(영문) 광주지방법원 2016. 11. 03. 선고 2015가합57180 판결

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Title

Conclusion of Pleadings

Imposition of Judgment

Text

Reasons

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(영문) 광주지방법원 2016. 11. 03. 선고 2015가합57180 판결

피압류채권의 존재를 입증할 증거가 부족함.[국패]

Title

It is insufficient to prove the existence of the seized claim.

Summary

In the lawsuit of collection according to the collection order, the existence of the seized claim can not be recognized only by the evidence submitted to prove by the creditor, in the lawsuit of collection according to the collection order.

Related statutes

Article 41 of the Enforcement Decree of the National Tax Collection Act: Procedures for Default under Article 45 of the Enforcement Decree of the National Tax Collection Act

Cases

Gwangju District Court-2015-Annex-57180 ( November 03, 2016)

It must be proved that the loan is a processed loan in accordance with accounting for window dressing; and

There is no proof of the defendant against the defendant.

(b) A third party's assertion of false conspiracy;

Defendant and 000 each other's false misrepresentation (Article 107 of the Civil Act) or false conspiracy (Article 108 of the Civil Act)

(1) The Plaintiff, who is the tax authority, has appropriated the Defendant’s debt, but the Plaintiff and the Defendant 000.

The legal relations of the external form formed and accordingly the accounting books published in the electronic disclosure system of the Financial Supervisory Service.

Based on trust in the report, the defendant who is a third debtor under the National Tax Collection Act; and

to a third party in good faith who has a new legal interest in seizure and collection of claims.

Since there is a need to be protected in accordance with Article 108(2) of the Civil Code.

000 means the state in which a public prosecution was instituted on suspicion of tax evasion and embezzlement as at the time of December 2, 2007, and was imminent.

The defendant was in a situation where psychological pressure and economic difficulty for physical detention were also difficult.

00 Findings of 2007 by way of being aware of the status of such flag, rashness and experience.

As the defendant has given a 000 loan, which is a creditor, to the report, as if there is no such loan.

The assertion that the debt exists in the loan is invalid as an unfair legal act under Article 104 of the Civil Code.

3. Determination

A. Determination as to the plaintiff's assertion as to the existence of seized claims

1) Relevant legal principles and facts of recognition

A) The existence of the seized claim in the lawsuit of collection based on the collection order, the attachment and collection order, is the creditor.

Proof (Supreme Court Decision 2005Da47175 Decided January 11, 2007; Supreme Court Decision 2005Da47175 Decided June 11, 2015)

High Court Decision 2013Da40476 decided Feb. 1, 201

B) Each entry of Gap evidence Nos. 7, 8, 9, 16, and 23 in the above-mentioned facts and each of the aforementioned evidence (A)

In full view of the purpose of the whole arguments and the number of lot numbers, the following facts shall be included:

section 23 of this title.

(1) 000 회장의 비서인 @@@이 작성한 '2002. 12. 31.자 회장님 자금현황'

The loan claim 14,631,026,00 won against the defendant is stated in the note of the defendant.

The balance of the end of each year entered in the standing short-term debt ledger (detailed statement of short-term loans) shall be from 2003.

by 2006 any loan extended to 000 of the defendant listed in each audit report publicly announced by the defendant

same as the calendar.

(2) On the loan from 2007 to 00 groups of regional tax office in 2014, the loan adjustment table, and the statement of audit revision and settlement of accounts, submitted at the time of the investigation of 00 groups of regional tax office

The Defendant’s principal obligation to 205, 2006 'the President’ for the reported tax investigation of 2006 .

It is written to the effect that it is KRW 10,458,319,446 through tax adjustment in 21,096,675,695.

(3) The financial transaction between 00 Construction Group and 000 may be executed separately by the lender group's management general team.

The accounting books drawn up and managed have been managed by the accounting books, and the above accounting books contain approximately KRW 7 billion loans to the defendant from January 1, 1996 to December 31, 2006.

2) Determination as to whether the Defendant’s borrowings against 000 actually existed

First, based on the above relevant legal principles and facts of recognition, the defendant's assertion 000

As to whether a short-term loan actually exists, the facts as seen earlier are examined.

evidence of Gap, evidence 8, 10-3, 15-1 to 4, 16-1 to 3, 22, 25

- 1 to 6, 3, 4, 7, 8, 9, 10-1, 2 of each entry and the purport of the whole pleadings more;

in light of the following circumstances recognized, each audit report of this case was recorded.

