No objection may be raised against the agreement to extend the due date for collection after a service of the seizure order.

Where a seizure order is issued against a monetary claim, the garnishee is prohibited from paying to the debtor, and the debtor is prohibited from disposing of and receiving the monetary claim, and the garnishee, as a third debtor, cannot perform any act of reducing the value of the monetary claim by delaying the period of claims, etc. and cannot set up against the creditor as such act.

Article 24 of the National Tax Collection Act

Suwon District Court Decision 2015Gahap69436 Collection Money

Korea

AA

September 8, 2017

October 27, 2017

1. The defendant shall pay to the plaintiff KRW 631,285,730 as well as to the day of full payment from October 27, 2015 to the day of full payment.

It shall pay 15% interest per annum.

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

3. Paragraph 1 can be provisionally executed.

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

A. On the land of 1066-2, and 3 sites of o-si around 2011 (hereinafter “instant land”).

On July 25, 201, in order to carry out the business of newly constructing and selling officetels (BII and III) (hereinafter referred to as the "business of constructing an officetel in this case"), LSC, the owner of the land in this case, entered into a contract to purchase the instant land by determining the purchase price of the instant land as KRW 7 billion (hereinafter referred to as "the instant contract to purchase the instant land"), and during which process, the Defendant agreed to pay the remaining purchase price of KRW 2.8 billion to LSC, the landowner, within three months after completion.

B. On August 12, 2011, the Defendant: (a) DDR Comprehensive Construction Co., Ltd. (hereinafter “DDR Comprehensive Construction”) (hereinafter “DDR Construction”).

HGJS Trust Co., Ltd. (hereinafter referred to as “HGJS Trust”), which is an agent trust company, a loan

A project agreement and an agent with respect to the project for the construction of the ISO and the instant officetel, which is an agency for convergence;

The contract was entered into without agreement (hereinafter referred to as "the agency contract of this case"), and the agency contract of this case

The provisions relating to the execution of the funds in writing shall be as follows:

Article 6 (Registration of Trust and Issuance of Certificates of Rights to Benefit)

① The Defendant entered into a sale management trust agreement with HGJS trust on the instant land as a trustee, and simultaneously files a registration of trust with the seller of the instant land at the same time as the transfer of ownership is registered.

② The HGJS trust shall issue a certificate of preferential right, at the same time as the registration of the trust, to the seller of the instant land as the first beneficiary and the first beneficiary with the IS Agricultural Cooperative as the first beneficiary.

§ 11. Payment of construction costs

(3) Construction costs shall be paid within the order of fund execution and the fund management account.

7) The DR General Construction is to be reserved within the limit of 20% of the total amount of the completed construction until completion. The determination on such determination shall be made by the Defendant, HGJS Trust, and the ISD Agricultural Cooperative, upon consultation, to handle the funds of the HGJS Trust.

Article 22 (Method of Executing Funds)

① 분양수입금관리계좌 또는 자금관리계좌에서 자금을 인출��집행하고자 할 경우에는 피고는 자금집행을 DR종합건설 및 HGJS신탁의 동의를 득하여 HGJS신탁에게 서면으로 요청한다.

Article 23 (Order of Execution of Funds)

(1) The HGJS trust shall, when there exists any competition in performing the funds under Article 22, be paid in accordance with the following order of priority:

2. Trust fees and substitute fees for the HGJS trust, expenses incurred in performing the trust affairs of HGJS trust, and refund of subscription for sale or subscription;

3. Interest on loans made by agricultural cooperatives for land prices;

4. Essential business expenses;

5. Costs for construction of the DDR comprehensive construction;

6. Loan principal;

Article 25 (Registration of Relocation, etc. after Completion of Construction)

(6) Revenues generated from the disposal, lease, sale in lots, etc. of unsold goods after completion shall be executed in accordance with the order of funding execution prescribed in Article 23, and the repayment of loans by the ISO shall take precedence over the construction cost of DDR comprehensive construction: Provided, That where a trust contract separately prescribes (including all disposal and settlement of unsold goods) and a trust contract shall take precedence over the trust contract.

