The burden of proving that all of the obligations have been paid in a collection claim lawsuit shall be borne by the debtor who claims the payment.

Where the contents of the contract are prepared in writing between the parties who have made the disposal document, if the objective meaning of the text is clear, the existence of the expression of intent and its contents should be recognized. The burden of proving that all debts (sale proceeds) have been paid in the collection payment lawsuit shall be borne by the debtor who has asserted it.

2013 Gohap1065 Collection

Korea

AAA et al.

on March 20, 2014

on October 03, 2014

1. The Plaintiff:

(a) Defendant AA 000,000,000 won and its related amount shall be from August 23, 2013 to the date of full payment.

20% interest per annum;

B. Defendant AB shall pay KRW 00,000,000 among the amounts stated in Defendant AA and each of the above paragraph (a).

interest rate of 20% per annum from July 11, 2013 to the date of full payment.

sub-payment.

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

3. Paragraph 1 can be provisionally executed.

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. On September 3, 2009, HongCC entered into a contract to sell each of the real estate listed in the [Attachment List No. 1 to No. 4 (hereinafter “No. 1 of this case”) in KRW 000,000 on September 3, 200 (hereinafter “the first sale contract of this case”), and “the contract of this case No. 1 of this case”.

B. On September 3, 2009, RedCC entered into a contract to sell the real estate listed in the [Attachment List No. 5 (hereinafter “No. 2 real estate of this case”) to Defendant BB for KRW 00,000,000 (hereinafter “the second sale contract of this case”) (hereinafter “the contract of this case”), and “the contract of this case No. 2 sales contract of this case”

C. The HongCC did not report the transfer income tax after transferring each real estate listed in the separate sheet as above (hereinafter “each real estate of this case”). The Plaintiff imposed and notified the HongCC of KRW 90,014,090 for the transfer income tax for the year 2009 in accordance with the relevant income tax law and regulations.

D. However, the Plaintiff did not pay the capital gains tax imposed and notified as above. On April 26, 2013, according to the procedure for the disposition on default under the National Tax Collection Act, the Plaintiff: “The amount up to that time” among the real estate transfer proceeds (including increased additional dues and disposition fees for arrears added thereto) which the Defendant would have paid to HongCC, and “the amount up to that time” among the real estate transfer proceeds (including increased additional dues and disposition fees for arrears added thereto) which the Defendant’s StateB would have paid to HongCC (including increased additional dues and disposition fees for arrears added thereto). At that time, each of the above seizures referred to as “each of the above seizure”, and “the seizure of the purchase proceeds under the 1 sales contract of this case” was sent to the Defendants at each of the above seizures.

E. The capital gains tax in arrears with RedCC is KRW 00,000,000 as of June 19, 2013 (the filing date of the instant lawsuit) (= principal tax + KRW 00,000,000 + Additional dues and aggravated additional dues KRW 00,00,000).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, Eul evidence Nos. 1 through 4, 6 (including each number), the purport of the whole pleadings

2. Determination

A. Determination on the cause of the claim

According to the above facts of recognition, barring any special circumstance, pursuant to Article 41(2) of the National Tax Collection Act

The Plaintiff, a delinquent taxpayer, subrogated to RedCC, Defendant A, under the 1st sales contract of this case,

The amount of KRW 000,000,000, which is equivalent to the amount in arrears, and the delay damages therefor, Defendant BB

The purchase price of KRW 00,000,000 under the 2nd sales contract of this case, among the above amounts and each of the above amounts; and

There is an obligation to pay damages for delay.

B. Determination as to the defendants' assertion

1) The defendants' assertion

A) At the time of the first and second sales contract of this case, the market price of each of the instant real estate was approximately KRW 140 million, but only the sales price was increased.

