Any portion exceeding the amount of seizure stated in the notice of claim attachment shall not be subject to attachment.

Considering that the portion exceeding the amount of seizure stated in the notice of attachment of claims was seized even when the amount exceeds the amount of seizure stated in the notice of attachment of claims is deemed to have sufficient room for doubt in light of the social average person with ordinary dysylology, this part of the deposit claims

2013 Gohap201215 Demurrer against distribution

○ Trust Company

Korea

2013.08.21

2013.09.04

1. Of the distribution schedule prepared by the said court on April 12, 2013 with respect to distribution procedures for Suwon District Court Branch Branch 2013Tae-101, the dividend amount of KRW 1,980,758,350 on the ○○ Tax Office was corrected to KRW 1,531,00,000, and KRW 449,758,350, respectively.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. The plaintiff's claim attachment and assignment order

1) On March 9, 2012, the Plaintiff received a provisional attachment order on KRW 3,783,816,13 of the deposits held by Suwon District Court Branch Branch 2012Kadan50213 (hereinafter referred to as “○○ Bank”) against ○○ Bank (hereinafter referred to as “○○ Bank”).

2) On December 21, 2012, the Plaintiff was issued an order for the seizure and assignment of the above provisional seizure to the non-party company based on the executory exemplification of the judgment in the damage compensation case of the Suwon District Court, Suwon District Court Branch Branch 2012TTT 16193, which became final and conclusive on January 12, 2013. The above order was served to the ○○ Bank on December 26, 2012, and became final and conclusive on January 12, 2013.

(b) Attachment of claims by the head of ○○ Tax Office’s disposition on default of national taxes.

(1) On September 21, 2012, in order to secure the following national tax claims against the non-party company, the head of the ○○ Tax Office under his control issued a seizure disposition prior to the determination of national tax pursuant to Article 24 of the National Tax Collection Act (hereinafter “instant seizure”) with respect to the deposit claims against the non-party company, and notified it to the ○ bank on the day. The pertinent contents of the notice of attachment of claims (hereinafter “instant notice of attachment of claims”) are as follows; 2) On December 16, 2012, the head of the ○○ Tax Office issued the notice of attachment of claims to the non-party company on December 16, 2012.

3) After that, the director of the ○○○ Tax Office, with respect to the deposit claims against the non-party company’s ○○ Bank, seized the claims based on the disposition of national tax in arrears in the amount of KRW 4,235,00,000 on December 27, 2012. On that day, he notified the ○○ Bank of the seizure. On January 18, 2013, the seizure of claims based on the disposition of national tax in arrears in the amount of KRW 9,508,815,389 on January 18, 2013, and notified the ○ Bank of the seizure

(c) Deposit of the ○ Bank;

○○ Bank deposited KRW 1,978,307,435 as 206, pursuant to Article 248(1) of the Civil House Administrative Court Act on the ground that the creditor cannot be identified without negligence on January 24, 2013, who received the notification of the attachment of the claim against the non-party company’s deposit claim against the non-party company’s ○○ Bank.

(d) Distribution procedures for deposit money;

1) On March 20, 2013, the head of the ○○ Tax Office submitted an account statement of the amount of national tax claims against the non-party company to the competent administrative court under the distribution procedure (hereinafter “instant distribution procedure”) for the deposit money of the ○○ Bank to the Suwon District Court, Sung-nam Branching 2013ta-Ma101 (hereinafter “the distribution procedure”).

2) During the instant distribution procedure, a member of the House Administrative Court prepared a distribution schedule with the content that the dividends amounting to KRW 1,980,758,350, excluding the execution cost on the date of distribution opened on April 12, 2013, was distributed as follows.

3) The Plaintiff appeared on the aforementioned date of distribution and raised an objection against KRW 449,758,350 out of the amount of distribution on the ○○ Tax Office, and thereafter filed a lawsuit of demurrer against the distribution on April 18, 2013, which was seven days thereafter.

2. Determination on this safety defense

Since the plaintiff was present on the date of distribution of the distribution procedure in this case and did not raise any objection against the distribution schedule, the defendant set up a defense prior to the merits that the plaintiff was not entitled to file the lawsuit in this case. The plaintiff was present on the date of distribution and raised an objection in person against the distribution schedule (see Supreme Court Decision 2001Da63155, Sept. 4, 2002). The plaintiff appeared on the date of distribution and raised an objection against the distribution schedule in person (see Supreme Court Decision 2001Da63155, Sept. 4, 2002). Thus, the defendant's safety defense against the defendant is without merit.

