Litigation of Claim for Transfer of Money

The transferor’s delinquent taxes may also be appropriated for the national tax refund by the transferor, which occurred after the transfer of national tax refund claims.

The contents of the judgment are the same as attachment.

2013Guhap14451 Receiving money

* Trust (State)

Korea

December 2, 2016

December 11, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant shall pay to the plaintiff 2,854,437,520 won with 5% interest per annum from September 12, 2012 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. AAAB construction project (hereinafter referred to as "the project in this case") in Suwon-si, Suwon-si, Suwon-si, which is the implementer of the project in this case.CC Construction Co., Ltd. (hereinafter referred to as "CC Construction") is the contractor of the said new project, and the plaintiff is a trust company entrusted with the said new project site and apartment.

B. On March 24, 2011, Nonparty Company: (a) had the name of the instant project implementer betweenCC Construction and the Plaintiff.

A claim for refund of value-added tax arising in connection with the project of this case shall be changed to the plaintiff

I prepared a written agreement of transfer.

C. On April 4, 2012, Nonparty Company submitted to the head of the Suwon Tax Office (hereinafter “head of the Suwon Tax Office”) affiliated with the Defendant a written request for transfer of the national tax refund to the Plaintiff, stating that the amount of KRW 4,052,529,518 of the value-added tax expected for the first period of 2012 is transferred to the Plaintiff.

D. On July 25, 2012, the non-party company is converted to the head of the Suwon Tax Office on July 25, 2012 in the first taxable period of 2012.

3,149,687,429 won (hereinafter “instant national tax refund”) was returned to the head of Suwon Tax Office on July 26, 2012, and submitted to the Plaintiff a written request for transfer of national tax refund to the effect that the instant national tax refund is transferred to the Plaintiff.

E. On July 31, 2012, Nonparty Company merged DD Co., Ltd. (hereinafter “DD”), and completed the registration of the merger on August 3, 2012, Nonparty Company succeeded to the above DD’s default tax amounting to KRW 2,854,437,520 at the time of the merger (hereinafter “instant default tax”).

F. On August 27, 2012, the head of the Suwon Tax Office appropriated the instant tax refund for the arrears of the national tax refund of the instant case (hereinafter “instant appropriation”) and then on September 11, 2012, notified the Nonparty Company of the appropriation for the national tax refund.

On September 11, 2012, the notice was sent, and on September 1, 2012, the remaining balance was paid to the Plaintiff KRW 296,285,510.

Facts that there is no dispute over the basis of recognition, evidence A 1 through 5 (including each number in case of a tentative number), each entry of evidence B 1 through 4, and the purport of the whole pleadings.

2. The assertion and judgment

A. The plaintiff's assertion

(1) Article 51 (2) 2 of the Framework Act on National Taxes provides that delinquent national taxes, additional dues and disposition fees for arrears shall be appropriated, and the meaning of delinquent national taxes shall be interpreted as "national taxes already in arrears at the time of the determination of national tax refund." However, there is room to interpret that "it may be in arrears after the request for transfer" is against the principle of clarity, and Article 51 (2) delegates the same to Presidential Decree without clearly stipulating the timing and scope of specific appropriation. Thus, the above provision is unconstitutional since it violates the principle of prohibition of comprehensive delegation.

(2) Before the non-party company’s merger and succession of the instant delinquent tax amount by absorbing DD, the non-party company had already transferred the instant national tax refund claim to the Plaintiff and notified the head of Suwon Tax Office of transfer, the Defendant cannot appropriate the instant delinquent tax amount by the national tax refund of this case incurred after the notification of transfer.

(3) Even if the Defendant could appropriate the tax amount in arrears of the non-party company that occurred after receiving the request for transfer of the national tax refund by the national tax refund, the Defendant should promptly appropriate the national tax refund for the tax amount in arrears and pay the remaining amount to the transferee after appropriating it to the tax amount in arrears. The Defendant cannot be deemed to have appropriated the instant appropriation to the national tax refund for the tax amount in arrears on August 27, 2012, which was 33 days after the expiration of the 33th day from July 25, 2012 when the claim for transfer was finalized and the request for transfer was submitted

(4) As above, since the appropriation of this case is unlawful, the defendant of this case's national tax refund of this case

2,854,437,520 claimed by the Defendant to the Plaintiff, the assignee, that the Defendant appropriated the instant arrears;

There is an obligation to pay the original and any damages for delay.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether the legal provisions of this case are unconstitutional

(A) Whether it violates the principle of clarity

Since the legal provisions have generality and abstractity, their meaning can be embodied and clarified through the interpretation as a supplementary action of judges, if their meaning can be clear in light of the legislative intent, overall system, contents, etc. of the relevant Acts and subordinate statutes, it cannot be said that it lacks clarity in such cases.

