Incheon District Court 2013 Gohap3382 ( October 22, 2013)

Any person who obtains a false collateral security from a delinquent taxpayer is liable to return compensation for the expropriation of the land.

(1) As the right to collateral security under the name of the Defendant is based on a false declaration of intent between the delinquent and the delinquent, or is null and void because there is no secured claim, so the Defendant is obligated to return the land compensation received by the mortgagee to the Plaintiff who subrogated the delinquent taxpayer in order to preserve his/her capital gains tax claim.

Article 404 of the Civil Act

2013Na2025451 Undue gains

Korea

00AA

Incheon District Court Decision 2013Gahap3382 Decided October 22, 2013

April 25, 2014

June 13, 2014

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The defendant shall pay to the plaintiff 213,501,840 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. The party's assertion

A. The plaintiff

The Defendant received part of the compensation as a mortgagee upon the establishment of the right to collateral security on the land owned by the Defendant, and the land was expropriated through consultation. However, the above right to collateral security is null and void because it was based on a false declaration of intent between the Defendant and the largestB or it did not exist any secured claim. As such, the Defendant is obliged to return the compensation received by the Plaintiff who subrogated to the largestB in order to preserve the right to collateral income tax on the largestB.

B. Defendant

Since the Defendant’s receipt of land compensation is subject to the gift contract with the largestB, the Defendant has a legal ground to hold the land compensation.

2. Facts of recognition;

A. The relationship between the largestB and the defendant

LB is the mother of KimCC who is the defendant's spouse, i.e., the largestB and the defendant are in a satch relationship with Satnish.

B. Defendant’s acquisition of collateral security

"B" around September 17, 2002 *** the Gu** the Gu* 5* the preceding 3* 3,795 square meters (hereinafter referred to as "the land in this case") was awarded at a voluntary auction and completed the registration of ownership transfer after being awarded a successful bid for the sale of the land in this case." The lowestB made himself to ○○ Fisheries Cooperatives (hereinafter referred to as "○○○ Fisheries Cooperatives") as the debtor with respect to the land in this case, the maximum debt amount of KRW 130 million on January 27, 2003 and KRW 156 million on July 13, 2004, respectively, completed the registration of establishment of a mortgage on March 3, 2005.

With respect to the land of this case, the LB made the Defendant liable for the registration of the establishment of the mortgage on March 3, 2005, the maximum debt amount of KRW 91 million, and KRW 52 million on February 12, 2007, and the maximum debt amount of KRW 130 million on August 29, 201, respectively.

On August 8, 2011, 201, LB had the Defendant complete the registration of the establishment of a collateral (hereinafter referred to as the “mortgage”) of the maximum debt amount of KRW 800 million with respect to the instant land as the debtor.

On the other hand, on September 9, 2010, the maximum BB completed the registration of creation of a collateral of KRW 500 million with respect to the instant land to the Defendant as the debtor, but the collateral was cancelled on August 25, 201, prior to the completion of the instant collateral security.

C. Payment of land expropriation and expropriation compensation

On May 26, 2010, the Minister of Land, Transport and Maritime Affairs published the designation, etc. of the Bogeumjari Housing District****Gu*** Dong** Dong Dong Dong ** the public announcement of approval of the district plan on November 15, 2010.

In around 2011, LB agreed with the △△△ Urban Development Corporation (hereinafter referred to as the “△△△ Urban Development Corporation”) on the expropriation of public land in this case, and the Central Land Expropriation Committee decided to expropriate the land in this case on October 28, 201.

