Whether the court's dividends are appropriate

Since national taxes take precedence over general claims, Defendant Republic of Korea has the right to receive dividends in the distribution procedure of this case prior to the Plaintiff, a general creditor.

Article 35 of the Framework Act on National Taxes

Daejeon District Court 2015Kadan28101 Decided the distribution

○○○○ Corporation

Korea

2016.05.25

2016.07.20

1. Of the instant lawsuit, the part demanding rectification of the distribution schedule with the content that exceeds 30,00,000 won out of the amount of 66,973,751 won against the Defendant is distributed to the Plaintiff, and the part demanding rectification of the distribution schedule with the content that exceeds 13,160,000 won out of the amount of 28,538,762 won against the Defendant, shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

With respect to the distribution procedure case of Daejeon District Court 2014tagi817, the amount of 66,973,751 won, 28,538,762 won against the defendant among the dividend table prepared by the same court on July 28, 2015 shall be adjusted to 0 won, and the amount of 0 won against the plaintiff shall be corrected to 95,512,513 won.

1. Basic facts

A. Contract agreement between ○○ building and Nonparty Construction

○○○ Housing Corporation (hereinafter referred to as the “O○ Housing Corporation”) shall have been executed by the Non-Party Corporation 3

B-2L Landscape Project (hereinafter referred to as the "2BL Landscape Project") on December 21, 2012, 2012, the amount of which was set at KRW 2,018,659,000 (hereinafter referred to as the "the contract of this case") and awarded to Thai Construction Co., Ltd. (hereinafter referred to as "○○ Construction Co., Ltd., ○○○", regardless of the mutual change; hereinafter referred to as "the contract of this case"). The above amount was changed to KRW 1,711,431,39.

(b) Order for the seizure and assignment of claims by △△;

1) △△△△ Co., Ltd. (hereinafter “△△△△△”) filed an application with the Daejeon District Court for a payment order against ○○○ case for the payment of construction cost as the Daejeon District Court 2012 tea 10635. On September 26, 2012, the said court issued an order to order ○○ case to pay KRW 341,00,000 and delay damages.

2) On December 17, 2012, the Daejeon District Court 2012TTY 17154, the authentic copy of the above payment order, issued an order of seizure and assignment as to KRW 353,498,434, out of the claim for construction price based on the instant contract, which was held against Nonparty Corporation by the Daejeon District Court 2012TY 17154, and issued an order of seizure and assignment as the Daejeon District Court 2012TB 17154, and this was served on Nonparty Corporation as the garnishee on December 17, 2012.

C. Seizure of Defendant Republic of Korea

The Republic of Korea shall, on the basis of national tax claims on ○ building, enter the following [Attachment 1]; and

As such, ○○ case seized a claim for construction cost against the non-party corporation.

D. The plaintiff's seizure and collection order

1) No. 1 collection order

A) On September 26, 2012, the Plaintiff filed an application against the Daejeon District Court for a payment order against the Daejeon District Court 2012 tea10674, the Plaintiff filed an application for the payment order with the Daejeon District Court. On September 26, 2012, the said court rendered a payment order with the purport that “○○ Land shall pay the Plaintiff KRW 47,200,000 and its delay damages,” and the said payment order was finalized on October 23, 2012.

B) On February 19, 2013, the Plaintiff issued a seizure and collection order as to KRW 77,169,727, out of the construction price claims based on the instant contract held by the Daejeon District Court 2013TTT 2380, with the title of execution of the said payment order, and received an order of seizure and collection from the above court (hereinafter “instant collection order”). The above collection order was served on the Nonparty Corporation, the garnishee, on February 22, 2013.

2) A collection order No. 2

A) On October 11, 2013, the Plaintiff filed a lawsuit against the Daejeon District Court 2013da12867 against the ○○ case. The said court rendered a judgment ordering the Plaintiff to pay KRW 46,000,000 and damages for delay thereof. The said judgment became final and conclusive around that time.

B) On March 17, 2014, the Plaintiff received the order of seizure and collection (hereinafter referred to as “the order of seizure and collection”) from the above court regarding KRW 59,132,05, out of the claims for construction cost under the instant contract, which was held by Taeto Land, which was named as the Daejeon District Court 2014TTT3925, with the title of execution. The above order of collection was served on the Nonparty Corporation, the garnishee, the debtor, on March 20, 2014.

E. Deposit for the execution of the Nonparty Corporation

1) From April 28, 2014 to April 29, 2014, Nonparty Corporation conducted a debt confirmation inspection on 2BL landscaping construction and settled the construction cost at KRW 455,978,859.

2) On June 20, 2014, the Non-Party Corporation deposited KRW 379,719,917 remaining after deducting KRW 53,460,942 for direct payments for overdue wages from KRW 455,978,859 for Non-Party Corporation’s ○○○ case and KRW 379,719,917 for repair of defects from the Daejeon District Court under Article 248(1) of the Civil Execution Act (hereinafter “the deposit of this case”).

3) On June 20, 2014, the deposit date of the instant case, the Non-Party Corporation reported the grounds for deposit under Article 248(4) of the Civil Execution Act to the Daejeon District Court. Accordingly, the Daejeon District Court 2014Ma817 (hereinafter “instant dividend procedure”).

F. The order of seizure and collection against the Plaintiff’s claim for payment of deposit money

1) The Plaintiff filed a lawsuit against △△△ in relation to the claim for the amount of the assignee-payment with the Daejeon District Court 2013dan15965. On November 8, 2013, the said court rendered a judgment ordering △△△△ to pay the Plaintiff KRW 46,00,000 and the damages for delay on interest. The said judgment became final and conclusive around that time.

