Suwon District Court 2013 Gohap17318 ( October 16, 2014)

A third party obligor cannot assert the absence of enforcement claim as a defense in a collection claim lawsuit.

In a collection claim lawsuit, there is no evidence to prove that the non-existence of the execution claim cannot be asserted as a ground of defense, and that the third debtor's business right acquisition claim has been fully satisfied.

2014Na2045551 Collection

Korea

○○○○○

National Rotations

November 18, 2015

December 16, 2015

1. The judgment of the first instance court, including the Plaintiff’s claim expanded in the trial, shall be modified as follows:

A. The Defendant shall pay to the Plaintiff 9,310,868,360 won and 6,529,360,980 won among them, 5% per annum from October 23, 2015 to December 16, 2015, and 20% per annum from the next day to the day of full payment.

B. The plaintiff's remaining claims are dismissed.

2. All costs of the lawsuit shall be borne by the defendant.

3. Paragraph 1(a) of this Article may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 9,319,156,680 won and 20% interest per annum from August 1, 2013 to the day of complete payment (the plaintiff extended the purport of the claim at the trial).

2. Purport of appeal

Of the judgment of the court of first instance, the part against the defendant exceeding the amount ordered to be paid below shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed. The defendant shall pay KRW 5,273,708,040 to the plaintiff.

1. Facts of recognition;

A. Tax claims against the Plaintiff, ○○, Inc.

As of October 7, 2015, ○○○○ Co., Ltd. (hereinafter referred to as “○○○”) imposed corporate tax of KRW 6,121,203,850, value-added tax of KRW 3,189,664,510, total amount of KRW 9,310,868,360 (including additional charges; hereinafter the same shall apply), corporate tax of KRW 5,457,530, corporate tax of KRW 2,816,420 as of October 31, 2014, and corporate tax of KRW 14,370, total amount of corporate tax of KRW 9,319,156,68,368,368, and the due date for payment of corporate tax of KRW 5,457,530 as of December 31, 2015, with the due date for payment as of December 31, 2015.

B. Claims against the Defendant by ○○

1) On August 29, 2007, the Defendant acquired by transfer the right to execute the ○○○ Urban Development Project by proxy (hereinafter “the instant business right”) from ○○○○○○○○○○○○○○○○○○○, and paid to ○○○○○ KRW 2,736,736,184 as incidental expenses incurred in the process of promoting the PF, KRW 3,273,263,816 in return for the transfer and performance of the enforcement right, KRW 5 billion in total in return for the transfer of the business right to the remaining apartment land, and KRW 1,101,000,000 won in return for the transfer of the business right to the remaining apartment land within three business days from the execution date of the contract. The written contract for transfer and acquisition of

Article 6 (Special Provisions for Payment of Negotiated Amount)

1. The time for payment of the agreement under this contract shall be paid in a lump sum within three business days from the date of conclusion of the contract, and the amount notified (10,357,854,194 won) and related interest as the garnishee by taking measures, such as provisional seizure of claims against ○○ by the time of entry into force of this contract shall be managed by the method prescribed by the defendant (e.g., Escro account or any similar method) regardless of the amount paid by each item under this contract, and the relevant expenses shall be borne by ○○.

(2) Where the ○○○ requests the provisional seizure authority to pay the amount under paragraph (1) together with the agreed documents and evidentiary documents on the cancellation of execution of provisional seizure, the amount may be immediately paid to each creditor.

Provided, That if the defendant considers it necessary, he/she may deposit directly to an individual creditor.

(3) omitted.

2) In accordance with the above agreement, the Defendant issued a promissory note of KRW 11 billion by paying the amount of provisional seizure of claims against the Defendant as a third party obligor. On August 30, 2007, the Defendant concluded a bank lending credit management agreement with the said promissory note to keep it at the ○○○ branch of ○○ Bank and to manage it.