Article 26 (Settlement of Business Accounts)

1. The defendant, the DR Comprehensive Construction, the HGJS Trust, and the IS Agricultural Cooperative shall settle the accounts in favor of the "this project" within three months after completion.

Article 34 (Termination, Settlement, etc. of Contracts)

(3) When the contract is terminated pursuant to paragraph (2), the order of settlement of the funds of this project shall be as follows:

3. Principal and interest of loans of agricultural cooperatives under IS;

4. The unpaid construction cost;

5. The balance of land costs of a seller of the business site;

(5) Where there is no separate agreement between the parties when settling accounts for business pursuant to Article 26, or it is difficult to reach an agreement, the order of settlement under paragraph (3)

C. On August 12, 2011, the Defendant entrusted the instant land to the HGJS trust, and trusted the HGJS trust.

and real estate sale management trust contract and security trust contract (hereinafter referred to as "security trust contract of this case")

In the instant security trust agreement, it is identical to Article 6 of the instant agency contract.

the first beneficiary of the ISD and the second beneficiary of the land-based lsC as the first beneficiary of the ISD;

The provisions related to settlement, such as disposal price, are as follows.

Real Estate Sale Management Trust Contract

Article 24 (Settlement of Proceeds from Disposal, etc.)

(1) The order of priority in cases where a trustee disposes of, or liquidates into, the trusted real estate shall be as follows:

4. Claim secured by the preferential beneficiary;

5. Claims for the construction cost of the contractor and all the expenses related to the sale thereof;

Security Trust Contract

Article 21 (Methods of Settlement, such as Proceeds from Disposal)

(1) The settlement of the proceeds from the disposal of real estate trusted shall be made in the following order: Provided, That where the order of fund execution stipulated by an agent contract, etc. concluded between a trustee and a truster falls short of the following subparagraphs, it shall be made in the order of fund execution, such as an agent contract, etc.

6. Claims of preferential beneficiaries;

7. Beneficiary's right to benefit;

D. On October 17, 201, the Defendant: (a) between DDR Construction, a contractor, and DDR Construction; and (b) between DDR Construction, the instant case

The contract price for construction of an officetel construction project shall be the period from October 24, 201 to September 25, 2013;

The contract for construction works was concluded with the content that the work will be performed by setting up 15 billion won (15 billion won).

Dr. Dr. D. D. General Construction on October 4, 2013

The death was completed.

E. As to the instant construction contract, the Defendant’s unpaid construction price as of December 24, 2013 is not paid.

1,464,760,000 won (hereinafter referred to as "the construction price in this case") was 1).

1) Meanwhile, the Defendant asserts that the above amount is KRW 938,749,779 when deducting the Defendant’s direct payment to the subcontractor, the amount of assignment of claims to the subcontractor, and the amount of the Defendant’s tax payment on behalf of the subcontractor, etc., and that the above two amounts are more than the Plaintiff’s claim for collection. As such, the Defendant’s assertion

No determination shall be made separately.

F. The director of the Namcheon District Tax Office, the competent agency of the Plaintiff, collects the above national taxes in arrears due to the comprehensive construction of DR.

For the purpose of this section, according to Article 41 (1) (2) of the National Tax Collection Act, the defendant's "the defendant's "DDR case" shall be the defendant on April 3, 2014

amounts equivalent to national taxes in arrears, out of accounts payable to him or any future transaction amounts;

The amount of arrears related to seizure (including increased additional charges and expenses for disposition on default added later) has been seized.

No later than April 28, 2014, a statement of attachment guidance to the effect that the amount is payable to the Namcheon Tax Office by April 28, 2014

The notice of attachment was sent to the Defendant at that time, and the above notice was sent to the Defendant (hereinafter referred to as “the attachment notice”).

‘The First Attachment Disposition of this case’. At the time, comprehensive DDR construction is the aggregate of corporate tax, earned income tax, etc.

