Korea

Seoul High Court Decision 2006Na1448 decided May 1, 200

September 24, 2015

Seoul Central District Court Decision 2014Gahap515866 Decided November 7, 2014

1. The defendant's appeal is dismissed.

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

3. Disposition 1 of the first instance judgment was modified as follows according to the partial withdrawal of the lawsuit by this court.

A. The assignment contract between the Defendant and CCCNz, Inc. on October 26, 2010, with respect to each intellectual property right described in the Nos. 1 to 4 and 7 of the Attached List of Intellectual Property Rights concluded on October 26, 201, shall be revoked.

B. The defendant shall execute each procedure for cancellation of transfer registration, which was completed with each receipt number listed in the respective receipt number column of the same list, for each intellectual property right listed in the above paragraph (A) on each date listed in the column for receipt of the same list.

1. Purport of claim

b. Paragraph b. of the Disposition No. 3-A (the plaintiff partially withdrawn the lawsuit in this Court).

2. Purport of appeal

The judgment of the first instance is revoked, and all of the plaintiff's claims are dismissed.

1. The judgment on the basic facts and the defendant's main defense

The reasoning for the court’s explanation on this part is as follows, and this part of the judgment of the court of first instance is identical to that of the judgment of the court of first instance, and this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

(a) from 2.2 to 12 pages from 2.0 up to 2.00 up to 2.0

On October 25, 2010, the Plaintiff had corporate tax, wage and salary income tax, total amount of KRW 431,684,590 in the principal tax of value-added tax, and additional tax claims thereon, as described in the separate taxation claim No. 1 through No. 18, as stated in the separate taxation claim list against CCCCCF business (hereinafter “Nonindicted Company”), and did not yet have a tax payment notice as listed in the same No. 19, but such securities transaction tax claim was established;

(b) To delete all parts of Section 1).

(c)The 3rd amendment of the three parallels “(3)” was made as follows:

As a result, between October 27, 201 and January 27, 2011, the intellectual property right of this case was registered under the name of the defendant as shown in the separate list of intellectual property rights.

(d) each amendment to the three 16 pages “Pledge” and “Japan Es.S.” to the “Pledge” and “ELCS,” respectively, the third 17 chrox “KNT” to the “KNTT,” and the fourth 11 chrox “Case, 26 October 201,” respectively.

(e) 4.The addition to the following "including paper numbers" of 14 pages:

f.5 to the right by inserting four (4) below:

Therefore, the Plaintiff became aware of the instant transfer through the Korean Intellectual Property Office, which is an affiliated organization, around October 27, 201, through the National Tax Service, on or around May 23, 201 through the National Tax Service, which was an affiliated organization, that the non-party company was insolvent. Therefore, it should be deemed that the Plaintiff knew that the non-party company committed a fraudulent act with the knowledge that it would prejudice the Plaintiff around October 27, 201 or at any latest around 2011.

(g) revise “this Court” of nine (9) pages to “the first instance court”;

(h) from 10 up to 5 6 - up to 10 10 - up to 2 - up to the following modifications:

However, in cases where the State exercises its right of revocation by making a claim preserved as a claim, it is reasonable to view the date when the “tax official in charge of collection, preservation, etc., becomes aware of the cause of revocation” as the date when the State becomes aware of the cause of revocation, considering the nature of the taxation claim or the fact that both the authority and duties are separately determined by the statutes (Article 406(2) of the Civil Act regarding the right of revocation should be viewed as the date when the State becomes aware of the cause of revocation (Article 406(2) of the Civil Act regarding the right of revocation should be deemed as the date when the State becomes aware of the cause of revocation, unless the State becomes aware of any agency affiliated with the State, and as long as the State becomes aware of the cause of revocation, the State has become aware of the cause of the revocation.)

(i) each modification to “the assignee’s fact” of the 11th 13 parallels to “the transferor’s fact,” and to “ March 14, 2013.” of the 12th 10 parallels to “ March 14, 2014.”