C. The plaintiff's seizure and collection order

1) On March 4, 2013, 2013, the ○○ Tax Office notified the Defendant of the following tax claims against the Plaintiff’s ○○○○ Defendant that the amount of national taxes in arrears (including increased additional taxes and expenses for disposition on default added later) (including additional dues), among the claims against the Defendant at ○○○○, should be seized (the amount in arrears at that time, including additional dues), was served on March 7, 2013 on the Defendant (hereinafter “instant attachment disposition”).

2) On March 4, 2013 and May 21, 2013, 2013, the ○○ Tax Office urged the Defendant to pay the said KRW 6,881,946,440 with respect to KRW 11 billion, which is the consideration for the transfer of the instant business right between ○○ and the Defendant.

[Reasons for Recognition]

Facts without dispute, Gap evidence 1 through 6, 8 (including each number; hereinafter the same shall apply), Eul evidence 8 through 12, and the purport of the whole pleadings.

2. Determination

A. Determination on the cause of the claim

According to the above facts of recognition, the defendant issued the attachment disposition of this case to the plaintiff, an execution creditor who subrogated ○○ pursuant to Article 41 (2) 1 of the National Tax Collection Act, and obtained the payment deadline on December 31, 2012 of corporate tax, total value-added tax, total amount of KRW 9,310,868,360 (including additional dues, etc.) and its principal tax, total of KRW 6,529,360,980 (additional dues have the nature of interest on the unpaid national tax, and no additional interest shall be added separately) after October 7, 2015, which includes the following day following the delivery of a request for change in the purport of this case and the cause of the claim, and the defendant's claim for delay payment from October 23, 2015 to December 16, 2015 can not be included in the amount equivalent to 30% per annum of corporate tax from the next 20% of the total amount of obligation to pay 15% per annum of each of the above claim.

B. Judgment on the defendant's argument

1) Regarding the provisional attachment, principal attachment and assignment order of other creditors

A) Defendant’s assertion

The defendant asserts that ○○○'s claim for the transfer price of the business right of this case was provisionally seized by ○○ obligees, or that the plaintiff's claim to be collected should either be extinguished or its scope should be limited.

B) Judgment on the Defendant’s assertion of provisional seizure

(i) Article 41 (Procedures for Attachment of Claims)

(1) In seizing claims, the head of a tax office shall notify it to the obligor of the relevant claim (hereinafter referred to as the "third obligor").

(2) Upon notification under paragraph (1), the director of the tax office shall subrogate the obligee who is the defaulted taxpayer within the limit of the delinquent amount.

Under the current law, the procedure for failure to pay national taxes and civil execution procedure are separate procedures, and there is no provision in the law regulating the relationship between both procedures, so one party’s procedure cannot interfere with the other party’s procedure, while each obligee is bound to participate in the different procedure in the two procedures by determining different procedures (see, e.g., Supreme Court Decision 2013Da60982, Jul. 9, 2015). Therefore, even if ○○’s provisional attachment was made by the obligee, collection by the Plaintiff’s delinquent procedure does not affect the Plaintiff’s collection. Accordingly, the Defendant’

C) Judgment on the Defendant’s assertion on the main attachment and assignment order