395,393,630 won was delinquent.

G. In addition, on August 27, 2015, the director of the tax office having jurisdiction over the above Namcheon District Tax Office shall transfer to the defendant for the same purpose as the above (f) above.

The first notification of the attachment was sent to the Defendant by September 3, 2015, demanding that the delinquent amount should be paid to the Namcheon Tax Office by September 3, 2015, and the notification of attachment reached the Defendant on September 8, 2015 (hereinafter “the second notification of attachment”). At the time, DDR Construction failed to pay the total amount of KRW 619,43,170,000, including corporate tax and wage and salary income tax, and as of October 14, 2015, the total amount of KRW 631,285,730 (=the delinquent amount of KRW 625,239,60 + additional dues of KRW 6,046,00).

H. Meanwhile, around March 2016, the Defendant repaid the full amount of loans to the Nonghyup Cooperatives.

[Ground of Recognition] A without dispute, Gap evidence 1 through 10, 13, Eul evidence 1 through 3, 8, 13, 14, 23

Each entry of evidence 24 and the purport of whole pleadings

2. Determination as to the cause of action

According to the above facts, the agency affairs of this case concerning the settlement of the project after completion.

The provisions of Articles 26(1) and 34(3) and (5) of the Contract shall apply, and shall comply therewith.

In the case of MyeonDD General Construction, after payment of the principal and interest of the IS Agricultural Cooperative, the Defendant has not been paid.

(1) The full amount of the loan to the AFFFF and the full amount of the loan shall be

Since repayment was made, the maturity period of the claim for the payment of the non-paid construction price of this case has arrived.

It is reasonable to see that it is.

Therefore, unless there are special circumstances, the defendant's seizure disposition of this case is subject to Article 41 (2) of the National Tax Collection Act.

under subsection (1) shall not be paid to the Plaintiff, the execution creditor subrogated to the DR construction.

Of the claims, 631,285,730 won in arrears and the service of a copy of the complaint in this case

The 15% per annum prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from October 27, 2015 to the date of full payment.

shall be liable to pay damages for delay calculated in proportion to the ratio of such damages.

3. Judgment on the defendant's assertion

A. The due date for the claim for the construction payment of this case has yet to be due under the agreement of the repayment order of this case

Determination as to the assertion that no arrival has been made

1) The defendant's assertion

The defendant from the beginning of the construction project of the instant officetel to the DR Comprehensive Construction Division, the defendant

A. The construction cost payable to DDR General Construction after the completion of the instant officetel is not paid.

(1) Outstanding loans to financial institutions (ISO);

(2) An agreement that is made after the payment of land remaining after lsC for land (this agreement) is made.

H 'Agreement on the Order of Performance' was made.

After that, reflecting the agreement on the repayment order of this case, the Corporation shall set the second priority beneficiary.

Unlike trading practices, the IS Agricultural Cooperative was designated as the first beneficiary and the land-based LSC as the second beneficiary and entered into the instant agency contract and the instant security trust contract.

However, since the payment of the remaining land to the LSC has not been completed up until now, the plaintiff's claim is groundless since the due date for the claim for the payment of the construction price of this case has not yet arrived.

2) Determination

According to the evidence evidence Nos. 11, 11, 2, 8, and 10, the defendant entered into the land sales contract of this case with the land owner LSC on July 25, 201, and agreed to pay 2.8 billion won in preference to DDR construction, which is the contractor. ② The defendant has paid 300 million won out of the purchase and sale of the land of this case to the land owner LSC up to now, and has not yet paid 2.5 billion won, the remainder of the purchase and sale contract of this case. ③ The substitute office contract of this case and the collateral trust contract of this case set the ISD as the first beneficiary, the land owner LSC as the second beneficiary, ④ the DDR Construction as the comprehensive construction owner on April 9, 201, and the defendant has agreed to pay part of the contract price of this case to the subcontractor on July 7, 2014, and the defendant has agreed to pay 70 billion won in the order of transfer and acquisition of the bonds of this case.