2. Judgment on the merits

A. Formation of preserved claims

위 기초사실에서 본 바와 같이 원고는 이 사건 양도계약이 체결되기 전인 2010. 10. 25.경 소외 회사에 대하여 본세 합계 431,684,590원의 조세채권을 가지고 있었다. 한편 채권자취소권에 의하여 보호될 수 있는 채권은 원칙적으로 사해행위라고 볼 수 있는 행위가 행하여지기 전에 발생된 것임을 요하지만, 그 사해행위 당시에 이미 채권성립의 기초가 되는 법률관계가 발생되어 있고, 가까운 장래에 그 법률관계에 터잡아 채권이 성립되리라는 점에 대한 고도의 개연성이 있으며, 실제로 가까운 장래에 그 개연성이 현실화되어 채권이 성립된 경우에는, 그 채권도 채권자취소권의 피보전채권이 될 수 있는바( 대법원 2012. 2. 23.ㅤ선고ㅤ2011다76426ㅤ판결 등 참조), 이 사건 양도계약 당시 별지 순번 19 기재 증권거래세 부분도 이미 그 조세채권이 성립은 되어 있었을 뿐만 아니라 별지 해당 부분 기재와 같이 실제로 가까운 장래에 납세고지가 이루어져 채권의 발생이 현실화된 이상 그 증권거래세 채권도 피보전채권에 포함된다. 그리고 국세징수법이 규정하는 가산금과 중가산금은 국세가 납부기한까지 납부되지 않은 경우 미납분에 관한 지연이자의 의미로 부과되는 부대세의 일종으로서 과세권자의 확정절차 없이 국세를 납부기한까지 납부하지 아니하면 그 법에 의하여 당연히 발생하고 그 액수도 확정되므로, 본세가 채권자취소권의 피보전채권으로 인정되는 이상 이에 대한 사해행위 이후 사실심 변론종결시까지 발생한 가산금과 중가산금도 역시 피보전채권에 포함된다고 봄이 타당하여( 대법원 2014. 4. 10. 선고 2013다217764 판결 등 참조), 원고가 이 사건에서 주장하는 별지 조세채권 목록 중 ‘가산금’란 기재 각 금액도 모두 피보전채권에 포함된다.

(b) Fraudulent act and intent to commit suicide;

1) Unless there are special circumstances where the debtor's act of selling real estate, which is the only property of the debtor, and changing the sale into money easily for consumption, is always deemed a fraudulent act against the creditor, barring special circumstances where the sale was conducted at a reasonable price in order to appropriate for a legitimate repayment to some creditors. Therefore, the debtor's intent of deception is presumed. This legal doctrine also applies where the only property is an intellectual property right (see Supreme Court Decisions 2008Da8458, May 14, 2009; 2004Da43909, Jul. 22, 2005, etc.).

2) However, considering the aforementioned facts and the evidence Nos. 5, 14, and Eul evidence Nos. 10, 13, and 14, and the fact-finding conducted by the Korea Technology Credit Guarantee Fund of this court on the basis of the overall purport of pleadings, the following facts or circumstances that can be acknowledged by comprehensively considering the fact-finding and the fact-finding conducted by the Seoul Technology Credit Guarantee Fund, the transfer contract of this case is concluded with the non-party company, rather than for the non-party company to meet the "justifiable" obligation owed to some creditors (technology Credit Guarantee Fund), and concluded with the defendant and the Korea Technology Credit Guarantee Fund to exclude other creditors, including the plaintiff who have the right to preferential payment as tax holders, and to repay only part of the obligation of the Korea Technology Credit Guarantee Fund (see, e.g., Supreme Court Decisions 2004Da43909, Apr. 29, 2005; 2005Da6885, Apr. 28, 2005).

① The Korea Technology Finance Corporation did not separately assess the value of the intellectual property right of this case when calculating the Defendant’s subrogated amount (1.14 billion won). However, considering the Defendant’s business size at the time of acquiring the instant intellectual property right, the amount that the Defendant could pay by subrogation was set as the Defendant’s subrogated amount when the Defendant performed the business based on the instant intellectual property right. On December 31, 2009, before the non-party company transferred the instant intellectual property right to the Defendant, the financial statements of the non-party company indicated the value of the industrial property right held by the non-party company as 22,09,377 won, which was before the non-party company transferred the instant intellectual property right to the Defendant. In light of the fact that the patent attorney, etc. of the new international patent law office, upon receipt of the Defendant’s request, assessed the technical value of the patent right of this case as KRW 20 million around October 12, 2010, it appears that the price of the intellectual property right of this case is a considerable amount of price.

② However, while the representative director of the defendant was in office as the representative director of the non-party company, the defendant established the defendant on April 22, 2009 and carried out business activities using the intellectual property right of this case. The creditor of the non-party company started compulsory execution on the intellectual property right of this case held by the non-party company and demanded the non-party company to repay the non-party company by presenting the conditions of debt exemption. The defendant acquired the intellectual property right of this case from the non-party company by subrogation, and the transfer amount is substituted by the non-party company's debt (5,630,829,90 won). The Korea Technology Credit Guarantee Fund was a person who agreed with the Korea Technology Credit Guarantee Fund to exempt the non-party company from the debt of the non-party company (5,630,829,990 won) instead of paying the debt of about 1.14 billion won from the defendant.