Short-term loans against the defendant 000 may be borrowed by the division account of the lender group

(2) If the debtor is a party to the transaction, the debtor shall not be deemed to be a party to the transaction.

this fact in the above 3. A. 1(b) as long as it cannot be ruled out that there is a possibility that the plaintiff may fall under

The evidence alone presented by the court that the defendant's loan against 000 was actually held.

and there is no other evidence to acknowledge it.

A) 000 is operated by the lender group for affiliates such as major shareholders' housing, etc. over several occasions.

In fact, although no funds have been actually borrowed, the account is used for the account of the term "principal short-term obligations" on the account book.

Pursuant to the false loan of funds, accounting books have been operated as if cash has been deposited.

00 which was led by the division accounting of the lender group and the construction of lender is in the same manner as the defendant in this process.

(1) create a false account called a "long-term loan" account in the account books of the corporation; (2)

Money created by dividing the accounting books by means of including a park in the manner of

At the time of lending, the accounting books of the relevant company included the primary short-term loans or paid them as personal funds of 000.

However, such window dressing accounts of 00 construction are structurally divided accounts of related companies.

The defendant's all accounting books until before 2007 also 00.

In light of the fact that the defendant has been managed by the theory, the defendant is also an affiliated company of 00 groups.

It is difficult to eliminate the possibility of accounting of similar forms of window dressing.

B) Funds for relevant companies through window dressing accounts such as 000 & 00 construction, 00 houses, etc.

in the process of assisting 00 group affiliates companies to another company through an account of 000

was deposited, and 000 listed in each Defendant’s audit report from 2003 to 2006

Short-term loans are not only unclear whether the obligations are actually existing, but also exist.

As long as deposits are mixed with each other, only the entry in the defendant's account book shall be 000

It is difficult to readily conclude that a short-term loan actually exists.

C) Each affiliate of 00 Group including the Defendant is a separate independent entity, respectively.

Therefore, even though 000 substantially managed 00 groups affiliated companies including the defendant, the 000 affiliated companies were substantially managed.

even if 00 Group affiliates, including the defendant, engage in a monetary loan transaction with 000

e. have accounting or at least funds, such as keeping the details of the transaction in a financial account book.

In general, it is common to write down and keep evidentiary materials on withdrawals and inflows. However, 00 accounts

A loan to a corporation and 00 accounting corporation for the same 000 in the course of a financial practice by an accounting corporation

evidence of this case is not found at all, and the defendant and the same corporation

any financial transaction with respect to 10 billion won or more even though he borrowed money; and

That is, the fact that the evidence does not remain.

D) Defendant and 00, as asserted by the Plaintiff as the ground for short-term loans against Defendant 000

The details of financial transactions in the Fund shall be as follows:

Date

remitters

addressee

Amount

206.09.20

It argues that the loan must be proved that it is a processed loan due to the window dressing accounting.

B. ① The person acquiring the 'securities' which is the right to claim compensation under section 125(1) of the Capital Markets Act is newly issued.

applicable only to a person who acquired securities in response to public offering or sale of such securities.

The defendant shall bear the burden of proof by applying the provision on conversion of the same burden of proof to the plaintiff who is not the acquisitor

(2) The State which trusted financial statements and engaged in seizure and collection activities shall also be

The acquisition of securities to be protected by law and the same object in the purpose and purpose of the legislation.

Since there is no ground to acknowledge the extension of the above provision, the plaintiff's above assertion is asserted.

There is no reason for body.

3) The difference between the Defendant’s primary short-term loans since 2007 and the Defendant’s primary short-term loans by the end of 2006

Whether the deposit is the same obligation as the deposit;

At home, by the year 2006, there is a short-term loan obligation against the defendant 000

In 2006, the principal short-term loans as stated in the Defendant's audit report after 2007.

1.2 1 Does as to whether or not the defendant's debt against 000 is the same as the loan

50 accounting corporation of this court, each of the above facts, written evidence Nos. 5 and 11;

The result of each fact-finding with respect to 00 accounting corporation and the purport of the whole oral proceedings are as follows:

In light of the above circumstances, the facts set forth in the above 3. A. 1(b) and only the evidence submitted by the plaintiff are presented.

as soon as possible, the principal and the short-term loans entered in the Defendant’s financial statements, etc. since 2007

It is recognized that the amount of KRW 10.4 billion is the same as the loan to the defendant by 2006.

and there is no other evidence to acknowledge it.

A) An audit report for the fiscal year 2007 in which the Defendant’s auditor was the 00 accounting corporation until 2007.