However, in light of the following circumstances acknowledged by the evidence Nos. 2, 3, 13, Eul evidence Nos. 3, 17, and 22 as well as the purport of the entire pleadings, it is reasonable to deem that the claim for the instant construction payment of DDR in the order of repayment than the claim for the remaining land of LSC in the land, or at least the order of repayment was not determined between the above claims, and as a result, it appears that the due date for the instant claim for the payment of the construction payment in question has arrived [the following points are not set up by the instant settlement agreement dated July 17, 2014].

1) According to the Defendant’s assertion, the agreement on the instant repayment order can be deemed as falling under the most important condition that DDR General Construction participates in the instant construction project. Nevertheless, the agreement on the instant repayment order is not written in anywhere in the construction contract of the instant case, and the documents accurately stating the details of the instant repayment order at the time of the first attachment disposition are not prepared.

2) In the instant agency contract, the International Agricultural Cooperative was designated as the first priority beneficiary, and the land-based lsC as the second priority beneficiary. However, there is no content that the land-based lsC’s remainder claim, which is the second priority beneficiary under the instant agency contract, is higher than the land-based land-based lsC’s unpaid construction payment claim.

3) Rather, Article 34(3) of the instant agency contract provides that, when the instant agency contract is terminated, the unpaid construction cost of the instant DR comprehensive construction takes precedence over the land balance of lsC, a seller of the instant land. Paragraph (5) of the same Article provides that, “If there is no separate agreement between the parties or it is difficult to reach an agreement during the settlement of the instant business pursuant to Article 26, the order of settlement under Paragraph (3) of the said Article shall be followed.”

4) Article 11(7) of the instant agency contract provides that “to reserve up to 20% of the total construction completion amount until completion of construction works” and does not provide any special provision regarding the order of fund execution after completion.

5) In the case of this case, it is reasonable to interpret that the payment of construction cost shall be made in accordance with the order of funding under Article 23 in accordance with the interpretation of the contract pursuant to Article 11(3). However, it is only interpreted that the principal and interest of the IS agricultural cooperative is settled in preference to the unpaid construction cost of DR comprehensive construction pursuant to Articles 25(6) and 34(3).

6) The Defendant sent DR General Construction four times from December 24, 2013 to March 27, 2014, before the notification of the first attachment disposition of the instant case was made. The Defendant did not entirely state the content that it is difficult to pay the unpaid construction price according to the instant repayment order agreement, where the said public notice is given.

7) During the process of the collection amount case (U.S. District Court 2016Kadan17428) that was brought by ys engineering for the collection obligee company that seized the claim for the payment of the instant construction cost as the Plaintiff, the representative director, who entered into the instant construction contract and the instant agency contract, appeared as a witness and asked for a question as to whether the Defendant’s representative sought the consent on the order of repayment in this case, and talked that the consultation would have been defective later.” As to the question as to whether the “whether the land balance would have been settled earlier than the unpaid construction cost, it would be difficult to order the construction cost to take precedence over the unpaid construction cost.”

8) The instant mS drafted a factual confirmation (Evidence B No. 31) to the effect that the agreement on the instant repayment order exists at the early stage of the instant construction project. However, the said confirmation document is a document prepared after being present as a witness in the instant collection case, and it is difficult to believe that there is any part inconsistent with the testimony of the instant case and is inconsistent with the content of the said confirmation.

9) At the request of DDR Construction around November 2013, the Defendant paid KRW 2,075,250,222, out of the unpaid construction costs of DDR Comprehensive Construction reserved in the instant agency contract, prior to the payment of the principal and interest of the loan corresponding to the priority over the above construction costs under the instant agency agency contract. The circumstance that the Defendant sought the consent of lsC at the time of the payment is difficult to confirm by record.

10) The instant land sales contract and the instant security trust contract are concluded between the Defendant and HGJS trust or LSC, and the terms and conditions of the contract cannot be deemed immediately binding on the DR comprehensive construction that is not the party to each of the instant contracts.

Therefore, the evidence submitted by the Defendant alone is insufficient to acknowledge that there was an agreement between the Defendant and the DDR Construction Company on the payment of land remaining at the early stage of the instant construction project, and there is no other evidence to acknowledge otherwise.

Ultimately, the Defendant’s assertion that there exists an agreement on the instant repayment order from the beginning of the construction project of the instant officetel is without merit.

B. Determination on the assertion that the second attachment disposition of this case may be asserted against the agreement on July 17, 2014 in the order of repayment order

1) The defendant's assertion

Even if the agreement on the order of repayment was not reached at the early stage of the construction project of the instant officetel, the DDR General Construction and the Defendant settled the unpaid construction cost in KRW 718,749,778 on July 17, 2014, and agreed explicitly that the payment of the construction cost should be made in accordance with the instant repayment order agreement.

However, the scope of the first attachment of this case is limited to 395,393,630 won in arrears that occurred at the time, and thus, the disposal disposition of the unpaid construction price in excess of the above delinquent amount cannot be deemed to violate the prohibition of the first attachment. Ultimately, the defendant can oppose the claim for collection of the amount of the second attachment after the agreement on the order of repayment.

2) Determination

Where a seizure order has been issued against a monetary claim, the garnishee is prohibited from paying to the debtor, and the debtor is prohibited from disposing of and receiving the monetary claim (Article 227(1) of the Civil Execution Act). In such cases, the garnishee as well as extinguishing the monetary claim, and cannot perform any act such as reducing the value of the monetary claim by delaying the period, etc., and such act cannot be asserted against the creditor (see, e.g., Supreme Court Decision 98Da17930, Jun. 1, 2001).

The fact that the instant repayment order was reached on July 17, 2014 with respect to the payment of the construction price of this case between the Defendant and DDR Construction, as seen earlier.

However, on the other hand, the part of the attachment claims in the notice of attachment Nos. 1 and 2 of the instant case stated as "the amount equivalent to national taxes in arrears (including increased additional charges and expenses for disposition on default added later) out of the amount of accounts payable by the Defendant to the DR General Construction and the amount of transactions to be incurred in the future"

No. 395,393,630 won in total at the time of the first attachment disposition, the amount of arrears of the DDR comprehensive construction at the time of the first attachment disposition, and the title of this case

At the time of the second attachment disposition, the amount in arrears of the DDR General Construction was a total of 619,433,170, and the defendant served a notice of attachment demanding the payment of the amount in arrears under the first attachment disposition of this case from the plaintiff, and around three months passed after the delivery of the notice of attachment, and the fact that the DDR Construction and the settlement agreement of this case was reached is as seen above.

Therefore, even if the scope of the attachment of the first attachment disposition of this case is within the delinquent amount of DR comprehensive construction that occurred at the time as the defendant's assertion, it is apparent that the claim subject to attachment of the first attachment disposition of this case is the unpaid claim of this case. Thus, the settlement agreement of this case constitutes an act of disposal of the unpaid claim of this case, which is the claim subject to attachment of the first attachment disposition of this case, and thus, the settlement agreement of this case constitutes an act in violation of the first attachment disposition of this case which has already been delivered to the defendant and becomes effective before, and thus, is null and void in relation to

Therefore, the defendant, who is the garnishee of the first attachment disposition of this case, cannot assert and oppose the settlement agreement of this case in relation to the plaintiff, who is the execution creditor. Therefore, it is reasonable to view that the defendant cannot assert and oppose the settlement agreement of this case as in the second attachment disposition of this case, which was extended only to the scope of seizure for the same claim by the same execution creditor for the same purpose as in the first attachment disposition of this case.

Ultimately, the defendant's assertion on this part is without merit.

4. Conclusion

Thus, the plaintiff's claim of this case is justified, and the costs of lawsuit are assessed against the defendant.

The declaration of provisional execution shall be made as ordered by the application of Article 213 of the Civil Procedure Act.

shall be ruled.