Article 51 (1) of the Framework Act on National Taxes provides that the head of a tax office shall immediately determine the amount or tax amount to be refunded under the tax-related Acts by mistake or in excess of the amount or in excess of the amount of refund. In such cases, a claim for refund due to erroneous payment or in excess of the amount of refund shall be governed by Presidential Decree. Article 51 (2) of the same Act provides that the head of a tax office shall appropriate the amount determined by the national tax refund as the national tax, additional dues, or disposition fee for arrears, as prescribed by Presidential Decree. 3. Article 53 of the same Act provides that the taxpayer may transfer his/her right to national tax refund to another person under the conditions as prescribed by Presidential Decree. In addition, Article 43-4 (1) of the Enforcement Decree of the Framework Act on National Taxes provides that the taxpayer who intends to transfer his/her right to national tax refund to the other person shall request the head of the competent tax office in writing stating the transferor, transferee's address and name, and right to transfer before issuing the notice of national tax refund.

In addition, Article 24 (1) of the Value-Added Tax Act provides that "the head of the competent tax office shall refund the amount of refundable tax for each taxable period to the business operator under the conditions as prescribed by the Presidential Decree," and Article 72 (1) of the Enforcement Decree of the Value-Added Tax Act provides that the amount of refundable tax shall be refunded to the business operator within 30 days after the expiration of

In light of the contents and form of the above-mentioned relevant laws and regulations, the head of a tax office shall immediately determine the amount of the national tax refund when the refund is made, and shall appropriate the amount of the refund to the delinquent national tax, additional dues, and disposition fee for arrears. As examined thereafter, there is no ground to interpret the meaning of the 'unredeemed' as limited to the 'unredeemed at the time of the determination of the national tax refund'. In addition, even when the national tax refund claim is transferred to a third party, Article 43-4 (2) of the Enforcement Decree provides that the amount of the refund shall be promptly appropriated for disposition fee for arrears that the transferor shall pay to pay, and therefore, it seems clear that the '

(B) Whether the principle prohibiting comprehensive delegation of legislation violates

헌법 제75조는��대통령은 법률에서 구체적으로 범위를 정하여 위임받은 사항과 법률을 집행하기 위하여 필요한 사항에 관하여 대통령령을 발할 수 있다��고 규정하고 있으므로, 법률의 위임은 반드시 구체적으로 한정된 사항에 대하여 개별적으로 행하여 져야 할 것이다. 여기에서 구체적인 위임의 범위는 규제하고자 하는 대상의 종류와 성격에 따라 달라지는 것이어서 일률적 기준을 정할 수는 없더라도 적어도 위임명령에 규정될 내용 및 범위의 기본사항이 구체적으로 규정되어 있어서 누구라도 당해 법률로

From the point of time, it is necessary to predict the outline of the contents to be stipulated in the delegation order, but in this case, the existence of predictability should not be determined with only one of the relevant delegation clause, but rather with the overall structure, purport and purpose of the law to which the delegation clause belongs, and the form and content of the relevant delegation clause in an organic and systematic manner, and the relevant laws and regulations should be systematically and systematically comprehensively reviewed according to the nature of each delegation object (see, e.g., Supreme Court Decision 2003Du7606, Jul. 22, 2004).

Article 51(2) of the Framework Act on National Taxes provides that the head of a tax office may appropriate an amount determined as a national tax refund by dividing it into subparagraphs 1 through 3, and Article 33(2) of the Enforcement Decree of the Framework Act on National Taxes provides that “The head of a tax office shall appropriate a national tax refund under Article 51 of the Act, and shall notify the Bank of Korea of the amount to be paid to the taxpayer from among the revenues belonging to the pertinent year,” so it is possible to predict that the Enforcement Decree provides for the procedures after appropriation and method of refund. Therefore, it is difficult to view that Article

Therefore, the plaintiff's assertion is without merit.

(2) The appropriation of the delinquent taxes incurred after the transfer.

The amount of the transferor's delinquent taxes that occurred after the transferor transferred the claims for the national tax refund shall be considered to be appropriated by the national tax refund.

Article 35 of the Framework Act on National Taxes and Article 99 of the Framework Act on Local Taxes provide that national taxes, local taxes, additional dues, and disposition fees for arrears shall be collected in preference to other claims in order to efficiently secure taxes which serve as a financial foundation for the existence of the State or local governments. In light of the Constitutional Court’s decision of April 24, 1997, which declared that the legal provisions governing the priority of taxes do not violate the Constitution, and that where the head of a tax office fails to appropriate taxes without delay despite a taxpayer’s legitimate request for transfer, such appropriation may be appropriated for other national taxes, additional dues, or disposition fees for arrears to be paid by the transferor as of the time of appropriation (see Supreme Court Decision 2008Da31768, Mar. 26, 2009).

