Daegu District Court-2013-Ban-6763 (Law No. 14, 2013)

The burden of proof of a demurrer against a distribution is against the creditor who has filed an objection to the distribution.

The burden of proof of a demurrer against a distribution is against the creditor who has filed an objection to the distribution.

Article 68-2 (Request for Distribution, etc. of National Tax Collection Act)

2013Na302165 Demurrer against distribution

Section AA

Korea

2013.08.14

2014.026

2014.03.19

1. The plaintiff's appeal is dismissed.

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

"The decision of the first instance court is revoked." The "The distribution case number of the attached table of the Daegu District Court" shall be the amount stated in the "actual dividend of the same Table" column among the dividends in each of the distribution schedule prepared by the Daegu District Court with respect to the dividends in each of the distribution procedures cases, each of the amount stated in the "actual dividend of the same Table" column for the defendant shall be corrected to each of the amount stated in the "actual dividend of the same Table" column for each OO member. The reasons

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as stated in the reasoning of the judgment of the court of first instance, except for adding the following judgments to the pertinent part. Thus, this Court’s reasoning is cited by Article 420 of the Civil Procedure Act.

2. Additional matters to be determined;

On September 30, 201, the Plaintiff asserts that there is no tax claim against the Defendant KimB, since the Plaintiff had already paid the tax during the sale process of the OB-2 and 3 parcels of land, OOB-dong OB, OB-dong, OB-2 and OB-3 parcels of land.

In a false lawsuit of demurrer against a distribution, the Plaintiff has to assert and prove the facts constituting the grounds for the demurrer against a distribution. As such, the obligee who filed an objection against a distribution by asserting that the other party’s claim is disguised, bears the burden of proof as to such assertion (see, e.g., Supreme Court Decision 97Da32178, Nov. 14, 1997).

However, as alleged by the Plaintiff, the fact that the Defendant cancelled the seizure of the real estate owned by KimB without any particular legal measure is insufficient to recognize that the Defendant’s taxation claim against KimB is a false claim, and there is no other evidence to acknowledge this differently.

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.