'The account of 'the short-term loan' of 'the existing 'the short-term loan' account' of 'other specially related persons.

was revised to the extent that there was no evidence of the loan against the above 000

This seems to be due to the fact.

B) The defendant's re-appellant selected as the defendant's auditor in the business year 2008 and performed in 2007

00 accounting firms in charge of death without office shall be the previous auditor in the course of the financial affairs and the previous auditor.

an audit report of 2006 to the defendant 10.4 billion won which is described as a loan for 000

(1) Details of passbook transactions: (3) Excursion and oral evidence, such as a written loan agreement, etc.

The request was made, but no answer was received.

C) 00 accounting corporation: ① The defendant's debts of 10,458,319,446

It is stated that there is no specific evidence for the borrower, and it is not clear that the creditor is the creditor.

loans to 00 to 200 to 200 to 200 to 200 to

The loan was classified as the loan borrowed from the deposit to the related party; Provided, That the creditor of the loan was not divided.

If the order is subsequently issued, it is likely that the relevant creditor may exercise his/her rights with evidentiary materials;

(3) The tax authorities also tried to verify the loan of 000 through the tax investigation three times from 2008 to 2014 in the course of collecting the relevant delinquent tax and fines on 000, but did not find any evidentiary data; (4)

The above borrowed money is currently not clear of the creditor, and a separate financial transaction (the passbook details) and a cash consumption account.

Inasmuch as there is no agreement, 'gains exempted from obligations' at the time of settlement of accounts in 2018 following the creditor protection procedure.

It is the plan to extinguish the related borrowings from the account book by treating them.

D) Evidence No. 17, which the Plaintiff cited as one of the grounds for the instant loan (the Defendant’s above)

Although disputing the authenticity of the written statement, the authenticity of the written statement can be recognized in light of the overall purport of the pleading.

Therefore, 000 as written by the Plaintiff is written on the basis of the facts supporting the facts.

The supplementary intervenor and the creditor of the short-term loan of this case, who are directly interested in the defendant

Considering that the relationship has a relationship, it is difficult to believe it as it is.

4) Sub-committee

Therefore, insofar as the existence of a claim against the defendant of 000 is not recognized, the same shall not apply.

The plaintiff's claim for the payment of the seizure money of this case was added to the defendant's defense of extinctive prescription.

(1) The reason is without merit.

B. Determination of the third party's assertion of false conspiracy

Domination, Domination and Domination under Article 108 of the Civil Code, on the premise that there is a declaration of intention.

The evidence submitted by the plaintiff, 000 and the defendant's loan obligations.

just because it was stated, a statement of intent subject to false conspiracy between 000 and the defendant

With respect to an expression of such intent, whether it has the same appearance as that of the market

It is insufficient to recognize that there has been any agreement between 000 and the defendant, and otherwise

Since there is no evidence to prove the existence of false indication, the plaintiff's above assertion is without merit.

C. Determination on the assertion of unfair legal act

1) In order to constitute an unfair legal act under Article 104 of the Civil Act, the person who is a party to a legal act

The Court has been in the state of gambling, rashness, or inexperience, and the other party is aware of such circumstances.

There is a significant imbalance between the payment and the consideration.

must be held (see, e.g., Supreme Court Decision 2002Da38927, Oct. 22, 2002).

2) Domins, Domins, Domins, and Domins as it is difficult to conduct psychological and economic difficulties around December 2007, 190.

There is no evidence to deem that the examination was in a state of examination, and even if so, it is alleged by the Plaintiff.

Over the above-mentioned 000 Audit Report in 2007, knowing the above 000 Rose of Sharons;

the loan set forth in section 000 above, even if the loan was created as if there is no such loan,

Since it is difficult to see that the defendant's act constitutes a juristic act, the plaintiff's above assertion is without merit.

(c)

4. Conclusion

Therefore, the plaintiff's claim against the defendant is dismissed as it is without merit. It is so ordered as per Disposition.

shall be ruled.

Plaintiff

The Intervenor joining the Plaintiff

Korea

Defendant

00 Stock Company

Materials, such as borrowings, loans tax adjustment table, and statements of audit adjustment and settlement of accounts, x-cell files, etc.

In full view of the above tax adjustment, the defendant's settlement of accounts after 2007 and other special

The 10,458,319,446 won is the short-term loan against the defendant's 000.

D) Part of the money created by 000 000 Ga-parks by appropriating a park

Of them, a sum of 3.7 billion won in the defendant account on September 20, 2006 and December 11, 2006 shall be deposited as a provisional deposit.

Since 2006, there were specific details of money transactions between 000 and the Defendant.