3. Judgment on the merits

A. The parties' assertion

1) The plaintiff's assertion

As stated in the notice of the attachment of this case, the head of ○○ Tax Office limited the number of the claims to KRW 1,531,00,000 in the attachment of this case as stated in the notice of the attachment of this case. As such, the effect of the attachment of this case shall only extend to the claims of KRW 1,531,00,000 out of the deposits against the non-party company ○○ Bank. Therefore, the above distribution schedule shall be corrected to be distributed to the Plaintiff.

2) The defendant's assertion

In light of the overall purport of the notice of the attachment of claims in this case, the attachment report does not contain any indication that limits the scope of validity of the attachment of this case, and in light of the overall purport of the notice of attachment of claims in this case, the entry of the column of the amount of attachment in the notice of attachment of claims in this case is merely an obvious clerical error, and ○○ Bank notified of the above attachment of claims by the head of ○○ Tax Office was well aware of this fact, the attachment of this case shall be effective

B. Determination

Article 41(1) of the National Tax Collection Act provides that the head of a tax office shall notify the obligor of the attachment of the claim (hereinafter referred to as the “third obligor”). Article 41(2) provides that “When the head of a tax office notifies the obligor of the attachment under paragraph (1), he/she shall subrogate the obligee who is the defaulted taxpayer to the extent of the delinquent amount.” Article 42 of the same Act provides that “the effect of the attachment of the claim shall accrue when the notice of attachment is served on the third obligor.” Article 14(2) provides that “The head of a tax office may attach the property of the obligor to the extent of the estimated amount of national taxes if it is deemed impossible to collect national taxes after the determination of the tax amount due to any cause falling under any subparagraph of Article 14(1).” Article 41(2) provides that “The head of a tax office shall, if the obligor seizes the property under paragraph (2) of the same Article, specify the amount of money to be attached to the obligor’s account subject to attachment, and thus, it should be objectively interpreted to include the amount of the obligor’s claim subject to attachment.

The facts that the head of ○○○ Tax Office served the notice of attachment of the instant claim, stating the amount of 1,531,00,000 won up to the amount in arrears (including any increased additional charges and expenses for disposition on default added later) including the amount to be deposited at present and in the future with respect to the account held by the non-party company to the third debtor in the indication column of attachment claim are as seen earlier. Furthermore, according to the evidence No. 3, the ○○ Bank deposited the deposit amount of the non-party company to the non-party company to the non-party company to the non-party company to the non-party company to the non-party bank, and it is recognized that the ○○ Bank deposited the amount of the instant attachment amount of the non-party company to the non-party company to the non-party company to the Sungwon District Court after reporting the reasons pursuant to Article 248(3) of the Civil home Administrative Court Act to the non-party company to Sung○○ Bank, the effect of the attachment of this case to be limited to KRW 1,531,0000,000.

In light of the above legal principles, it is apparent that the phrase “a claim to be seized” under the seizure of this case includes a claim of KRW 1,531,00,000, out of the deposit against the non-party company’s ○○ Bank, from an objective perspective, and that the part exceeding the above is also seized. As such, it appears that there is sufficient room for doubt in light of the general principle of social average, it cannot be interpreted that this part of the deposit claim is subject to seizure.

3) Therefore, the part of the distribution procedure in this case, out of the amount of KRW 1,980,758,350 that the Defendant actually received as dividends exceeding the above KRW 1,531,00,000 out of the amount of KRW 1,531,00,00,000, other than the execution cost, shall be deemed unlawful. On December 21, 2012, the Plaintiff received the attachment and assignment order of the above amount of KRW 3,783,816,133 among the above deposits, and the order was served on ○ Bank, which was prior to the attachment of the claim due to the disposition of national tax in arrears by the head of ○○ Tax Office, on December 26, 2012, the amount of dividends to the Defendant was delivered to the ○ Bank, which is the garnishee, the third debtor on December 26, 2012. Therefore, the amount of dividends to the Plaintiff should be corrected to KRW 1,531,00,000,00.

4. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.