Collection caused by seizure conducted prior to the due notice of transfer does not constitute unjust enrichment (state succession)

The attachment of a claim by the director of the tax office is legitimate attachment because it was conducted before the transferor's legitimate notification of transfer to the third party obligor. The collection resulting therefrom does not constitute unjust enrichment made without any legal ground.

Article 450 of the Civil Act

2014 Ghana 2985

AA Corporation

Korea

June 3, 2015

June 24, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant shall pay to the plaintiff ○○○○○ and the plaintiff 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

(a) Acquisition, etc. of the housing projects in this case;

1) The BB Construction Co., Ltd. (hereinafter “B Construction”) obtained approval for a housing project (hereinafter “instant housing project”) with respect to ○○○○○○○○○○-gun ○○○○○○○○-gun 556, 3018 square meters (hereinafter “instant site”)’s permission plan, and paid farmland preservation charges under Article 38 of the Agricultural District Court on the diversion of the instant site to the Korea Rural Community Corporation.

2) The Plaintiff acquired the instant housing project from BB Construction. On the other hand, BB Construction prepared and implemented a letter of waiver of the right to approval of the instant housing project plan to the Plaintiff, and each of the above statements stated that “B Construction shall transfer all rights, including public charges, to the Plaintiff, including all of the cost, following the approval of the instant housing project.”

(b) Farmland reinstatement, etc. following the revocation of approval for the plan for housing projects in this case;

1) On May 1, 2014, ○○○-gun revoked the approval of the housing construction project plan for BB construction, and sent to the Plaintiff an official document stating that the instant housing project plan approval was revoked. Accordingly, on June 9, 2014, the Plaintiff completed the restoration of the instant site to the original state as farmland and notified the ○○-gun of this fact.

2) On July 18, 2014, 00, ○○○○○○○○○○○○○, which was paid from BB construction, sent a letter to the Korea Rural Community Corporation stating that the said farmland preservation charges should be refunded.

C. Seizure and notification of claims of this case

1) Since March 2007, BB construction failed to pay the value-added tax and corporate tax due to the housing project activities of this case, so the value-added tax and corporate tax in arrears reached ○○○○○.

2) On October 20, 2014, in order to collect the amount of value-added tax and corporate tax in the BB construction on October 20, 2014, the EE Tax Office attached the farmland preservation charges refunded to the Korea Rural Community Corporation by BB construction (hereinafter “instant claims”), notified the Korea Rural Community Corporation of attachment on October 13, 2014. On October 27, 2014, the EE Tax Office collected farmland preservation charges ○○○○○○○○ and collected the said collected amount on October 28, 2014 as the amount of delinquent taxes in BB construction.

(d) Action to execute the procedure of notification of transfer; and

On June 11, 2014, the Plaintiff filed a lawsuit against BB construction in this court for the performance of the transfer notification procedure (2014da1623). On October 22, 2014, the court rendered a ruling that “B construction was transferred to the Korea Rural Community Corporation on August 12, 2011,” and the said ruling became final and conclusive on November 12, 2014.

Facts that there is no dispute over recognition, Gap evidence 1-1 through 3, Gap evidence 5, 6, Gap evidence 7-2, 3, Eul evidence 2 and 3. The purport of the whole pleadings is as follows.

2. The plaintiff's assertion

The Plaintiff was transferred the instant claim from BB Construction on August 12, 201. However, on October 20, 2014, EE Tax Office seized the instant claim on the grounds of the delinquency in payment by BB Construction, not the Plaintiff, and collected ○○○○○○○○○○, the claim amount of this case from the Korea Rural Community Corporation, without any legal grounds, constitutes an act of benefiting and thereby causing loss to the Plaintiff. Accordingly, the Defendant is obligated to refund the said claim to the Plaintiff and its delay damages.

3. Determination

On the other hand, the assignment of claims is effective only when the transferor notifies the third party debtor of the fact of the assignment of claims by the certificate with a fixed date (Article 450 of the Civil Act). According to the above basic facts, the court's decision that the BB construction, the transferor of the claim of this case, did not notify the Korea Rural Community Corporation, which is the third party debtor, of the fact of the transfer of the claim of this case, became final and conclusive on November 12, 2014. Thus, the notification of the transfer to the Korea Rural Community Corporation was made. Thus, the plaintiff cannot set up against the defendant, the third party before the legal notification of the transfer is made.

However, on October 20, 2014, before the notification date of the transfer, EE Tax Office attached the claim of this case to collect delinquent amount of BB Construction on October 20, 2014, and notified the Korea Rural Community Corporation of the seizure on October 23, 2014, and collected the amount of the claim on October 27, 2014, as seen earlier, it cannot be deemed that the seizure and collection of EE Tax Office was conducted without any legal cause. Accordingly, the prior plaintiff's assertion on other premise is without merit without any need to further examine.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.