Determination on the legitimacy of a lawsuit claiming damages

The defendant's obligation to transfer ownership to the non-party 000 was impossible due to the auction of this case. However, if the amount of the secured obligation secured by the right to collateral security is deducted from the amount of the secured obligation secured by the right to collateral security, it cannot be deemed that the damage was caused to 000

National Tax Collection Act

00 Assistance2015 Gohap41287 Compensation, etc.

AA

BB

obs 2016.12

.6.9

1. All of the plaintiff's claims are dismissed.

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

The purport of the claim of the old prop-compact claim: the defendant shall pay to the plaintiff 123,57,000 won with 5% interest per annum from November 12, 2014 to the delivery date of the copy of the complaint of this case, and 15% interest per annum from the following day to the full payment date.

Preliminary claim: The defendant shall pay to the plaintiff 123,00,000 won with 5% interest per annum from November 12, 2014 to the delivery date of a duplicate of the complaint of this case, and 15% interest per annum from the next day to the full payment date.

1. Facts of recognition;

A. On September 16, 2014, Kim 00: (a) donated 00 00 -00 -00 - 00 - 00 - 00 - 00 - 24-2 - 15,739 m24-8 - 24-8 m24-8 - and 997 m24-8 - was notified of KRW 278,547,840 as gift tax from the head of the tax office on June 1, 2015; (b) on October 22, 2014, the transfer of each of the above real estate was notified of KRW 265,380,270; and (c) the gift tax and capital gains tax were not paid despite having been notified of KRW 265,380,270 on February 9, 2015; (d) the amount of taxes in arrears as of October 22, 2015.

B. Registration of ownership transfer, etc. of the apartment in this case

1) On May 30, 2008, the mother of Kim 00 donated on May 30, 2008 the real estate indicated in [Attachment] Real Estate (hereinafter “the apartment of this case”) to the Plaintiff, and completed the registration of ownership transfer on June 2 of the same year. 2) Kim 00 completed the registration of ownership transfer on five occasions between January 7, 2009 and March 4, 201, the total maximum debt amount of the apartment of this case was 204,000,000 won to the National Agricultural Cooperative Federation for five times during the period of five times between January 7, 2009 and March 4, 201; 3) Kim 00 completed the registration of ownership transfer on April 21, 201 to the Defendant, on the same day, on the same day, the registration of ownership transfer was completed on July 16, 201, and the Defendant terminated the registration of ownership transfer between the Defendant and the Plaintiff’s creditor of this case as the maximum debt amount of this case. 0101.

1) On December 16, 201, Kim 00 filed a lawsuit against the defendant, 00 livestock cooperatives, and Kim 00 on December 16, 201 against the defendant, 200 livestock cooperatives, and Kim o0, around which Kim o0 filed a lawsuit against the defendant seeking the cancellation of the provisional registration of the right to claim ownership transfer, the registration of the ownership transfer, and the defendant's preliminary registration of the establishment of a neighboring mortgage that was completed to the defendant 00 livestock cooperatives, and the defendant filed a lawsuit against the defendant for the cancellation of the contract to establish a mortgage and the cancellation of the registration of the establishment of a right to claim a right to claim a right to claim a right to claim a right to claim a right to claim a right to claim a right to claim a right to claim a right to claim a right to claim a right to claim a right to claim a right to claim a right to claim a right to claim a right to claim a right to claim a right to claim a right to claim a right to claim

D. On September 26, 2014, the mortgagee-mortgaged 00 livestock cooperatives against the Defendant with active property of the instant apartment and Kim 00 filed an application for voluntary auction (hereinafter “instant auction”) with the competent court for the instant apartment on September 26, 2014. As a result, the instant apartment was sold to KimA on November 12, 2014 for KRW 293,57,000 and the ownership transfer registration was completed on the same day. As of the date of the closing of argument, there is no particular active property, such as real estate, etc. against Kim0. [Grounds for recognition] There is no dispute on the existence of any specific property, such as real estate, etc.

2. Determination

A. The plaintiff's assertion

1) As a creditor against Kim 00, the Plaintiff has no particular positive property in addition to the Defendant’s claim against Kim 00, and there exists a circumstance in which it is impossible for the Plaintiff to valid and secure the actual performance of the Plaintiff’s claim against Kim 00, unless Kim 00 did not exercise his/her right by subrogation of his/her right to claim damages, etc. against the Defendant. Therefore, the Plaintiff shall exercise by subrogation the claim for damages or the return

2) The Defendant is obligated to transfer the ownership of the instant apartment to Kim 00 by the judgment of the previous suit. Since the instant apartment was sold to KimA due to the instant auction, the Defendant was unable to perform the obligation to transfer the ownership, the Defendant shall compensate for damages arising therefrom to Kim 00. The amount of damages is the market price of the instant apartment at the time of impossibility of performance (the auction price of KRW 293,577,000). Since the Defendant received the instant apartment after completing the registration of ownership transfer in the future and repaid the amount of KRW 170,000 with the Defendant’s debt of KRW 170,000,000, the amount of damages should be deducted from the amount of damages. Accordingly, the Defendant’s damage claim against the Defendant of Kim 00 is KRW 123,57,000 (=293,577,000), -170,000,000).

