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(영문) 서울고등법원 2007. 11. 16.자 2007라1221 결정
[회생][미간행]
Appellants

Korea

Principal of the case

The administrator of the mobilization and development corporation of the rehabilitation debtor;

The first instance decision

Seoul Central District Court Order 2006 Ma8 dated May 25, 2007

Text

1. The appeal of this case is dismissed.

2. Costs of appeal shall be borne by the appellant;

Purport of appeal

In the rehabilitation plan for tax liability of the decision of the first instance court, "additional and aggravated additional charges incurred by the day preceding the decision on authorization of the main tax and the rehabilitation plan" shall be amended to "additional and aggravated charges incurred by the date of the principal tax and repayment".

Reasons

1. Basic facts

According to the records, the following facts are substantiated.

A. Since the mobilization development company was established on March 21, 1985 for the purpose of civil engineering, construction, machinery construction, etc., it is mainly a company that has been engaged in the construction of government-funded construction works, such as road works in the area of Gangwon-do as its main business.

B. On July 31, 2006, a mobilization development company filed an application for commencement of rehabilitation procedures on the ground that there is a ground under Article 34(1) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”), and received a decision to commence rehabilitation procedures on August 28, 2006, and received the first instance court decision authorizing the rehabilitation plan on May 25, 2007.

C. According to Article 140 of the Debtor Rehabilitation Act, the rehabilitation plan for the tax liability of the first instance court is suspended by December 30 of the third year (2009) following the date on which the authorization of the rehabilitation plan is granted.

D. Meanwhile, on March 21, 2007, the appellant consented to the notification of the date of the meeting of interested persons and the opinion inquiry conference of the rehabilitation court on February 5, 2007 on the condition that the total amount of the principal tax and the increased additional dues incurred until the date of the completion of the repayment of the principal tax and the increased additional dues, along with the rehabilitation claim registration statement on March 21, 2007. According to the current provision, the appellant presented an opinion on the increased additional dues

2. The appellant's assertion;

The appellant asserts as follows as the grounds of appeal of this case.

A. The instant rehabilitation plan stipulates only KRW 3,209,565,930 as the aggregate of the principal tax and the additional dues and the aggravated additional dues until the day immediately preceding the date on which the authorization is determined, among the tax claims against the debtor, shall be determined as tax claims, and KRW 1,593,505,70 as the increased additional dues until the date on which repayment is scheduled after the date on which the authorization is determined is determined shall be excluded in the repayment plan. As such, Article 19(4) of the National Tax Collection Act applies only to the case where collection is deferred under Article 140 of the Debtor Rehabilitation Act before the time limit for payment of the national tax or delinquent amount expires, and as in the instant case, the increased additional dues may not be exempted by a deferment of collection under Article 140 of the Debtor Rehabilitation Act after

(b) Even if the need for debt adjustment is recognized inevitably for the smooth implementation of household affairs and reorganization programs, the claimant's claims should take priority over the public interest as a tax claim, and considering this, the increased amount of the increased amount exempted by the deferment of collection is too excessive and unreasonable;

C. Therefore, the decision of the first instance court that approved the rehabilitation plan is unlawful, since the rehabilitation plan of this case is not consistent with the provisions of law or is against the fairness and equity.

3. Relevant provisions

(3) If the head of a tax office defers the collection of national taxes under the provisions of Article 17 before the time limit for payment notified to him/her under the provisions of Article 19 of the National Tax Collection Act, he/she shall not impose the additional dues as provided for in Article 21 until the said time limit for payment expires.

4. Determination

A. Article 19(4) of the National Tax Collection Act provides, “When a deferment of collection is granted pursuant to Article 140 of the Debtor Rehabilitation Act prior to the due date for payment of national taxes or delinquent amount,” there is room for construing that additional dues and aggravated additional dues shall be collected when the rehabilitation plan for which deferment of collection is determined is approved after the due date for payment.”

However, in light of the purport of the Debtor Rehabilitation Act aiming at promoting the efficient rehabilitation of the debtor, shareholders, equity right holders, etc. or the fair realization and distribution of the debtor's property difficult to recover after the lapse of the due date, the period of deferment of collection is not subject to Article 140 (2) of the same Act ; ② The period of deferment of collection under Article 140 of the same Act does not restrict only the period of time prior to the due date for payment of national taxes or delinquent amount; ③ If the increased additional dues are continuously imposed on the grounds that the period of deferment of collection under Article 140 of the Debtor Rehabilitation Act ended after the due date for payment ; ④ the purpose of Article 140 of the same Act aiming at granting the effect of extending the due date for payment under the same Act ; ④ The period of deferment of collection aiming at promoting the efficient rehabilitation of the debtor, shareholders, equity right holders, etc., or the fair realization and distribution of the debtor's property difficult to recover under the same Act aiming at restricting the occurrence of increased additional dues after the due date for payment.

(b) In addition, considering the financial structure of the rehabilitation obligor, the scale of the taxation claim, the repayment conditions for other rehabilitation creditors, the increased amount of the increased amount to be exempted by the deferment of collection, etc., it cannot be deemed that the increased amount to be exempted by the deferment of collection is excessive.

C. Therefore, the appellant’s argument is without merit.

5. Conclusion

Therefore, the appeal of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Jae-de (Presiding Judge)

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