It does not create a right to indemnity even if a loan has been made in the name of another person due to excess of the limit of its financial rights.

Although the name of the debtor under a loan contract is the defendant, since the actual debtor is the delinquent taxpayer in the internal relationship between the defendant and the delinquent taxpayer, there is no claim for indemnity against the defendant of the delinquent taxpayer.

Article 35 of the Framework Act on National Taxes

2015 Gohap10270 Claims

Korea

Is 00

July 8, 2016

August 26, 2016

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 1,03,824,470 won with 15% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Facts of recognition;

A. The defendant is the spouse of 00.

B. On May 25, 2010, the Defendant created a joint collateral security (hereinafter “instant collateral security”) with respect to the debtor, the mortgagee, the mortgagee, the NAF, the NAF, the NAF, the 1,400,000,000 won of the loan (hereinafter “the instant loan”), and the joint collateral security (hereinafter “instant collateral security”) with respect to the debtor, the debtor, and the debtor, the NAF, the NAF, the NAF, the 1,820,000,000 won of the loan, in order to secure the loan obligation (hereinafter “instant loan”).

C. On January 3, 2013, the voluntary auction procedure was initiated by this Court No. 2013Ma46 regarding the instant real estate, and the Busan dong Nonghyup was fully distributed KRW 1,682,878,450 on October 10, 2013 based on the instant collateral security.

D. On August 26, 2015, the Plaintiff has a taxation claim of KRW 1,033,824,470 in total as of August 26, 2015, and Park 00 is currently insolvent.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 7 (including each number; hereinafter the same shall apply) and the purport of whole pleadings

2. Determination as to the cause of action

According to the above facts, Park 00 has a claim for indemnity amounting to KRW 0,00,000,000, which was paid in the auction procedure for the real estate of this case to the defendant, as the defendant's property to secure the property to secure the loan contract of this case and the mortgage contract of this case against the defendant, and except in special circumstances, the plaintiff has a claim for reimbursement amounting to KRW 0,000,000,000, which was paid in the auction procedure for the real estate of this case against the defendant. The plaintiff has a claim for reimbursement amounting to KRW 00,000,000 against the defendant as the current insolvent condition. Since Park 00 does not exercise a claim for reimbursement against the defendant as the current insolvent condition, the plaintiff is obligated to pay to the plaintiff 0,000,000,000,

3. Judgment on the defendant's assertion

A. The defendant's assertion

Although the name of the debtor under the loan contract of this case is the defendant, the actual debtor is 00 in the internal relationship between the defendant and Park Park 00, so there is no claim for indemnity against the defendant Park 00.

B. Determination

1) In a case where a third party obtains a loan from a financial institution and allows the third party to use his/her name, regardless of whether he/she is liable to the financial institution as a principal debtor, the creditor does not naturally assume the obligation of indemnity as a principal debtor against a person who has pledged another’s property to secure another’s property, who has fulfilled his/her responsibility for water guarantee in an internal relationship (see, e.g., Supreme Court Decisions 2007Da75648, Apr. 24, 2008; 2013Da80249, 80436, Apr. 30, 2014).

2) According to the following circumstances, it is reasonable to view the loan of this case by borrowing the name of the defendant and receiving the loan of this case from the defendant, and the actual debtor of the loan of this case is 00,00, according to the following circumstances: (a) the statement of evidence Nos. 1 to 12, 14, and 18; (b) the witness Lee 00 testimony of this court; and (c) the fact-finding on the president of the 00 agricultural cooperative of this court; and (d) the result of the order to submit each financial transaction information to the 00

① Around January 2010, Park 00 decided to obtain a loan from the National Agricultural Cooperative of Busan-dong as collateral, which is likely to be subject to compulsory execution on the real estate 00 ownership of Park 00 from creditors due to excessive debts. Park 00 decided to obtain a loan from the defendant, who is the spouse of Park 00, for the purpose of avoiding the limit of loans to the same person under the loan regulations of the National Agricultural Cooperative of Busan-dong in the course of loan consultation.

② Accordingly, on May 25, 2010, the Defendant entered into the instant loan agreement with the agricultural cooperative on the part of the debtor and set up the instant collateral security.

③ On the date of the instant loan, the Defendant used KRW 737,454,721 out of the loan 1,400,000,000 to repay the principal and interest of loan to 00 banks, a stock company of 00,000, and the remaining KRW 000,000,000 issued a cashier’s check (the check number of KRW 00,000) as one cashier’s checks and issued it to 00 as one cashier’s right to 00,000. As such, most of the instant loans were used to repay the debt of 00,000, and the Defendant did not use it individually.

④ On the other hand, the Plaintiff asserts that, in light of the fact that the above cashier’s checks do not specify 00 as the endorser, the Defendant cannot be deemed to have subrogated to the Defendant for the obligation of 00 YY. However, in the receipt (Evidence B (Evidence B) issued by 00 to the Defendant on May 25, 2010, the check number of the above cashier’s checks is indicated as well as the receipt of KRW 600,000,000, and the related case (Seoul East Eastern District Court Decision 2010Na22703, Seoul High Court Decision 201Na7086). In light of the above, the Defendant issued the above cashier’s checks under the pretext of the obligation of 00,000,000,000, the Defendant paid KRW 600,000 to 0.

3) As such, since the actual debtor of the instant loan contract does not have the right to indemnity against the defendant, the plaintiff cannot exercise the right to indemnity against the defendant in subrogation of Park 00. Therefore, the plaintiff's allegation is without merit.

4. Conclusion

Thus, the plaintiff's claim of this case is dismissed for reasons.