[Defendant-Appellant-Appellee] Specialized in Asset-Backed Co., Ltd. (Law Firm Pung, Attorney Kim Chang-hoon, Counsel for defendant-appellant

Korea

Intervenor of an independent party

March 18, 2010

1. The defendant,

A. The amount calculated by the ratio of 5% per annum from January 8, 2009 to July 8, 2009, and 20% per annum from the next day to the day of full payment to the Plaintiff; and

(b) An amount of KRW 30,488,573 and the amount calculated by applying 5% per annum to an independent party intervenor from November 6, 2009 to April 15, 2010, and 20% per annum from the next day to the day of full payment.

sub-payment.

2. The independent party intervenor's remaining claims are dismissed;

3. Of the costs of lawsuit, the part relating to the principal lawsuit shall be borne by the defendant, and the part pertaining to the intervention by the independent party shall be borne by the independent party intervenor and the defendant one half.

4. Paragraph 1 can be provisionally executed.

The main office is as set forth in the Disposition.

The defendant shall pay to the intervenor of the independent party (hereinafter referred to as the "participating") an amount calculated by the ratio of 60 million won per annum to 20% per annum from the day following the day of service of a copy of the written application for participation of the independent party to the day of complete payment.

1. Facts of recognition;

A. On June 29, 2007, the National Bank Co., Ltd. (hereinafter “National Bank”) entered into a loan agreement with the Nonparty on a lending limit of KRW 85,5,500,000,000 with the Non-Party and carried out the loan to the Non-Party on the same day (hereinafter “the instant real estate”) owned by the Non-Party, in order to secure the repayment of the loan on the same day (hereinafter “the instant real estate”), after completing the establishment registration of a mortgage in the name of a national bank with the maximum debt amount of KRW 12.6 million.

B. On May 30, 2006, the Nonparty transferred to the Korea Land Corporation the long-term Dong (number omitted) of 418 square meters and three lots (hereinafter “transfer land”). However, the Nonparty did not report the tax base and tax amount of capital gains tax by May 30, 2007, which was the due date for the final return of capital gains tax. On June 15, 2007, the Nonparty filed a return after the due date under the Seocheoncheon Tax Office, but did not pay the reported tax amount of KRW 265,649,222. Accordingly, the Defendant did not notify the Nonparty of the payment without payment for KRW 282,605,550 for the capital gains tax for the year 2006 and sent the payment notice to the Nonparty, but the Nonparty did not pay it.

C. On June 21, 2007, the intervenor entered into a lease agreement with the non-party on the condition that deposit amount is KRW 60 million (in the absence of a contract period) for the real estate of this case, and paid deposit to the non-party (the contract deposit is KRW 6 million in the way that he transfers the remainder to a bank account under the non-party's name on June 8, 2007 prior to the date of concluding the lease contract, which is KRW 26 million in the way that he transfers the remainder to the bank account under the non-party's name on June 8, 2007. The remainder of KRW 28 million in the way that he pays in cash to the non-party in the way that he pays in cash. On June 22, 2007, the lease agreement for the real estate of this case was issued with a fixed date on June 22, 207, and the non-party demanded a transfer of the resident registration for a loan from the national bank, and completed the move-in report again on June 27, 2007.

D. After that, the non-party did not timely repay the loan from the national bank. Accordingly, the national bank applied for an auction of real estate rent at the Seocheon District Court Seocheon Branch Office 2008 Kacheon Branch Office 1469, and the above court (hereinafter the "auction court") decided to commence the auction on February 20, 2008.

E. Meanwhile, on June 27, 2008, the National Bank concluded an asset transfer agreement with the Plaintiff and transferred the above loan claims against the Plaintiff. On July 8, 2008, the National Bank notified the Defendant of the assignment of claims (hereinafter “the National Bank and the Plaintiff”) (hereinafter “Plaintiff”).

F. On December 16, 2008, the Defendant filed a claim for the delivery of KRW 403,490,100,000 in total, including global income tax after March 2008, on which the statutory due date had been set at the auction court on June 15, 2007 and February 29, 2008, and the sum of KRW 282,605,550 and surcharges 42,390,760 in January 2006, and KRW 324,996,310 (hereinafter “the transfer income tax of this case”) and the statutory due date had been set at KRW 403,490,100 in total, and the Intervenor filed a claim for distribution as of February 29, 2008, stating the lease deposit as KRW 6,000 in total as of January 27, 2009, and as of January 29, 2009.

