Korea’s distribution of capital gains tax to Korea is not unreasonable

Since the evidence submitted by the Plaintiff alone is insufficient to admit the Plaintiff’s assertion, it is not unreasonable that Korea received capital gains tax dividends.

Article 154 of the Civil Execution Act

2014 Gohap8589 Demurrer against distribution

○ ○

Korea

September 2, 2015

September 23, 2015

1. The plaintiff's action against the defendant A shall be dismissed.

2. The Plaintiff’s claim against Defendant BB, C, and Korea is dismissed, respectively.

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

Cheong-gu Office

Of the dividend table prepared by the above court on December 24, 2014, with respect to the auction case of the real estate rent of 2014 another district court, ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, each of the ○○○○○○○○○○○○○○○○○○○○○, each of which was set up by the above court, on the part of the dividend table prepared on December 24, 2014 in relation to the auction case of the real estate rent of ○○○○○○○○○○○○○○, each of which was set up against the Plaintiff, shall be corrected to

1. Basic facts

A. On January 20, 2014, on the instant real estate owned by the Plaintiff and AAA, D'D', the mortgagee’s application, had been initiated on January 20, 2014 by the district court 2014, ○○○○○○○○○○○ (hereinafter “instant voluntary auction procedure”).

B. On July 30, 2014, “D” transferred to Defendant B a claim secured by the right to collateral security on the instant real estate to Defendant B, and notified the Plaintiff of the fact of transfer on August 1, 2014.

C. In the instant voluntary auction procedure, on December 24, 2014, the distribution schedule was prepared as indicated below [Attachment 1] Nos. 1 through 4 (the only part against the Plaintiff and the Defendants in the actual distribution schedule; hereinafter “instant distribution schedule”). The Plaintiff attended the distribution schedule and stated an objection against the amount set forth in Nos. 5.

[Attachment 1: omitted of the instant distribution schedule]

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, 5, 7, the purport of the whole pleadings

2. Whether the lawsuit against Defendant A was lawful

A. Relevant legal principles

1) In case where the debtor raises an objection against the distribution schedule prepared in the distribution procedure, the debtor who has raised an objection against the creditor who does not have an executory exemplification shall file a lawsuit of demurrer against distribution, and the debtor who has raised an objection against the creditor who has an executory exemplification of executive titles shall file a lawsuit of objection against a claim (see, e.g., Articles 256 and 154(2) of the Civil Execution

2) If a debtor has raised an objection against a creditor who has an executory exemplification of executive titles on the date of distribution, and thereafter filed a lawsuit of demurrer against the said creditor, not a lawsuit of demurrer against the said creditor, the said lawsuit of demurrer against distribution is unlawful (see, e.g., Supreme Court Decisions 2004Da72464, Apr. 14, 2005; 2013Da86403, Apr. 23, 2015).

B. Determination

1) In addition to the purport of the entire pleadings in the statement No. 1 of Eul (including the provisional number), the fact that the defendant Ga Co., Ltd. (hereinafter referred to as "Ga") (hereinafter referred to as "Ga") received dividends from ○○○○○○ in a final and conclusive judgment (the case of the district court 2013 Gao○○○○○○○) may be acknowledged in the voluntary auction procedure of the instant case.

2) Since Defendant A is a creditor who has an executory exemplification of executive titles, the Plaintiff filed a lawsuit of demurrer against Defendant A as to the dividend amount, despite having filed a lawsuit of demurrer against Defendant A as to the said dividend amount.

3) The Plaintiff’s lawsuit against Defendant A is unlawful (in compliance with the Plaintiff’s statement on the evidence No. 1, even if following the date of distribution, the executing court judge notified the Plaintiff who stated an objection on the date of distribution that he/she filed a lawsuit of objection against Party A.).

3. Claims against Defendant BB, C, and Korea:

A. The plaintiff's assertion

1) Defendant Ghana purchased the Plaintiff’s claim against ○○○○○○○○○○○○○○○○ in fact from Ra. It is unreasonable for Defendant Ghana to receive the payment of interest on ○○○○○○○○○○ in the instant voluntary auction procedure.

2) At the time of concluding a loan contract with the Plaintiff that the Defendant is the Defendant, the Plaintiff’s interest rate was reduced or exempted. It is unreasonable for Defendant C to receive a dividend of the interest rate during the instant voluntary auction procedure.

3) The Plaintiff purchased a lot of land ○○○○ 292-1, but sold at a lower price than the purchase price. Nevertheless, the Defendant Republic of Korea imposed transfer tax on this case in violation of the substance over form principle. In the instant voluntary auction procedure, it is unreasonable for the Defendant Republic of Korea to receive transfer income tax dividends.

4) Therefore, the instant distribution schedule must be revised as stated in the purport of the claim.

B. Determination

The evidence submitted by the Plaintiff alone is insufficient to admit the Plaintiff’s assertion, and there is no other evidence to acknowledge it. The Plaintiff’s assertion is without merit.

4. Conclusion

The Plaintiff’s lawsuit against Defendant A is unlawful and dismissed. The Plaintiff’s claim against Defendant B, C, and Korea is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.