In order for a creditor to exercise the debtor's monetary claim in subrogation, it must meet the requirements such as the right of preservation, the right of subrogation, the debtor's insolvency, etc.

In order for a creditor to exercise the debtor's monetary claim in subrogation, it must meet the requirements such as the right of preservation, the right of subrogation, the debtor's insolvency, etc.

Article 24 of the National Tax Collection Act

2013 Gohap9257 Unjust enrichment

AAA

Republic of Korea and 5

on 15, 2014

1. The plaintiff's action against the defendant is dismissed.

2. The plaintiff's HaBB, RCC, MaD, PE, and Category 】 】 The plaintiff's claim against the defendant Hab, GCC, E, x Category 】 respectively is dismissed. 3. The costs of lawsuit are assessed against the plaintiff.

1. Basic facts

A. On November 13, 1993, GG died on the following grounds: (a) the heir died on November 13, 1993; (b) the heir is HBB, GD, Defendant VoluntaryD, Defendant E, and Defendant HF (hereinafter referred to as “heir”). On August 1, 1996, the South Daegu District Tax Office determined the due date for payment to the heir on August 31, 1996, and imposed and notified KRW 3,325,402,211 of the inheritance tax (hereinafter referred to as “the initial disposition”). The initial disposition was issued on eight occasions until October 1, 2008, including the details of the imposition of inheritance tax, each corrective disposition, and each heir, and finally corrected the tax amount by eight times until December 1, 2008, and became final and conclusive as KRW 2,79,730,965, Feb. 2, 2008.

1) The director of the South Daegu District Tax Office, through voluntary payment and delinquent procedure, collected 3,283,437,140 won through 19 times from September 30, 1996 to November 30, 201, and appropriated additional 9,418,50 won and principal tax 2,324,018,590 won. 2) The director of the South Daegu District Tax Office imposed 3,805 won on March 11, 2002; 3,805,114,031 won; 4, the due date of payment of principal tax as of March 31, 2002; 3,50 won were collected from 30,50 won to 30,500 won; 4,50 won were collected from the Plaintiff on April 1, 2002 to 30, 196, 204, 2014, 206, 2014, 16,7, 2014, 4.7.2.

1) On February 25, 2004, the Plaintiff, against the Defendant Republic of Korea, collected additional dues of KRW 959,418,550 (hereinafter “instant additional dues”) after the said Defendant calculated the additional dues based on the original time limit for payment determined by the original disposition. Since the original disposition became invalid by the fourth disposition, the Plaintiff filed a lawsuit seeking restitution, etc. on the ground that the Plaintiff’s inheritance shares (57.5%) out of the instant additional dues calculated on the basis of the original time limit for payment determined by the original disposition constituted unjust enrichment.

2) The original disposition of increase becomes effective. Since the second disposition constitutes an increase or decrease in the original disposition, the additional dues of this case calculated and paid based on the original disposition constitute unjust enrichment of 459,418,50 won and additional dues of this case 412,951,189 won (the additional dues of this case 40.7) were 627,95,98,873 x 43.26% on September 4, 2007 and the additional dues of this case were 500,000 won and the additional dues of this case were 50,000 won and 470,000 won were 50,000 won and 207,000 won and 40,000 won were 50,000 won and 50,000 won were 67,00 won and 50,000 won were 67,000 won and 50,000 won.

D. Voluntary opening name and the death and inheritance status of the FF x (the application for the correction of name was accepted on May 16, 2012) x (the fact x x). The FF died on November 26, 2013, and the Defendant A and Defendant BB succeeded to its property (hereinafter referred to as “the Defendants, excluding Defendant Republic of Korea, who were the remaining Defendants of the Republic of Korea).

[Ground of recognition] The facts without dispute, Gap evidence 2 to 12, Gap evidence 17, Eul evidence 1 to 2, Eul evidence 1 to 1, Eul evidence 1 to 2, the whole purport of the pleading

A. The plaintiff's assertion

The refund money of this case appropriated for the increased amount of inheritance tax according to the 4th correction disposition has no effect of appropriation, or the cause of appropriation has ceased to exist by the 8th correction disposition. The refund money of this case to be refunded to the Plaintiff was appropriated for the tax payment notice of the 4th correction disposition by other inheritors in the relationship of joint and several tax liability with the Plaintiff. Therefore, the Plaintiff has the right to return the amount appropriated from other inheritors.

Therefore, the Plaintiff, on the basis of the amount of tax finally determined according to the 8th disposition against the Defendant Republic of Korea on behalf of the other Defendants, who were insolvent, due to the absence of responsible property, sought additional payment on the refund of gift tax of this case, 454,270,748 won and additional payment on the refund.

In a case where the obligee’s right to the obligor, which is to be preserved by subrogation, is a monetary claim against the obligee’s obligor in subrogation, the requirement for a lawsuit is that the obligor is in excess of the obligor’s obligation, namely, the obligor’s insolvency at the time of the closing of argument (see, e.g., Supreme Court Decisions 93Da28867, Oct. 8, 1993; 75Da1086, Jul. 13, 1976). If the obligor is not in insolvent as above, then the obligee’s subrogation lawsuit against the garnishee is illegal as it does not need to preserve.

However, the evidence submitted by the Plaintiff alone is insufficient to acknowledge the fact that the remaining Defendants are insolvent at the time of the conclusion of the argument in this case, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s lawsuit against the Defendant, who did not have the necessity

3. Determination as to the plaintiff's remaining Defendants' claims

A. The plaintiff's assertion

As seen in the above 2. It is unreasonable that the gift tax refund of this case is appropriated to the amount of inheritance tax increased by the fourth correction disposition. The Plaintiff, on behalf of the remaining Defendants, sought payment of KRW 454,270,748, which did not receive a refund from the Defendant Republic of Korea out of the refund of the gift tax of this case, and additional payment for the refund.

Furthermore, under the premise of the acceptance of the above subrogation lawsuit, the remaining Defendants seek payment of the said money to the Plaintiff immediately after receiving the said money from the Defendant Republic of Korea.

B. Determination

As above 2. The Plaintiff’s subrogation lawsuit against the Defendant Republic of Korea is unlawful because it does not meet the necessity of preservation. Therefore, the Plaintiff’s claim against the remainder of the Defendants premised on the acceptance of the said subrogation lawsuit is without merit without further examination.

4. Conclusion

Then, the plaintiff's lawsuit against the defendant Republic of Korea is dismissed, and the remaining defendants of the plaintiff are dismissed.

Each claim shall be dismissed, and it is so decided as per Disposition.