G. On the date of distribution held on January 7, 2009 (hereinafter “the date of distribution in this case”), a distribution schedule was prepared to exclude the Plaintiff and the Intervenor from the distribution, and distribute 133,461,843 won to the Defendant all the amount to be actually distributed to the real estate in this case. The Plaintiff and the Intervenor raised an objection thereto, but did not file a lawsuit of demurrer within the period of filing a lawsuit of demurrer, and the said distribution schedule became final and conclusive as it is. Ultimately, the auction court distributed the Defendant the total amount of KRW 133,461,843 in accordance with the said distribution schedule.

H. After the date of distribution of this case, the Plaintiff collected some of the principal and interest of loan of KRW 102,973,270 against the Nonparty, and collected them as of June 9, 2009, the remaining principal and interest of loan of KRW 88,329,789.

(i) Related Acts and subordinate statutes;

It is as shown in the attached Form.

【In the absence of dispute over the grounds for recognition, Gap evidence Nos. 1 through 8, Eul evidence Nos. 1 through 5, Byung evidence Nos. 2, 6, 7 through 11, Byung evidence No. 5, Byung evidence No. 2, Byung evidence No. 4, Byung evidence No. 7, Eul evidence No. 7-1, Byung evidence No. 3, Eul evidence No. 7-2, respectively) of this court's Seoul Metropolitan Area Business Support Center for the Agricultural Cooperatives, the Industrial Bank of Korea's Deputy Branch, and Kimpo branch, the results of fact-finding, and the purport of the whole pleadings.

2. The parties' assertion

A. The plaintiff

The non-party filed a return after the deadline for the transfer of land, thereby making an occasional determination on the tax base and tax amount ex officio by the defendant. Accordingly, on February 1, 2008, the date on which the defendant issued a tax payment notice of the transfer income tax of this case to the non-party becomes the statutory date. The date on which the registration date of the establishment of a neighboring mortgage of the plaintiff ( June 29, 2007) was earlier than the statutory date of the transfer income tax of this case ( February 1, 2008), the auction court excluded the plaintiff from the distribution of dividends and distributes the amount of KRW 133,461,843, which is the total amount to be distributed to the defendant, thereby causing losses equivalent to the above amount.

(b) An intervenor;

The Defendant, as a lessee of the instant real estate, was the date of the move-in report ( June 21, 2007 or July 27, 2007) on the instant real estate, prior to the date of the Plaintiff’s establishment registration (the date of June 29, 2007) or the statutory due date of the transfer income tax of this case ( February 1, 2008), and thus, the auction court excluded the Intervenor from the dividends and distributes the amount of KRW 133,461,843, which is the full amount to be distributed to the Defendant, thereby making the Defendant unjust enrichment of KRW 60 million and the Intervenor suffered damages equivalent to the above amount.

C. Defendant

The statutory due date of capital gains tax when a return was filed after the due date for capital gains tax shall be deemed not the date of the delivery of tax notice but the date of the actual return after the due date by the taxpayer. On June 15, 2007, the date of the report after the due date by the Nonparty, the Nonparty asserted to the purport that the distribution of the dividend to the Defendant by the auction court is justifiable, because it was earlier than the date of the registration of the establishment of the Plaintiff’s neighboring mortgage ( June 29, 2007) or the date of the Defendant’s move-in report ( July 27, 2007) or the date of the fixed date grant ( June 22, 2007).

3. Determination

(a) Time when the obligation to pay national taxes is confirmed and legal deadline;

(1) Comprehensively taking account of the provisions of Articles 22(1) and 45-3 of the Framework Act on National Taxes and Article 10-2 of the Enforcement Decree of the Framework Act on National Taxes, the obligation to pay capital gains tax shall be determined when the transferor files a return on the tax base and amount of the capital gains tax to the Government in accordance with the procedure prescribed by the Income Tax Act. However, where the Government determines the tax base and amount of the capital gains tax, the head of the competent tax office shall determine the tax base and amount of the capital gains tax (including additional taxes) in accordance with the Transfer Tax Act: Provided, That the head of the competent tax office allows the transferor to file a return after the statutory due date of return even before notifying the transferor of the tax base