B) With respect to the payment of the purchase price of each of the instant real estate with HongCC, the Defendants agreed that “A approximately KRW 00 million for enforcement imposed on each of the instant real estate and KRW 00 million for loans granted by HongCC as security for each of the instant real estate shall be repaid in lieu of RedCC by the Defendants.” The Defendants agreed to substitute for the purchase price, “A approximately KRW 00 million for partial purchase price of each of the instant real estate leased by the Defendant to HongCC prior to the 1 and 2 sales contract,” and “A approximately KRW 30 million for enforcement fine imposed on each of the instant real estate paid by the Defendant on behalf of the Defendant (hereinafter “instant payment agreement”).

C) Therefore, since there is no claim for the purchase price under the First and Second Sales Contracts against the Defendants by HongCC, each of the instant seizure is null and void, and thus, the Plaintiff’s claim cannot be complied with.

2) Determination

A) First, we examine the sales amount of the First and Second Sales Contracts.

If a contractual party prepares in writing a certain content of a contract as a disposal document, and if the objective meaning of the text is clear, the existence and content of the declaration of intent should be recognized unless there are special circumstances (see Supreme Court Decision 2010Da26769, Nov. 11, 2010);

According to the evidence Nos. 3 and 4, it can be recognized that the contract of the instant case and the second sales contract of the instant case with the purport that "The RedCC shall sell the real estate of this case to Defendant AA in KRW 00,000,000,000," respectively, was prepared, and that "The first sales contract of this case and the second sales contract of this case shall sell the real estate of this case to Defendant B in KRW 00,000,000,00,000, which are different from the purchase price stated in the sales contract of this case and the second sales contract of this case," and that "the total amount of individual real estate price of each real estate of this case in January 1, 2009 is only KRW 0,00,000,000,000, which is a disposal document, is insufficient to recognize the fact that "the actual sales price of each real real estate of this case between HongCC and the Defendants is about KRW 14,00,00.

B) Next, we examine whether the Defendants fully paid the purchase price under the First and Second Sales Contracts to RedCC.

According to the evidence Nos. 3 and 4 of this case, it can be recognized that the sale price in the sales contract of this case entered into the contract at the same time as the contract is paid and received to the seller. However, in light of the following circumstances acknowledged by the evidence No. 6, the defendants transferred each of the real estate of this case to the defendants in the name of the defendants to avoid the fine imposed on HongCC, a State where the plaintiff is absent. The defendants submitted a statement of vindication that "the payment has not been actually paid to HongCC, even though local tax was paid in full and loan was repaid in full while transfer was made in the name," the above facts alone are insufficient to recognize that the defendants paid all the sales price in the 1 and 2 sales contract of this case to HongCC.

However, in full view of the statements in Gap evidence 6, Eul evidence 1-1-3, and Eul evidence 5, the fact that HongCC paid 5,882,770 won for non-performance penalty in arrears on November 3, 2009, taking into account the whole purport of the pleadings;

○○ Agricultural Cooperative Group of HongCC secured by each real property listed in attached Table 1 through 3 on the same day.

Along with the fact that a sum of KRW 30 million has been repaid to the partnership, it can be recognized that the first sale of this case has been made.

The amount obtained by deducting the above-paid amount (00,000,000) and the amount paid (00,000,000) from the contractual purchase price of KRW 00,000,00,000 under the contract exceeds the amount of attachment No. 1 of this case. As such, the effect of attachment No. 1 of this case does not affect.

C) Therefore, the above assertion by the Defendants is without merit.

Thus, the plaintiff, the defendant AA, the above KRW 000,000,000, and the plaintiff's claim

The Plaintiff is obligated to pay damages for delay calculated at the rate of 20% per annum from August 23, 2013 to the day of full payment, as well as damages for delay calculated at the rate of 20% per annum from August 23, 2013 to the day of full payment, and from July 11, 2013 to the day of full payment, the Plaintiff is obligated to pay damages for delay calculated at the rate of 20% per annum from July 11, 2013 to the day of full payment, which is the day of delivery of the copy of the instant complaint sought by the Plaintiff. Thus, the Plaintiff’s claim against the Defendants is justified.