In light of the above legal principles, the assignment of claims under the Civil Act can not be set up against the assignee for reasons that could be set up against the assignee if the obligor satisfies the requirements for setting up against the assignee such as notification of the transfer by the obligee or the consent of the obligor. However, in the case of national tax refund claims, the obligation to make a prior appropriation to the head of the tax office as an internal procedure for the benefit of securing the right of appropriation by the taxation subject under the Framework Act on National Taxes is stipulated, and such obligation to make a prior appropriation is an exception to the legal principles of the transfer of claims under the Civil Act for the efficient collection of taxes that serve as the basis of national finances. Therefore,

Therefore, since the non-party company occurred at the time of appropriation of the non-party company’s delinquent tax amount that occurred after the transfer of the national tax refund claim of this case to the Plaintiff, the defendant can be deemed to have appropriated the instant delinquent tax amount with the national tax refund

(3) Whether the appropriation was made without delay

(A) According to Articles 51 and 53 of the Framework Act on National Taxes and Article 43-4 of the Enforcement Decree of the same Act, if a taxpayer requests a transfer of the national tax refund to another person by notifying the head of a tax office in writing stating the address and name of the transferor and transferee, and the contents of the right to transfer the national tax refund to him/her, and if there is any national tax in arrears after investigating and ascertaining whether the transferor is another delinquent national tax, etc., the head of a tax office shall promptly appropriate the delinquent national tax, etc. and pay the balance to the transferee. If the head of a tax office fails to appropriate the refund without delay even if he/she receives a legitimate request for transfer from the transferor due to his/her violation, the transferee shall ultimately belong to the transferee of the national tax refund claim that the transferee acquires, and if the latter is appropriated for the national tax in arrears of the transferor, the appropriation shall become effective only in the future, and as such, it shall be deemed that the collection of the tax claim against the property not owned by the transferor becomes final and conclusive (see Supreme Court Decision 2002Da31834, Sept.

In determining whether an appropriation is valid, where a request for transfer is received after the determination of the national tax refund claim, the determination shall be based on whether the national tax refund claim was appropriated without delay from the time when the request for transfer was received when the national tax refund claim becomes final and conclusive (see, e.g., Supreme Court Decision 2008Da31768, Mar. 26, 2009).

Meanwhile, Article 51(1) of the Framework Act on National Taxes provides that "the head of a tax office shall immediately determine the amount of national tax refund when there is any erroneous payment, excess payment, or tax refund out of the amount paid by a taxpayer as a national tax, additional dues, or disposition fee for arrears." The term "tax refund amount refers to the tax amount legally paid or collected but the State has no justifiable reason to hold thereafter and is determined to be refunded under each individual tax law. The State's duty to pay the value-added tax amount is directly generated under the provisions of the Value-Added Tax Act regardless of the State's actual payment in any taxable period. The legal nature is not a duty to return unjust enrichment recognized by the Value-Added Tax Act and subordinate statutes, and its existence or scope is specifically determined under the concept of justice and fairness, and is specifically recognized from a policy point of view, and a taxpayer's claim for return of such refund amount is finalized in accordance with the requirements provided for in each individual tax law (see, e.g., Supreme Court Decision 2011Da9564, Mar. 21, 2013).

(B) On July 25, 2012, the non-party company filed a final return on the value-added tax base for the first year 201 with the head of Suwon Tax Office on July 25, 2012, and filed a request to transfer the national tax refund to the head of Suwon Tax Office on July 26, 2012 to the Plaintiff, as seen earlier. As such, the claim for the national tax refund of this case was finalized on July 25, 2012, and the head of Suwon Tax Office requested the transfer of the claim for the national tax refund of this case on July 26, 2012 (the Plaintiff subparagraph 3).

7.25. The date on which the delivery date of the national tax refund is sent to the Director of the Suwon Tax Office on July 25, 2012, but the receipt certificate (Evidence A 3-2) prepared by the Suwon Tax Office is claimed as the date on which the delivery date of the national tax refund is sent.

Since the date of receipt was July 26, 2012, it is deemed that the request for transfer was submitted on July 26, 2012). Meanwhile, the head of the Suwon Tax Office confirms the receipt statement of value-added tax, attached documents, and the receipt statement, such as the list of total tax invoices, credit card sales slip, in order to determine the amount of value-added tax payable pursuant to Article 72 (4) of the Enforcement Decree

Determination of the amount confirmed as value-added tax refund, the Enforcement Decree of the Value-Added Tax Act

Tax refund of value-added tax under Article 72 (1) shall expire after the due date for each taxable period.

Since the head of the tax office must refund the business to the business owner within 30 days, the necessity of transfer by the head of the tax office

The appropriation of the instant appropriation made on August 27, 2012, which was within 30 days from July 26, 2012 after the Gu received (where the last day of the period falls on Saturdays or public holidays pursuant to Article 4 of the Framework Act on National Taxes and Article 161 of the Civil Act, the period shall expire on the following day, and shall expire on August 25, 2012, which falls on the 30th day from July 26, 2012 to August 27, 2012, since the expiration date of the period corresponding to 30 days from July 26, 2012, shall be deemed to be appropriated without delay from the time the two demands are received, and is lawful.

3. Conclusion

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