On December 15, 2011, the LB made a claim between the △△ Urban Corporation and the Defendant, the mortgagee of the instant case, for the expropriation adjudication amounting to KRW 1,228,821,00,00 (cash 381,821,000 + KRW 41,000,000 in cash) against the Defendant, and the balance shall be paid to the Defendant, and the Defendant shall pay the maximum B, and the Defendant shall pay the balance to the Defendant. The Defendant agreed to cancel the registration of the establishment of the creation of the creation of the above service in the name of the Defendant (one unit No. 381,821,00 in + KRW 436,00 in securities account) on the same day. The LB made a claim for the first payment to the △△ Urban Corporation to deposit the amount to be paid to the △△ Urban Corporation with the Defendant, and deposited the amount to be paid to the △△ Urban Corporation in the name of the Defendant’s account (one,000,00 won in securities account).

On December 20, 2011, the △△ City Corporation deposited into each account at the request of the largestB, and the instant collateral security was cancelled on December 16, 201 due to termination, and each of the instant collateral security rights in the name of the ○○ Fisheries Cooperative was cancelled on December 19, 201.

(d) Default of capital gains tax obligations of the largestB;

The head of Incheon District Tax Office, the Plaintiff-affiliated, on December 31, 2012, notified the transfer income tax of KRW 193,740,360 (including the special rural development tax of KRW 11,286,070) by the due date on December 31, 2012. As of the closing date of argument in the trial, the delinquent tax amount of KRW 213,501,840, including the additional tax of KRW 19,761,480, and the highestB is insolvent.

[Facts without dispute over recognition, entry of evidence A to 1 through 6, purport of the whole pleadings]

3. Determination

A. In light of the status relationship between the Defendant and the BB as seen above and the following circumstances revealed in the evidence revealed prior to the establishment process of the instant right to collateral security, it is insufficient to recognize the Defendant’s assertion that the Defendant received part of the compensation with the maximumB, and there is no other evidence to prove otherwise. Moreover, even upon examining all the evidence submitted at the first instance court and the appellate court, there is insufficient proof as to the secured claim of the instant right to collateral security. Rather, the instant right to collateral security is either by a false declaration of intent or without the secured claim, and it is reasonable to view that the Defendant obtained profit by receiving money equivalent to the amount of compensation from the maximum B without any legal ground, and thereby, incurred loss to the maximum B.

① After the public announcement of designation of a district, the right to collateral security of KRW 500 million was established with respect to the Defendant as the obligee, and the right to collateral security of this case was terminated before the adjudication of expropriation was made.

② According to the evidence evidence evidence Nos. 3 and 4, the defendant stated that he received gift tax amounting to KRW 685 million from the largestB, such as appropriation of part of the land and building acquisition funds to KRW 382 million received from the largestB on October 22, 2013 *** former ** 8* Dong 8*** 65 million, and in this regard, the defendant issued a gift tax amounting to KRW 685 million on the ground that he received a gift amounting to KRW 685 million from the largestB. However, according to the evidence No. 7 evidence, the defendant, around May 9, 2013, stated that the spouse was given a donation of KRW 50 million and KRW 65 million, and that the remainder of the money transfer funds from KRW 550 million and KRW 605 million, as well as the money transfer funds from KRW 600,500,000,000,*6650,000,*60,0000*6.

③ Since July 23, 2013, the time when the Defendant brought the instant lawsuit, the said gift tax was imposed only on the basis of the statement that the Defendant received a gift after the filing of the instant lawsuit.

④ Although the Defendant alleged that the maximumB’s loan was made by the Defendant, and that the acceptance compensation was made by the Defendant, the Defendant succeeded to the loan to the largest BB’s ○○○○ Cooperative by contract acceptance, the above loan obligation was paid to KRW 436,00,000 as compensation for expropriation of the instant land, not the money contributed by the Defendant.

B. Therefore, the Defendant is obligated to refund the Plaintiff, who subrogated to the largestB, the amount of capital gains tax of the largestB, 213,501,840 won, which is the amount of capital gains tax of the largestB, as unjust enrichment, and the damages for delay calculated by the rate of 5% per annum under the Civil Act from the day following the day when this judgment is finalized to the day of full payment, as requested by the Plaintiff.

4. Conclusion

The plaintiff's claim must be accepted. The judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed.