The legitimacy of the assertion that the name was stolen and that the name was not an actual business operator

The plaintiff is judged as the actual business operator in light of the fact that the business operator directly applied for the business registration, and that the plaintiff received a favorable judgment in the claim for damages due to the use of business name.

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On June 9, 2009, the defendant confirmed that the disposition that attached the plaintiff's claims related to insurance contract against AA fire marine insurance company (the "disposition imposing value-added tax" stated in the claim is deemed to be a clerical error, and the date of seizure is specified as the date of disposition) is invalid.

1. Details of disposition;

A. On December 30, 1998, the Plaintiff completed business registration for BB Dong 3818, Jungwon-gu BB Dong, BB Dong, 'CC', 'business attitude', food and accommodation business, and category as danran (hereinafter "the instant business place") at the location of the business place, and on January 12, 2002, reported the closure of business as of July 1, 2001.

B. The Defendant imposed value-added tax (hereinafter collectively referred to as the “instant disposition”) on the Plaintiff based on under-reported data on credit card sales at the instant place of business as follows.

C. As the Plaintiff did not pay the tax imposed upon the instant disposition, the Defendant attached the Plaintiff’s claim against the insurance contract (501605719000, 5025875435000, 606027047900000) related to the Plaintiff’s insurance contract for the Plaintiff’s AA fire marine insurance (the instant attachment disposition) with the total amount of 33,523,160 won in arrears on June 9, 2009, and notified the Plaintiff of this claim on June 10, 2009 (hereinafter “instant attachment disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1, Eul evidence 1, 2, and 3, the purport of the whole pleadings

2. Determination on this safety defense

Since this case is a lawsuit seeking confirmation of invalidity, the defendant's defense that the failure to go through the pre-trial procedure is illegal is without merit.

3. Determination on this part

A. The plaintiff's assertion

The instant disposition of this case is null and void, and the attachment disposition of this case is also null and void, where a person liable for tax payment, by deeming the Plaintiff as being liable for tax payment, as the person liable for tax payment did not operate the instant place of business by stealing the Plaintiff’s name without permission.

B. Determination

In a case where objective circumstances exist that make it possible to mislead a person to be subject to taxation as to a certain legal relation or factual relations which are not subject to taxation, if it can only be clarified whether it is subject to taxation by accurately investigating the factual relations, then it cannot be deemed apparent even if the defect is serious, and thus, it cannot be deemed that the taxation disposition under the above Act, which misleads the person to be subject to taxation, is not necessarily null and void (see, e.g., Supreme Court Decision 2001Du7268, Sept. 4, 2002). The Plaintiff’s assertion is premised on the presumption that the instant disposition is unlawful and thus null and void.

The following facts may be acknowledged in light of the aforementioned evidence, Gap evidence Nos. 2, 3, 4, 5, 6, and 7, and witness Kim Jong-soo's overall purport of the pleadings.

① According to the screen of the Plaintiff’s application for registration of business (Evidence No. 1), the instant application for registration of business was not received by an agent, but entered that the Plaintiff was directly submitted. ② The Plaintiff submitted the petition to the Suwon District Prosecutors’ Office BB branch office on the ground that the Plaintiff was notified of the instant disposition, and on January 31, 2003, the Plaintiff was operating the instant business by stealing the name of the Plaintiff, thereby making use of the name of the Plaintiff. However, the Plaintiff’s statement was in conflict with each other, and the Plaintiff’s statement was taken on February 11, 2003 on the ground that the whereabouts of the witness was unknown, and was disposed of “no prosecution was issued on the ground that the statute of limitations expired on January 27, 2005.” ③ The Plaintiff was concluded on February 24, 2005 on the ground that the Plaintiff did not have the right to file a petition for registration of business. ④ The Plaintiff filed a lawsuit against the Incheon District Court for registration of the identity of the Plaintiff against the Plaintiff.

According to the above facts, the defendant is deemed to have rendered the disposition of this case according to the contents of the business registration reported in relation to the business establishment of this case. Even if the plaintiff was found to have stolen the name of the business operator of this case as alleged by the plaintiff, such circumstances can only be clarified only when investigating the facts accurately. However, even if it was not revealed through prosecutor investigation, and even if there was an error of misconception of the plaintiff as the actual business operator of this case as alleged by the plaintiff in relation to the disposition of this case, even though the defendant committed an act of mistake of the plaintiff as to the disposition of this case as alleged by the plaintiff, the defendant did not lack the appearance of the business registration of this case, which is the ground for misunderstanding of the facts, or there was no objective suspicion of its establishment or authenticity, it is difficult to view the mistake of facts arising from the above business registration as an objective apparent defect (see, e.g., Supreme Court Decision 2000Da24986, Jul. 10, 201).

Ultimately, since the instant disposition is not null and void, it cannot be said that the defect in the instant disposition is naturally succeeded to the instant disposition of seizure (see, e.g., Supreme Court Decision 98Du9530, Nov. 27, 2001). The Plaintiff’s assertion on a different premise is without merit.

4. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.