③ At the time of the transfer of this case, the representative director of the non-party company and the defendant was identical to the non-party, and the non-party was established to run the business using the intellectual property right of this case due to the difficulties in the operation of the non-party company. On September 30, 2010, which was the time of the conclusion of the transfer of this case, the non-party company closed its business on September 30, 2010, which was the time of the transfer of this case. At the time of the transfer of this case, the non-party company transferred the intellectual property right of this case to the non-party company even though it was actually the only property of the non-party company, the non-party company and the defendant, regardless of the legal form of the transfer contract of this case and the obligation of the

④ In addition, the non-party company is unable to hold the instant intellectual property right if the compulsory execution procedure regarding the instant intellectual property right is pending, and thus is unable to conduct business using the instant intellectual property right. On the other hand, if a new company (the defendant) is incorporated and transferred the instant intellectual property right to the company, the non-party company, even if it should calculate and pay the maximum amount that the defendant would have obtained from its business operation using the instant intellectual property right, the non-party company, the creditor of the non-party company, the Korea Technology Finance Corporation, should be able to gain profits from its business operation

⑤ Meanwhile, at the time of the transfer of the instant intellectual property right at the time of the conclusion of the transfer contract, the Korea Technology Finance Corporation completed the provisional seizure registration and seizure registration with respect to the patent right held by the non-party company. At the time of the transfer of the instant intellectual property right, not only the provisional seizure registration and seizure registration but also the pledge registration with the obligee, the provisional seizure registration with the obligee to be ELCS, and the seizure registration with the obligee to be NANT, which made the obligee to be the obligee as NANB, were completed. Therefore, the Korea Technology Finance Corporation fully recognizes the fact that the non-party company was unable to hold any property other than the instant intellectual property right and the fact that other creditors against the non-party company exist.

(6) Although it is extremely unusual that a creditor exempts a debt amounting to approximately KRW 4.5 billion, the Korea Technology Credit Guarantee Fund may not receive full payment of the amount realized of the intellectual property of this case due to the existence of other creditors even if the compulsory execution procedure on the intellectual property of this case is continued, (i.e., 1., 1.14 billion won as seen earlier; (ii) even if the intellectual property of this case was realized in compulsory execution procedure, it is not deemed that the amount exceeded KRW 1.44 billion, even if the intellectual property of this case was realized in the course of compulsory execution (see, e.g., Supreme Court Decision 190 million won). On the other hand, the transfer of this case consented to the transfer of this case, and the remainder of the debt other than the amount subrogated by the defendant among the non-party company's debts, if the maximum amount possible is paid from the defendant, the Korea Technology Credit Guarantee Fund may make the maximum amount to be paid by the defendant, even if the amount did not reach KRW 1140 million as to the non-party.

7) In fact, the Korea Technology Credit Guarantee Fund received final KRW 1140 million from the Defendant on December 7, 2010 and received a payment of KRW 1140 million from the Defendant on December 8, 2010 (Seoul Eastern District Court 2005Kadan12147) and withdrawal of the application for cancellation of provisional seizure (Seoul Southern Southern District Court 2010 Tadan9872) and the application for the order to sell patent rights (Seoul Southern Southern District Court 2010 Tadan13219, Seoul Southern District Court 201). As such, it appears that the remainder of the non-party company’s debt excluding KRW 1140 million which was subrogated out of the non-party company’s debt excluding the subrogated amount of KRW 1140 million is exempted.

8. It is difficult to find out that the non-party company did not repay its debts to the plaintiff with preferential payment right as a taxation right and there was a justifiable reason to first repay its debts to the Korea Technology Credit Guarantee Fund.

(c) Revocation of fraudulent acts and reinstatement;

Therefore, among the transfer contracts of this case, all of the intellectual property rights listed in the Nos. 1 through 4, 7, and 19 in the separate list of intellectual property rights sought by the Plaintiff should be revoked as a fraudulent act (the above 17 intellectual property rights value at the time of the closing of argument of this case falls short of the Plaintiff’s preserved claim amount), and the Defendant, the beneficiary, due to restitution following the cancellation of fraudulent act, is obligated to implement each procedure for cancellation of transfer registration of each intellectual property right to the non-party company, which was completed with each receipt number indicated in the same list No. 1 as of each date indicated in the same list No. 1 as of each of the above intellectual property rights ( even if the registration of the intellectual property rights of this case at the time of the transfer contract of this case was revoked after the completion of the transfer contract of this case, considering the overall purport of the statement and pleading No. 10 as to the intellectual property rights of this case, it is recognized that there was no claim against the non-party company of ELS as of July 21, 201010.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance on the remaining part of the lawsuit which has been partially withdrawn is just, and the defendant's appeal on this part is dismissed on the ground that it is without merit, but it is so decided as per Disposition by the court of first instance on the ground that the part of the lawsuit has been partially withdrawn.

[Attachment]

Judges exhaustr fever (Presiding Judge)