을 제3 내지 6호증의 각 기재에 의하면, ○○의 채권자인 주식회사 믿음의 사람들이 2009. 5. 13. ○○지방법원 ○○지원 2009타채3094호로 이 사건 사업권의 양도에 따른 ○○의 피고에 대한 부당이득금반환채권(2007. 6. 18. 같은 법원 2007타채2490호로 압류 및 추심됨) 중 청구금액 1,321,118,010원에 이르기까지 금원에 관하여 전부명령을 받은 사실, 위 전부명령이 2009. 5. 18. 제3채무자인 피고에게 송달된 후 그 무렵 확정된 사실, ○○의 채권자인 주식회사 ○○이 2009. 5.13. 같은 법원 2009타채3179호로 이 사건 사업권의 양도계약이 체결되지 아니한 데 기한 ○○의 피고에 대한 부당이득반환채권(2007. 7. 4. 같은 법원 2007카합698호로 가압류됨) 중 청구금액 1,924,985,392원에 관하여 전부명령을 받은 사실, 위 전부명령이 2009. 5. 18. 제3채무자인 피고에게 송달된 후 그 무렵 확정된 사실은 인정되나, 한편 갑 제2호증, 을 제7호증의 각 기재에 변론 전체의 취지를 종합하면, 이 사건 사업권의 양도를 위한 협의 과정에서 피고가 2003. 6.경 ○○으로부터 토지매수인의 지위를 일부 승계받았는데 이후 사업권양도협의가 무산되어 피고가 ○○에 반환할 부당이득이 발생한 사실 그 후 1의 나. 1)에서 인정한 바와 같이 다시 사업권양도협의가 이루어졌다 �, ○○과 피고는 2007. 8. 29. 같은 날 이루어진 이 사건 사업권의 양도 계약과는 별도로 공동주택지 사업권의 양도 계약을 체결하면서, 피고가 ○○에게 공동주택지 1만 평 사업권의 양도 대가로 92억 원을 계약체결일로부터 3영업일 이내에 지급하기로 약정한 사실, 주식회사 믿음의사람들, 주식회사 ○○이 피고를 상대로 제기한 전부금청구 소송에서 항소심 법원(○○고등법원 2011나○○호)은 피전부채권인 ○○의 피고에 대한 부당이득반환채권을 92억 원 정도로 판단한 사실을 인정할 수 있는바, 이러한 사실에 주식회사 믿음의 사람들과 주식회사 ○○의 최초의 가압류 또는 압류는 이 사건 사업권의 양도이전에 이루어진 점을 종합하여 보면, 위 각 전부명령의 피전부채권은 110억 1,000만원 상당의 이 사건 사업권의 양도대금 채권과는 무관한 별개의 채권으로 보인다. 따라서 피고의 이 부분 주장도 이유 없다.

2) On repayment to ○○

The defendant paid 9.2 billion won to ○○ on August 29, 2007 with the proceeds of the transfer of business rights, and paid 920 million won with the value-added tax on October 24, 2007. Thus, according to the evidence Nos. 7, it can be acknowledged that the defendant paid 9.2 billion won to ○○ on August 29, 2007 due to the return of unjust enrichment. However, as seen in the above Paragraph 1, it is deemed that the defendant paid 9.2 billion won to ○○ on August 29, 2007 with the repayment of the proceeds of the transfer of the business rights of this case, which is a claim to be collected by the plaintiff, and therefore, the defendant's above assertion is without merit.

(iii)with respect to delay damages;

The defendant asserts that, as a special contract for the payment of the agreed amount under Article 6 of the contract for the transfer and takeover of the business right of this case, the defendant shall pay the amount notified to the defendant as the garnishee (10,357,854,194 won) and related interest to the defendant only when ○○ makes a request with the provisional attachment authority and the documents of agreement and evidentiary documents for the cancellation of execution of provisional attachment. The defendant asserts that even if the plaintiff has the claims to be collected, the damages for delay does not occur until such conditions are met (the plaintiff's argument seems to the purport that even if the collection authority of the defendant exists in domestic affairs, the execution of the agreed amount shall be made only within 1.1 billion won, not including the interest

On the other hand, when comprehensively interpreting Article 6 (1) and (2) of the Agreement on the Transfer and Acquisition of the Business Right of this case, the full amount of the agreement has been due at the expiration of three business days from the date of conclusion of the contract. However, it appears that the defendant kept the amount provisionally seized to avoid double repayment by the account, etc., and if necessary, it appears that the defendant can pay or deposit it to an individual creditor, and it is difficult to view that the ○○○○ requests accompanied by the documents of agreement with the provisional seizure authority and the evidentiary documents of cancellation of provisional seizure. Therefore, as long as the period has arrived at the maturity, the interest interest accrued regardless of the request for payment by the ○○○ or other creditors, and the above assertion by the prior defendant is without merit.

3. Conclusion

Then, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remainder

The claim is dismissed due to the lack of reason, and the judgment of the court of first instance, including the plaintiff's claim extended in the trial.

B. We decide to modify as above. It is so decided as per Disposition.