Busan District Court 2014Gadan203782 ( August 21, 2014)

National tax claims are granted priority rights to other claims in accordance with Article 35(1) of the Framework Act on National Taxes.

Since national tax claims are recognized as having priority over other claims pursuant to Article 35(1) of the Framework Act on National Taxes, 000 won of the right to claim payment of the deposit of this case shall be distributed first to the defendant, who is a national tax creditor, rather than the plaintiff, who is a provisional attachment and execution creditor.

Article 35 (1) of the Framework Act on National Taxes

2014Na45680 Demurrer against distribution

AASethyl Co.

Korea

Busan District Court Decision 2014Gadan203782 Decided August 21, 2014

March 5, 2015

April 2, 2015

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

Pursuant to the distribution schedule prepared by the same court on January 27, 2014, with respect to the distribution procedure case of Busan District Court 2013 Tagi0000, the amount of dividends to the defendant shall be KRW 000,000, and the amount of dividends to the plaintiff shall be corrected to KRW 000,000, respectively.

2. Purport of appeal

The same shall apply to the order.

1. Facts of recognition;

A. On May 3, 2012, CCC awarded a contract for the construction of a major complex building on the fourth floor above 00 - 00 -00 - 00 - 000 - 000 - (hereinafter “instant construction”) to BB integrated construction companies (hereinafter “B comprehensive construction”), and BB comprehensive construction subcontracted part of the instant construction to the following sub-contractors, including DD Construction Co., Ltd.

B. On August 17, 2012, the CCC made an agreement with the subcontractors to pay the balance of the construction cost directly (hereinafter “instant direct payment agreement”). The content is as follows (CC and DD Construction Co., Ltd. were made up between them and the other subcontractors in the same manner).

【Agreement on Non-Service】

1.In the subcontract between the contractor and the subcontractor under the above construction contract, the subcontract consideration shall be paid directly to the subcontractor in accordance with Article 35 of the Framework Act on the Construction Industry, Article 29 of the Enforcement Rule of the same Act, Article 14 of the Fair Transactions in Subcontracting Act, and Article 4 of

2. Methods and procedures for the direct payment of the subcontract price;

If a BB comprehensive construction (ju) fails to implement the payment date for subcontracted construction works of reinforced concrete among the "Gangmun-dong 00-dong 00-dong 00-dong 00-dong Do D Construction (ju), a CCC, the project owner, shall pay the subcontract price for reinforced concrete construction directly to DD Construction (ju) by October 20 after completion.

C. On September 24, 2012, the Plaintiff, at the Busan District Court, deemed KRW 000,000 for the Plaintiff’s BB comprehensive construction as the claim amount, received a provisional attachment order on the claim for construction price payment against BB comprehensive construction CCC. The said decision was served on the Busan District Court deposit official on September 24, 2012.

D. Accordingly, on November 2, 2012, the CCC deposited KRW 000 as the reason for deposit of the direct payments obligation and the Plaintiff’s provisional seizure against subcontractors by Busan District Court Decision 000, the deposited parties deposited KRW 100 with BB comprehensive construction and subcontractors (hereinafter “instant deposit”). The subcontractors filed a lawsuit seeking confirmation of the right to claim payment of deposit money and received a favorable payment or a decision of recommending a compromise.

E. Meanwhile, on September 2, 2013, the Defendant seized the claim for payment of deposit money of BB comprehensive construction as a tax claim, such as value added tax on BB comprehensive construction, and the notification was served on the Busan District Court deposit official on September 3, 2013.

F. On December 3, 2013, the Plaintiff received a seizure and collection order from the Busan District Court to claim the amount of KRW 000,000, including the above claim amount, and the seizure and collection order from BB General Construction’s claim for the above deposit amount as the subject claim, and the above order was served on the public official of the Busan District Court on December 6, 2013.

