It is difficult to recognize that the Defendant knew or was unaware of the fact that the defaulter embezzleds the funds of the corporation due to gross negligence.

Since it is difficult to recognize that the Defendant received funds from her husband who is a delinquent taxpayer either knew or was unable to know due to gross negligence, it is difficult to recognize liability for damages due to joint tort.

§ 404. Contents of unjust enrichment § 741. Contents of unjust enrichment in civil law § 75.

Daejeon District Court Decision 2016-Tym-102873 (02.09 December 2018)

Korea

00

. 12, 2018

8.02.09

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

With respect to KRW 52,00,000 and KRW 545,000 among them, the Defendant shall pay to the Plaintiff 52,00,000 with interest of KRW 545,00 per annum from October 29, 2014 to the delivery date of a copy of each complaint in this case, from November 14, 2014 to the delivery date of a copy of each complaint in this case, and 15% per annum from the next day to the day of complete payment.

1. Basic facts

A. Criteria on October 12, 2016 for △△△ Trade Co., Ltd. (hereinafter referred to as “△△△”)

The value-added tax and corporate tax of 14,046,967,420 won were delinquent against the defendant.

(b) The representative director and the representative director of △△ Trade, Ltd., and the knives industry (hereinafter referred to as 'boom industry

The supplier shall not engage in the actual transaction on September 26, 2014, 200, the actual operator of which is the supplier, 'brest industry', and supply.

Tax amount of KRW 551,232,00 (including value-added tax) paid to a person who receives a person from △△△

51,232,00 won on the above tax invoice shall be issued and 551,232,00 won shall be in the account of △△ Trade.

After withdrawal, 501,120,000 won, excluding value-added tax, out of the above money, was deposited into the account of knives industry, and on October 28, 2014, from the knives industry account to the account of the defendant, 500 million won out of the above 501,120,000 won was transferred from the knives industry account to the account of the defendant.

C. Full00 won was transferred from △△ Trade Account to 45 million won on October 28, 2014, and KRW 7 million on November 13, 2014, and KRW 52 million, respectively, to the Defendant’s account, respectively.

D. On October 1, 2014, the Defendant concluded a lease agreement between 00 and 00,000-dong 00,000 apartment units, and 101-dong 00,000, and as above, deposited on October 28, 2014, KRW 540 million out of KRW 545,000,000,000 on the same day and paid to 00,00,000 as a lease deposit.

Facts without any dispute, Gap's 1 through 8, 11, and 22, and the purport of the whole pleadings.

2. Summary of the plaintiff's ground of claim

The 00th, as seen from the basic facts, was in a transaction between △△ Trade and Maternal Industry.

Method of transferring money from the most likely to have been or from the △△ Trade Account to the defendant's account;

The Defendant embezzleds the funds of △△ Trade. The Defendant, as the basic facts, KRW 550 million.

At the time of receipt, it was known that the source of the said money embezzled the said money to △△ Trade.

Since the defendant did not know that he was grossly negligent, the defendant made unjust enrichment of the above amount.

In addition, the defendant is obligated to return a considerable amount of the above money to △△ Trade as unjust enrichment.

Defendant’s participation in the above embezzlement act by 00, and △△ Trade

In addition, since embezzlement has been committed, the defendant has suffered from tort against △△ Trade.

There is a duty to pay the amount equivalent to the above money with compensation.

The Plaintiff, as a national tax creditor of △△ Trade, is the Defendant in subrogation of insolvent △△ Trade.

52 million won shall be claimed as compensation for unjust enrichment or tort.

3. Determination

(a) the existence of the preserved claim and the need for its preservation;

As of October 12, 2016, the Plaintiff’s total amount of KRW 14,046,967,420 on △△△ Trade

the fact that a claim for national tax (value added tax and corporate tax) has been made shall be as shown in the basic facts, and

A creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's claim

It argues to the effect that the imposition of value-added tax and corporate tax is unfair, but △△ Trade

The disposition did not raise an objection against the disposition or a lawsuit seeking its revocation; and

Since there is no reason to regard the disposition of imposition as invalid as a matter of course, the above argument is without merit.

Meanwhile, in full view of the overall purport of the pleadings, the △△ Trade closed on December 31, 2015, and the 2014 business year corporate tax assessment table in 2014, comprehensively taking account of the respective descriptions of the evidence Nos. 13, 14, and 16-1.

According to the standard balance sheet submitted as accompanying documents, active property of △△△ Trade as of December 31, 201 shall be KRW 13,722,128,21, and passive property shall be deemed as 8,904,623,729, and fact-finding facts as of December 31, 2014.

As of the date of the closing of the argument in this case, it is reasonable to view that the △△ Trade is in an insolvent state as of the date of the closing of the argument in this case. Therefore, the plaintiff is in an insolvent state.