In light of the above, the defendant's debt against 000 actually existed.

E) Article 125 of the Financial Investment Services and Capital Markets Act to protect the other party who trusted the financial statements disclosed:

An investor who has acquired securities by reliance on false financial statements included in a registration statement, an investment prospectus, etc.

to the extent that the investor proves the intent or negligence of the persons involved in the window dressing accounting

In addition, the window dressing accounting-related persons have fulfilled their duty of due care, despite the fact that they have fulfilled their duty of due care.

The defendant has a special provision that establishes the fact that he could not know the fact.

(1) The Financial Investment Services and Capital Markets Act intends to protect the Plaintiff who trusted and seized and collected financial statements;

and its purpose of legislation and purpose are the same, so the burden of proof has been converted, and the defendant has become the defendant.

1.5 billion won

December 11, 2006

220 billion won

209.07.01

6.6 billion won;

o October 30, 2007

16.5 billion won

22, 209.01

1.7.7 billion won

The defendant received from 000 on September 20, 2006 and December 11, 2006

The cost of detention (1.5 billion won on September 20, 2006 + 2.2 billion won on December 11, 2006) shall be immediately on the date all deposits are made.

The same amount is withdrawn and there is a doubt as to whether it is deposited as a true loan.

Taking into account the flow of funds revealed in the course of window dressing accounting of 000 and 000

(2) The possibility of funds introduced in the course of embezzlement through window dressing accounting cannot be ruled out)

7. 1. The defendant received 660 million won from 000,000 won, and all of October 22, 2009, which were three months after the payment.

(3) If the Plaintiff did not borrow money from 000, the Plaintiff is deemed to have been repaid.

Since there was no reason to deposit KRW 1.65 billion with the account of 000 October 30, 2007, there was no reason to deposit KRW 1.65 billion.

The defendant alleged that he had intentionally borrowed money against 000, but the defendant on October 30, 2007

After making a deposit of KRW 1.65 billion, 000 on November 20, 2007 and February 26, 2008 to the defendant

KRW 1,686,712,597 (i.e., KRW 690,00,000 on November 20, 2007 + KRW 8,543,830 on November 20, 207 + + KRW 8,543,830 on November 207

26. 98,168,767 won deposited by the defendant in light of its amount and circumstances.

The above KRW 1.65 billion appears to be the amount loaned by the defendant to 000, and ⑤ the defendant's 2009.

1. 177,100,000 won deposited from 000. 22. 177,100

in the course of selling the shares issued by such corporation to a reticulate cement corporation;

to pay the advisory fees of KRW 231,000,000 and three employees of the global corporation;

50% of the amounts of gold 123,200,000 shall be deemed to correspond to each 50% of the amounts to be borne by 000

In full view of the above financial transactions, there is a loan against the defendant 000 on the basis of only the above financial transactions.

It is difficult to see that it is re-existent.

E) From January 1, 200 to December 31, 2006, the entry is made in the management account books of 00 construction during the period from January 1, 200 to December 31, 2006

Re-paid 00 and the Defendant’s details of the capital transactions, ① from January 14, 200 to May 25, 2001

most of the entries during the period do not have any specific financial transaction details, and therefore the books are recorded.

(2) From January 1, 2002 to December 31, 2006, as well as from January 1, 2002.

record during the period also includes KRW 1.5 billion on September 20, 2006, KRW 2.2 billion on December 11, 2006, as seen earlier.

(3) The entries in the above books are written.

The details of the short-term debt ledger submitted by the Plaintiff are inconsistent with those of the short-term debt ledger

In financial transactions entered in the management account book as a whole because the content of the statement itself does not coincide;

the actual loan details against the Defendant 000 are reflected and stated in the calendar.

It is difficult to do so.

F) Evidence No. 17 and No. 22, which the Plaintiff cited as one of the grounds for the instant loan, is guest

Preparation of the above content certification, as well as the mere fact that there is no evidence to prove the content;

000 directly with this case as a supplementary intervenor of the Plaintiff and a creditor of the Defendant’s debt

Considering that there is a personal interest, it is difficult to believe it as it is.