G. On December 6, 2013, the depository of Busan District Court reported the reason for deposit on the ground that the Plaintiff’s provisional attachment and the Defendant’s seizure amount coincide with each other regarding KRW 000,000, which was obtained by deducting the amount of the Plaintiff’s withdrawal from the above deposit, and the said court, on January 27, 2014, prepared a distribution schedule to distribute KRW 00 (including interest) to the Defendant and KRW 00 to the Plaintiff.

2. Determination on the cause of the claim

A. Summary of the plaintiff's assertion

The deposited money of this case is only the plaintiff who has secured the opposing power against the subcontractor and the subcontractor, and the BB comprehensive construction is merely the formal principal depositer for the execution deposit against the plaintiff, and only the subcontractor and the plaintiff have the right to claim a withdrawal of the deposited money, and the BB comprehensive construction has no right to do so.

Therefore, it is unreasonable to distribute 000 won to the Defendant on the premise that the BB integrated construction has the right to the payment, as it is unreasonable to distribute the remainder to the Plaintiff out of the instant deposit money, excluding the amount paid by the subcontractor.

B. Determination

Examining the facts admitted as seen earlier and the Plaintiff’s assertion, the key issue of this case is whether the right to claim for payment of the deposit money of this case is recognized.

1) Although the Plaintiff was designated as a person to whom the instant deposit was made, the Plaintiff asserted that it was merely a formality for the execution deposit against the Plaintiff, but it is difficult to accept it for the following reasons.

1. The deposit of this case shall include BB comprehensive construction as the depositee.

② The cause of the deposit of this case constitutes a repayment deposit between BB General Construction and subcontractors, and it constitutes an execution deposit against the Plaintiff.

③ At the time of the instant direct payment agreement, it cannot be deemed that the entire claim for the construction cost against BB General Construction was extinguished. On the premise that BB General Construction still bears obligations against subcontractors, in the instant direct payment agreement, if BB General Construction is directly paid to subcontractors by the due date for payment, CCC is decided to pay it, and in fact, BB General Construction was directly paid to subcontractors (Evidence A5 and 6) even after the instant direct payment agreement. Accordingly, at the time of the instant direct payment agreement, CCC’s direct payment agreement does not provide that CCC shall directly pay the construction cost to the subcontractors, but only if BB General Construction fails to pay the payment by the due date for payment, it is reasonable to deem that CCC’s claim for the construction cost against CB General Construction might be extinguished to the extent that CCC’s direct payment has become final and conclusive within the scope of the construction cost to be paid by the due date for the subcontractor at the time of the instant direct payment agreement.

2) As seen earlier, the cause of the instant deposit constitutes a deposit for repayment between BB General Construction and subcontractors, and the Plaintiff constitutes an enforcement deposit with respect to the Plaintiff. Since the existence of the claim between BB General Construction and subcontractors is finalized by the lawsuit seeking confirmation of the claim for payment of deposit money between the subcontractor and the subcontractor, the remainder is merely a matter of dividend among the creditors of BB General Construction and BB General Construction with respect to the claim for payment of the construction price against BB General Construction Co., Ltd.

However, as seen earlier, the Plaintiff’s provisional attachment and seizure, which is the creditor of BB comprehensive construction, and the Defendant’s seizure were concurrent with respect to the claim for the payment of the contract price against BB comprehensive construction and the claim for payment of the deposit of this case. Since value-added tax, wage and salary income tax, and corporate tax, which are national tax claims for BB comprehensive construction, are recognized as priority for other claims pursuant to Article 35(1) of the Framework Act on National Taxes, KRW 000 of the BB comprehensive construction’s claim for payment of the deposit of this case, shall be paid first to the Defendant, who is the creditor of the national tax, rather than

3. Conclusion

If so, the plaintiff's claim shall be dismissed due to the lack of reason. Since the judgment of the first instance court different from this conclusion is unfair, it is accepted by the defendant's appeal and dismissed the plaintiff's claim