2) On March 25, 2015, the Plaintiff filed an application for a seizure and collection order concerning KRW 65,660,274, among the instant dividend claims that △△△△△△ held against the Republic of Korea, with the title of execution, with the Daejeon District Court 2015TTT4, with the original judgment as the title of execution, and received the order of seizure and collection from the said court.

(g) Preparation of a distribution schedule and the plaintiff's objection to the distribution;

1) On July 28, 2015, the Daejeon District Court prepared a distribution schedule with the content that the dividends amounting to KRW 380,654,168, which is to be actually distributed in the instant distribution procedure (hereinafter “instant distribution schedule”) as follows.

2) The Plaintiff appeared on the aforementioned date of distribution and raised an objection against KRW 30,00,00 among KRW 66,973,751, which was distributed to Defendant Republic of Korea in the second order, and KRW 13,160,00 among KRW 28,538,762, and filed the instant lawsuit on August 4, 2015.

[Reasons for Recognition] The facts without dispute, Gap evidence Nos. 1 through 4 (including each number; hereinafter the same shall apply), Gap evidence No. 11, the purport of the whole pleadings

2. The plaintiff's assertion

A. Defendant Republic of Korea seized the claim for construction price against Nonparty 1 based on the national tax claim against ○○ case. Defendant Republic of Korea received dividends of KRW 66,973,751, 28,538,762 in the second order in the position of the person holding the attachment right against ○○ case. However, since ○○ case paid all national tax related to the above attachment, there is no overdue payment which takes precedence over the statutory due date rather than the Plaintiff’s first and second collection order.

B. Accordingly, Defendant Republic of Korea does not have the right to receive dividends as a seizure authority of ○○top, and Defendant Republic of Korea shall pay the amount apportioned to the Plaintiff in the second order.

3. Ex officio determination on the legitimacy of a lawsuit

A. Of the instant lawsuit, we examine the legitimacy of the part on which the Plaintiff seeks rectification of the distribution schedule in excess of the amount raised on the date of distribution.

B. Only creditors or debtors who have raised an objection as to the distribution schedule on the date of distribution have the standing to be a plaintiff in a lawsuit of demurrer against distribution (see, e.g., Articles 256 and 154(1) of the Civil Execution Act), and seek modification of the distribution schedule with respect to the portion not raised an objection on the date of distribution is an objection against the part on which the distribution has already been completed, and thus, it cannot be deemed that there has been a benefit of lawsuit (see, e.g., Articles 256 and 152(3) of the Civil Execution Act). Therefore, the scope of filing a claim for correction of the distribution schedule in a lawsuit of demurrer against distribution shall be limited to the extent to which an objection against the distribution schedule was raised on

C. As to the Defendant’s distribution schedule of this case on the date of distribution amounting to KRW 30,00,00 out of KRW 66,973,751, as to the Defendant’s distribution amounting to KRW 28,538,762, the Plaintiff raised an objection only to KRW 13,160,000 out of KRW 28,538,762.

D. Of the instant lawsuit, the part demanding the correction of the distribution schedule in excess of the above amounts (hereinafter “the part demanding the correction of the distribution schedule”) is unlawful as there is no standing or legal interest in the lawsuit.

4. Judgment on the merits

A. The burden of proving the grounds for objection to a distribution also complies with the principle of allocation of the burden of proof in general civil procedure. In the event that the Plaintiff claims that the Defendant’s claim was not constituted, the Defendant is liable to prove the facts of the cause of the claim, and where the Plaintiff claims that the claim was invalid or extinguished due to false representation in collusion, the Plaintiff is liable to prove the facts constituting the grounds for disability or extinguishment (see Supreme Court Decision 2005Da39617, Jul. 12, 2007).

B. As mentioned above [Attachment 1], Defendant Republic of Korea seized Defendant Republic of Korea’s claim for the construction payment of this case against Nonparty Corporation based on national tax claims, such as corporate tax, wage and salary income tax, value added tax, etc., which Defendant Republic of Korea has against ○○ building, and the Plaintiff asserted that Defendant Republic of Korea was fully repaid national tax claims related to the above seizure from Thai case.

C. It is insufficient to recognize that ○○ case paid all national tax claims related to the attachment indicated in Table 1 attached to the Defendant Republic of Korea by only the descriptions of evidence Nos. 6 through 10, and there is no other evidence to prove otherwise.

D. Rather, considering the aforementioned evidence and evidence evidence evidence Nos. 5 and the purport of the pleading as a whole, the Defendant’s Republic of Korea’s national tax claim against the Nonparty 1, as indicated in the Defendant’s [Attachment 1], among the national tax claims owned by the Defendant Republic of Korea against ○○ building at the time of seizing the Defendant’s claim for construction price against the Nonparty 1, the following [Attachment 2] claims are acknowledged to have been in arrears until now, and solely on the amount in arrears, the amount in arrears exceeds KRW 95,512,513 (=6,973,751 + 28,538,762) that the Defendant Republic of Korea received dividends in the second priority in the distribution procedure of the instant case. The Plaintiff’s assertion that ○○ building paid all national tax

E. Meanwhile, Article 35(1) of the Framework Act on National Taxes provides that “National taxes, surcharges, or expenses for disposition on default shall be collected in preference to other public imposts and other claims,” and as such, insofar as Defendant Republic of Korea can deem that ○○ case holds national tax claims, Defendant Republic of Korea has the right to receive dividends in the instant dividend procedure prior to the Plaintiff, who is an ordinary creditor.

5. Conclusion

Of the instant lawsuit, the part of the instant excessive claim is unlawful, and thus, the remainder of the Plaintiff’s claim is dismissed as it is without merit. It is so decided as per Disposition.