G) When considering the change of the burden of proof under Article 125 of the Financial Investment Services and Capital Markets Act, the Defendant

Conclusion of Pleadings

o October 13, 2016

Imposition of Judgment

November 03, 2016

Text

1. The plaintiff's claim is dismissed.

2. The costs of the lawsuit shall be borne by the Plaintiff, including the costs incurred by participation.

The defendant of the Gu office shall pay to the plaintiff 10,458,319,446 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

Reasons

1. Basic facts

A. The plaintiff's notification of seizure of claims against the defendant

1) On June 3, 201, the Plaintiff’s assistant intervenor did not pay capital gains tax and gift tax according to the results of the tax investigation conducted by the investigating country of 00 regional tax office while serving as the president of 00 group including the Defendant. On June 3, 201, the Plaintiff’s loan claims against the Defendant within the limit of 32,682,428,920 won in accordance with the procedures for disposition on default under the National Tax Collection Act and of 000 won in addition to 000 00 00 02-2000 00 000 00 000 000 , 2000 00 , 300 , 200 , 400 , 00 , 00 , 00 , 00 , 00 , 00 , 00 , 00 , 00 , 200 , 200

(3) On May 28, 2014, the Defendant denied the Plaintiff’s claim through the “written reply to the effect that the Defendant did not have any obligation relationship with the above 000,” and a reply to the notification of attachment. On June 13, 2014, the head of the tax office notified the Plaintiff of the maintenance of the effect of the attachment of claims to the effect that the attachment of claims took effect pursuant to Article 42 of the National Tax Collection Act, and the effect of the attachment is maintained, and the performance against 00, the obligee is prohibited.” However, the Defendant again denied the above claim through the “ reply to the notification to the maintenance of the effect of the attachment of claims” as of June 20, 2014.

4) Upon the Defendant’s refusal to comply with the Plaintiff’s request, the head of the 00 tax office notifies the Defendant of the seizure of claims similar to the Defendant on March 10, 2015, and on June 15, 2015, each of the above notification reached around that time, but the Defendant rejected the Plaintiff’s request for seizure and collection of claims.

5) Tax claims, such as capital gains tax, gift tax, global income tax, etc. against the Plaintiff 000 amounting to KRW 22,138,118,430 as of the present.

B. The defendant's establishment process and the window dressing accounting of 00 construction

1) The 000, which actually controlled 00 groups including 00 Construction Co., Ltd. (hereinafter referred to as '00 construction') and affiliates, was established as a 00 overall construction of 00 groups, a telegraph of 1981, and was established on January 5, 200 for the purpose of running a golf course business, and the above salyang C Co., Ltd. was changed to the defendant on August 5, 2002.

By 2007, the above 00 construction managed the general accounts of 00 groups including the defendant, and transferred the defendant's accounting management to the defendant on June 11, 2007 when the tax investigation of 00 groups was conducted.

2) In the process of the above tax investigation, 000 was prosecuted for violating the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) and the Act on the Aggravated Punishment, etc. of Specific Crimes (Embezzlement), and the Act on the Aggravated Punishment, etc. of Specific Crimes (Embezzlement) in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Embezzlement). On December 30, 2008, the court was sentenced to a conviction of five years of suspended execution and a fine of about 50 billion won in the three years of imprisonment with prison labor as of December 30, 2008, and the appellate court was sentenced to a conviction of about 5 years of a suspended sentence and a fine of about 25.4 billion won in the judgment of 200 high court 209No000 (hereinafter referred to as the "criminal judgment of this case").

1) From 2003 to 2007, Nonparty 00 accounting corporation and Nonparty 00 accounting corporation for the period from 2008 to 2014 prepared an audit report by an external auditor for the Defendant’s financial statements (hereinafter “each audit report of this case”). The audit report of this case was published in each time through the electronic disclosure system and examination of the Financial Supervisory Service.

2) The Defendant’s audit report from 2002 to 2006 included the Defendant’s short-term loans in each of the following categories: (a) among them, the amount entered in the account’s account subject for shareholders’ loans to 000 is as listed below.

Name

Account Titles

Account Statement

Amount (won)

200200000 Short-term loans borrowed by stockholders

14,980,890,000 Short-term Loans with stockholders’ loans 2003000

14,582,394,000 Short-term Loans extended by 2040000 Shareholders

6,788,635,000 200500 Short-term Loans made by stockholders

17,309,708,000 Short-term Loans from 20060000 Shareholders

21,096,676,000

3) The Defendant’s audit report in the year 2006 stated KRW 21,096,675,695 of short-term shareholders’ loans in 000. However, the Defendant’s audit report in the year 2007 included KRW 40,136,494,000 of the Defendant’s short-term loans as “other specially related persons” without distinguishing the lender.

For the period from 2007 to 2014, the details of the Defendant’s respective audit report, the Defendant’s “other specially related persons,” which was disclosed, are as listed below.

Name

Details of accounts;

Account Statement

Amount (won)

207 Separated note