignment of claims from BBBBBB; ③ the lessee of the lease deposit despite a non-assignment agreement has the transfer of the claim for the refund of the lease deposit, and EEE is clearly confirmed in that the assignment of the claim for the refund of the lease deposit is lawful and effective if the genuine holder of the right is unclear, and it is difficult to view that the transfer of the claim for the refund of the lease deposit is not effective under the non-assignment agreement on the grounds of the deposit of this case with the Seoul Regional Tax Office’s assignment of claims.

Ultimately, the Plaintiff’s assertion on Defendant BBBB on the premise that Defendant AAAAA’s assignment of security deposit claims under the instant lease agreement against the EE is not effective against a non-assignment agreement is without merit.

4. Conclusion

Therefore, the plaintiff's claim against the defendant AA and the Corporation shall be accepted for the reason that it is reasonable, and the plaintiff's claim against the defendant BB shall be dismissed for the reason that it is not reasonable. It is so decided as per Disposition.