3) 설령 피고에게 소유권이전등기의무 이행불능으로 인한 손해배상의무가 없다고 하여도, 피고는 이 사건 아파트를 김00로부터 명의신탁받은 명의수탁자에 불과하여 이 사건 아파트의 소유자가 아니었음에도 불구하고 이 사건 아파트를 담보로 00축산업협동조합으로부터 193,000,000원을 대출받아 그중 김00의 채무를 변제한 170,000,000원을 제외한 23,000,000원을 무단으로 사용하고, 김QQ으로부터(다만 근저당권은 김00의 명의로 설정) 100,000,000원을 차용하여, 법률상 원인 없이 이익을 얻고 이로 인하여 이 사건 아파트의 소유자인 김00에게 손해를 가하였으므로 123,000,000원[= (193,000,000원 - 170,000,000원) + 100,000,000원]을 부당이득으로 김00에게 반환하여야 한다.

B. Determination on the need for preservation claims and preservation

According to the above facts of recognition, the plaintiff has a tax claim of KRW 569,79,620 against Kim 00, and there is no other active property against Kim 00. Thus, it is recognized that there is a need to preserve the plaintiff by subrogation as the creditor of Kim 00.

C. Judgment on the plaintiff's claim for damages

1) According to the fact that the obligation to transfer the ownership of the instant apartment was impossible, the Defendant was obligated to complete the registration of ownership transfer of the instant apartment on the ground of the “transfer agreement on December 3, 201,” according to the judgment in the prior suit, but the auction of the instant apartment was conducted after the judgment in the prior suit, and completed the registration of ownership transfer in the name of KimS, since the instant apartment was sold to KimS on November 12, 2014 and completed the registration of ownership transfer in the name of KimS., the Defendant’s above obligation is deemed impossible.

Although the defendant urged to implement the procedure for ownership transfer registration to Kim 00 after the judgment of the previous suit, while Kim 00 refused the registration of ownership transfer on the ground that "if the ownership transfer registration is made in the state where the collateral collateral security was established, there is no value of property on the apartment of this case," the auction of this case is proceeding, and the ownership transfer registration is completed in KimSS, and thus, the defendant's assertion that it is impossible to execute the procedure due to the reason that the defendant's failure to return from the body of the land Kim 00'

2) Whether the loss was caused by the impossibility of performance

Where the obligation to register the transfer of ownership of real estate becomes impossible, the amount of compensation shall, in principle, be based on the market price of the object at the time when the performance is impossible (see, e.g., Supreme Court Decision 95Da22337, Oct. 13, 1995). However, in cases where the right to collateral security has been established, even if the right to collateral security has been completed, the transferee acquires real estate under the burden of the right to collateral security. Thus, barring special circumstances, such as the transferor who entered into an agreement to register the transfer of ownership and entered into an agreement to cancel the right to collateral security, the market price of the object refers to the amount calculated by subtracting the value

The facts are as follows: (a) the sales price of the instant apartment was KRW 293,57,00; (b) the maximum debt amount of KRW 231,60,000,000 with respect to the instant apartment at the time of the instant auction; and (c) the establishment registration of a mortgage of KRW 130,000 with respect to the instant apartment as the creditor, and the maximum debt amount of KRW 130,000 with respect to the establishment of a mortgage of KRW 130,00 with respect to the creditor, was completed; and (d) according to the evidence evidence evidence evidence evidence Eul, the actual debt amount of the creditor’s livestock cooperative as of November 18, 2014 near the Defendant’s obligation to transfer real estate ownership at the time of the instant auction was impossible; and (e) the actual debt amount of KRW 203,927,338, and KRW 179,671,232,00 with respect to the instant apartment as of December 18, 20194.

Therefore, at the time when the Defendant’s obligation to transfer the ownership of the instant apartment became impossible, the value of the secured debt secured by the right to collateral security regarding the instant apartment is KRW 33,927,338 (=203,927,338 of the actual claim amount of the 00 Livestock Industry Cooperatives + KRW 130,000,000, which can be seen as the market price of the instant apartment as the market price, exceeds KRW 293,57,00, and ultimately, the amount of damages would be zero if the secured debt is deducted.

3) Sub-decisions

The defendant's obligation to transfer ownership to Kim 00 was impossible due to the auction of this case. However, if the value of the secured debt secured by the right to collateral security is deducted from the market price of the apartment of this case at the time of impossibility of performance, it cannot be deemed that the damage was caused to Kim 00 due to the impossibility of performance. Thus, the plaintiff's claim for damages is without merit.

D. Judgment on the plaintiff's claim for restitution of unjust enrichment

On July 5, 201, 201, the Plaintiff’s claim for this part was held in title trust with the apartment of this case at the time when Kim 00 completed the registration of ownership transfer in the Defendant’s future, and the Defendant did not acquire the apartment of this case. Under the premise that the Defendant was merely a title trustee, the Defendant, who was the title trustee, established the right to collateral security with respect to the apartment of this case, constitutes unjust enrichment without any legal ground. However, the judgment of the court below that the Defendant was liable to complete the registration of ownership transfer on the ground of the “transfer agreement” on November 3, 2011, is identical to the fact that it was recognized that the Defendant had the duty to complete the registration of ownership transfer on the ground that Kim 00 was the Defendant’s title trust with the apartment of this case, and there is no evidence to deem otherwise that the Defendant trusted the apartment of this case to the Defendant.

Therefore, there is no reason for the first-party plaintiff's claim on different premise.

3. Conclusion

If so, all of the plaintiff's claims are dismissed.