Daejeon District Court-2015-Gohap-107025 ( March 20, 2016)

In a lawsuit of demurrer against distribution, the burden of proof

(1) In the event that the plaintiff asserts that his claim was not established, it is not sufficient to recognize that the delinquent corporation has repaid all national tax claims in this case, and there is no other evidence to acknowledge it.

Article 35 of the Framework Act on National Taxes

Daejeon High Court 2016Na14186 Demurrer against distribution

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Korea

National Rotations

2017.04.26

2017.05.31

1. The plaintiff's appeal is dismissed.

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

[Claim]

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.

【Purpose of Appeal】

Of the judgment of the court of first instance, the part against the plaintiff seeking the following change shall be revoked. Of the distribution schedule prepared by the same court on July 28, 2015, the amount of 66,973,751 won, 28,538,762 won, 15,378,762 won, shall be corrected as 36,973,751 won, 15,762 won, and the amount of dividends against the plaintiff shall be corrected as 43,160,00 won (the plaintiff shall be corrected as 43,160,000 won (the date of first instance trial of this court shall be excluded from the scope of the judgment of the court) shall be corrected as 46,973,751 won, and this part shall be excluded from the scope of the judgment of the court).

1. Quotation of judgment of the first instance;

The reasoning of this Court concerning this case is that the corresponding part of the judgment of the court of first instance is identical to that of the corresponding part of Article 420 of the Civil Procedure Act, except for the dismissal of the part of "D" in Article 8 of the judgment of the court of first instance as follows.

2. Parts in height:

In addition to the aforementioned evidence and the statement in Eul evidence Nos. 5 through 13 (including the number of branch numbers if there is a serial number), when the Defendant seized the claim for construction price against △△△ corporation, the claim recorded in the national tax claim against △△ case remains as indicated in the same table on June 20, 2014, which was the date of reporting the reason for deposit of the instant dividend procedure case, and even on July 14, 2015, the additional amount remains, and the fact that there still remains and there is an additional amount. However, the amount in arrears alone exceeds 95,512,513 won (=6,973,751 won +28,538,762 won) paid by the Defendant in the second priority in the distribution procedure of this case.

Therefore, we cannot accept the Plaintiff’s assertion that △△ case paid all national taxes owed to the Defendant.

On the other hand, all of the national tax claims in arrears as above are claims in preference to the plaintiff who raised an objection to distribution with the status of a general national tax creditor. In this case, even if the tax office divided the national tax claims in arrears according to the distribution schedule into the pertinent tax office and entered the dividend amount, it shall be deemed that the total sum of the national tax claims in arrears is not the amount distributed in the position of a creditor separate from the defendant, but the amount distributed to the defendant in preference to the

Therefore, in this case, a lawsuit of demurrer against a distribution on the amount distributed to the competent tax office under the distribution schedule shall be brought against the defendant who has the status of creditor, and cannot be brought against the competent tax office which is only the defendant's internal organ. On the other hand, in determining the propriety of the amount distributed to the defendant, the propriety of the distribution schedule should be determined based on the whole amount distributed to the defendant who has the status of creditor as the sum of the amounts distributed to the plaintiff as the sum of the amounts distributed in priority over the plaintiff, not by the relevant tax office which is only the internal organ of the defendant. Therefore, even if the amount distributed erroneously to the relevant tax office under the distribution schedule is the sum of the national taxes in arrears by the tax office, so long as the sum distributed to the defendant exceeds the amount actually distributed to the defendant, as long as the sum distributed to the defendant exceeds the amount actually distributed to the defendant, it shall not be corrected to rectify the distribution schedule by accepting the plaintiff's objection against distribution, which is a subordinate creditor, and by

3. Conclusion

Therefore, the plaintiff's claim falling under the scope of the judgment of this court shall be dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.