(2) In full view of these legal provisions, Article 35(1)3(a), (b), and (4) of the Framework Act on National Taxes on the Guidelines for Determination of Priority of Mortgage, Housing Lease Protection Act, and Tax Claims, capital gains tax is determined by the original tax base and tax return, and thus, if the transferor who is a taxpayer files a return within the statutory due date of return, the priority order shall be determined based on the time of the report and the date after the fixed date under the Housing Lease Protection Act or the Housing Lease Protection Act, but if the transferor fails to file a tax base and tax return within the statutory due date of return, the liability for tax payment shall be determined specifically at the time of the determination of the tax base and tax amount, and the priority order shall be determined based on the date of the determination of the tax base and tax amount and the date after the fixed date under the Housing Lease Protection Act or the Housing Lease Protection Act. The tax base and tax amount of the competent tax office shall be determined specifically by the notification or notification to the taxpayer. The form thereof shall be deemed the date

(3) The transfer income tax of this case was not reported by the public health unit and the non-party by the deadline for the final return of the transfer income tax on the land to be transferred ( May 30, 2007) and the transfer income tax of this case was reported after June 15, 2007 by the non-party (Article 45-3 (2) of the Framework Act on National Taxes provides that a taxpayer who submits the tax return after the due date of the tax return shall pay the tax amount at the same time as the return of the tax base after the due date, but it is difficult to deem that the non-party filed the return after the due date under the Framework Act on National Taxes, so it is difficult to deem that the non-party filed the tax return after the due date under the Framework Act on National Taxes) and confirmed after February 1, 2008. Thus, the statutory due date of the tax claim of this case by the defendant under the transfer income tax of this case shall be deemed to be not June 15, 2007,

(b) Markets:

(1) According to the above facts, the intervenor acquired opposing power by filing a moving-in report on June 21, 2007 of the real estate of this case. On June 22, 2007, the intervenor obtained the right to preferential payment under the Housing Lease Protection Act after obtaining a fixed date from the lease contract on June 22, 2007, but upon receiving the Nonparty’s request, lost possession by filing a move-in report on June 28, 2007, thereby losing both opposing power and preferential payment right under the Housing Lease Protection Act, but only after the moving-in report on the real estate of this case was completed on July 27, 2007, the intervenor again acquired the opposing power and preferential payment right under the Housing Lease Protection Act.

(2) Therefore, considering the priority order of the rights between the plaintiff, the defendant, and the intervenor, the date of registering the establishment of the plaintiff's right to the real estate in this case (as of June 29, 2007) and the opposing power and preferential payment right of the intervenor under the Housing Lease Protection Act (as of July 27, 2007) are earlier than the legal deadline of the defendant's transfer income tax under the transfer income tax in this case (as of February 1, 2008), and the aggregate of the plaintiff's claim amount and the intervenor's demand for distribution (as of February 1, 2008, 162,973,270 won + 102,973,270 won + 60 million won) exceeds the actual amount to be distributed. Thus, the defendant unjust enrichment amounting to 133,461,843 won.

(c) Calculation of legitimate dividends according to the priority order;

According to the above facts, since the date of registering the establishment of a mortgage of the plaintiff was earlier than the intervenor's opposing power and preferential right to payment under the Housing Lease Protection Act, the auction court should have distributed 102,973,270 won (the amount reported by the plaintiff as of January 7, 2009) out of 133,461,843 won, which was distributed to the defendant on the date of the distribution of this case, to the plaintiff, and the remaining 30,48,573 won (=13,461,843 - 102,973,270 won) to the plaintiff, respectively. Accordingly, the plaintiff and the intervenor suffered damages equivalent to each of the above amounts as seen above, since the plaintiff suffered losses from the defendant's unjust enrichment, the remaining principal and interest were relatively reduced to 88,329,789 won due to repayment of some principal and interest of the non-party's debt directly from the non-party after the date of distribution of this case.

D. Sub-committee

Thus, the defendant is obligated to pay to the plaintiff the amount calculated at the rate of 5% per annum as stipulated by the Civil Act from January 8, 2009, the day following the date of delivery of a copy of the complaint of this case to July 8, 2009, and 20% per annum as stipulated by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of complete payment. ② The plaintiff is obligated to pay to the plaintiff the amount calculated at the rate of 30,48,573 won as requested by the plaintiff, and ② as requested by the intervenor, it is reasonable to dispute about the existence and scope of the defendant's obligation to pay from November 6, 2009 to April 15, 2010, which is the day following the date of delivery of the application for participation of the independent party of this case.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the plaintiff's claim for intervention by the independent party is accepted within the scope of the above recognition, and the remaining claim is dismissed on the grounds of its ground.

[Attachment]

Judges Lee In-bok