The need to exercise the claims in subrogation of △△ in order to preserve the above national tax claims.

Recognized.

B. Determination as to the existence of subrogation claim

1) Determination as to the existence of a claim for return of unjust enrichment

A) The unjust enrichment system imposes an obligation to return money on an benefiting party based on the ideology of fairness and justice in cases where the benefiting party’s financial gain lacks legal cause. However, in cases where the obligor uses the money embezzled by the victim to repay his/her obligation to his/her creditor, it is reasonable to deem that the obligee’s acquisition of money has legal cause in relation to the victim, unless it is maliciously or with gross negligence as to the fact that the money was embezzled while the obligee received repayment. Such legal principle also applies to cases where the obligor donated the money embezzled to a third party (see, e.g., Supreme Court Decision 2011Da74246, Jan. 12, 2012)

B) As seen in the basic facts, as if there was no substantial transaction between △△ Industry and △△ Industry, 51,232,00 won was issued as if there was a transaction, and 501,120,000 won was deposited into the account of △△△ Industry, and thereafter, 500,000 won was deposited into the Defendant’s account among the above 501,120,000 won was deposited into the Defendant’s account. Such an act of 00 won was either embezzled all the above 551,232,00 won in relation to △△△ Trade, or embezzled KRW 50,500,000 deposited to the Defendant. In addition, without any reason, △△△△△△△’s above act should also be deemed as having been donated to the Defendant’s account, and △△△△△△ KRW 500,500,0000,000,000,000 won was paid to the Defendant.

According to each statement of evidence Nos. 18, 24, and 25, the defendant entered △△△ in around March 2014 and was in charge of the overseas affairs of the company, New Zealand, etc., from around April 2014 to about December 5, 2014, and was married with static0 on December 5, 2014, and the static00 was unfairly received a false tax invoice without a real transaction from July 1, 2013 to June 30, 2015.

May 2016 under the Act on the Aggravated Punishment, etc. of Specific Crimes (taxes), etc. that were refunded.

1.3.2.2.3.2. 1. 2. 1. 2. 1. 2.

The fact that the defendant is investigating, from March 31, 2015 to December 2014 of the same year, is employed as an employee in charge of overseas affairs, such as New Zealand in △△ Trade, and exports refined 00 et al. and old traps.

After re-import of the goods as they are exported, the import declaration amount higher than the export declaration amount;

foreign action, such as New Zealand, to the extent that the difference between the remittance amount of the export payment and the amount of the export payment after reporting;

1. Accomer’s participation in the capital flight of 100 property by means of remitting money to an account in the name of the second Pacomer.

C. The suspension of indictment for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (property flight outside Korea)

Facts of receipt of the disposition are recognized.

However, the following circumstances are revealed by taking account of the aforementioned evidence and the overall purport of the pleading.

In light of the above facts, the above facts alone are only KRW 552 million deposited to the defendant by 00 million.

The Defendant knew or did not know by gross negligence that this amount was embezzled by 00

It is difficult to recognize it and there is no other evidence to recognize it.

① Around December 2014, the Defendant did not work for the first time in △△ Trade before being married with △△△ in December 2014. The Defendant appears to have been simply involved in the management of the property escape from New Zealand under the direction of 00 even at the time when the Defendant worked for △△ Trade. Therefore, it is difficult to readily conclude that the Defendant was aware of the fact that the Defendant was aware of the fact that there was a transaction between △△ Trade and △△△ Industry, and that there was a transaction between △△△ Industry and △△△ Change Industry by paying the money equivalent to the above tax invoice to △△△ Industry.

② At the time of remitting KRW 52,00,000 to the Defendant’s account, the deposited person’s name was not the trade of △△ or dives industry, but the deposited person’s name was 100.0

③ Although the money deposited into the Defendant’s account is the larger amount of KRW 552 million, the money was deposited to the Defendant so that most of the said money was used to rent an apartment building to be used as a residence with the Defendant. Meanwhile, given that △△ Trade representative director and △△△ representative director and the actual operation of the knives industry, it is difficult to view that the Defendant knew or could have known that the said money was illegally prepared solely on the ground that the amount of money deposited is large.

C) If so, the Defendant’s receipt of KRW 52 million from 00,000 from 552 million cannot be deemed as unjust enrichment in relation to △△ Trade.

2) Determination as to the existence of damage liability arising from joint tort

The evidence submitted by the Plaintiff in light of the various facts and circumstances described in sub-paragraph (b) above.

They are not enough to recognize that the defendant jointly participated in the embezzlement of 00.

There is no evidence to acknowledge otherwise. Accordingly, the Defendant is liable for damages caused by embezzlement.

shall not be deemed to have any objection.

4. Conclusion

Therefore, all of the plaintiff's claims are dismissed as it is without merit. It is so decided as per Disposition.