Demurrer against distribution

Whether any priority exists between the plaintiff claiming that the attached delinquent taxpayer's claim on the distributed amount after the sale of real estate and the claim on the mortgaged claim has been taken over.

Article 35 of the National Tax Collection Act

2014Na2011534 Demurrer against distribution

AA Telecommunications Corporation

BB Life Insurance et al.

March 5, 2015

March 19, 2015

1. All appeals filed by the Plaintiff (Appointed Party) against the Defendants are dismissed.

2. The costs of appeal shall be borne by the Plaintiff (Appointed Party).

1. Revocation of the judgment of the first instance court of the Gu.

2. In the distribution schedule prepared on December 7, 2012 by the above court with respect to the auction case of real estate rent in Seoul Eastern District Court 2010ta, the amount of dividends to Defendant BB life insurance companies, the amount of dividends to Defendant BB life insurance companies, the amount of dividends to Defendant BCC, the amount of dividends to the Republic of Korea is KRW 0,000,000 for the Plaintiff (appointed parties), the amount of dividends to the appointed parties is KRW 0,00,000 for the appointed parties, KRW 0,000 for the designated parties, KRW 0 for the amount of dividends to the Kim F, KRW 3,000 for the designated parties, and KRW 0 for the amount of dividends to the Kim F, as KRW 3,000 for each of them, and KRW 0 for the amount of dividends to the appointed parties, KRW 30,000 for the money auction case of the above real estate in Seoul East District Court 2010 and KRW 1404,00 for each of the appointed parties to the claim.

1. Quotation of judgment of the first instance;

The court's reasoning for this case is that "No. 1" was added to "No. 5, No. 17, No. 20 of the judgment of the court of first instance after "No. 5, No. 17, No. 6 of the judgment of the court of first instance," and "No. 11, No. 36 of the judgment of the court of first instance. 35, and No. 36 of the court of first instance" added to "No. 1, No. 5, No. 17 of the judgment of the court of first instance" and "No. 6 of the judgment of the court of first instance" (the notice of assignment of evidence No. 36 was sent only after the date on November 24, 2014 after the date on which the plaintiff's claim for this transfer was made)" and "no other evidence to acknowledge this is found," and this is cited as the judgment of the court of first instance as it is in accordance with the main sentence of Article 20 of the Civil Procedure Act, except for the following matters asserted by the plaintiff company:

2. Additional determination

A. As to the claim against Defendant PCC

1) The plaintiff company's assertion

A) On November 16, 2007, NAE transferred the instant secured debt to the Plaintiff Company, and notified this GG of the fact that the said secured debt was transferred. However, although the Defendant did not have acquired the said secured debt, the Defendant’s distribution column forged relevant documents and completed the additional registration on the transfer of this case (i).

B) Even if Defendant AbCC was to have taken over the above secured debt, the SelectionE did not notify thisG of the fact of the assignment of the claim to the obligor. As such, Defendant AbCC failed to meet the requirements for setting up against the assignment of claim (B).

2) Determination

A) First, it is difficult to believe that the allegation No. 33 and No. 34 was consistent with the argument that the Health Team, the Appointor, and the EE transferred the secured debt of the instant 2-mortgage to the Plaintiff company on November 16, 2007 (the notice of assignment of the certificate of assignment No. 34 was sent to November 24, 2014 after the lapse of at least seven years from the date of the above assertion) and there is no other evidence to acknowledge otherwise.

Furthermore, comprehensively taking account of the overall purport of the arguments in Gap's evidence Nos. 3, 21, 22 and Eul's evidence Nos. 1 and 5 and the testimony of the court of first instance at the time (in order of the former names), it is not sufficient to acknowledge the above transfer certificate only with the statement of No. 19 and 23 evidence, and there is no other evidence to acknowledge it. Rather, according to each of the above evidence, it is reasonable to recognize that the above transfer of the secured debt to the defendant 200 billion won on August 6, 2008, the transfer of the bonds and the certificate of transfer of the right to collateral security (Evidence No. 21-2) is to transfer the bonds and the certificate of transfer of the right to collateral security (Evidence No. 21-2), and that the above transfer of the secured debt to the defendant 28 billion won on which the above transfer was duly signed and sealed by the defendant 200,000 won on August 6, 2008.

B) Next, the claimant of the secured claim with the mortgage can file an application for auction even if he/she fails to meet the requirements for setting up against the transfer of claim, after completing the additional registration before the mortgage is completed. The debtor can bring an objection against the decision on commencement of auction or immediate appeal procedure on the ground that he/she fails to meet the requirements for setting up against the transfer of claim as an interested party in the auction procedure. In such case, the claimant must prove that he/she satisfies the requirements for setting up against the auction. However, if the auction procedure commenced upon the request of the transferee of the claim and the right to collateral security through such procedure is not effective, the auction procedure is legitimate and the applicant can obtain the repayment of the transferee's claim (see, e.g., Supreme Court Decision 2004Da29279, Jun. 23, 2005). Thus, so long as the voluntary auction procedure of this case commenced upon the application of the defendant NCC, which is the request for auction procedure, is not effective, the plaintiff's claim against the Republic of Korea.

1) The plaintiff company's assertion

A) Since the correction notification of this case on October 1, 2009, as claimed by the Defendant Republic of Korea, was not reached to NAE, the Defendant Republic of Korea did not acquire the right to collect the claims subject to seizure (i).

B) Defendant Republic of Korea is not entitled to a distribution prior to the Plaintiff, etc., who is a junior dividend holder, because Defendant Republic of Korea did not make a request for a distribution period after the seizure of this case.

C) Since the national tax claim against the designated parties NaE of the Republic of Korea was reduced later and the seizure of this case does not reach the amount of the claims subject to the seizure of this case (III).

2) Determination

A) First, as to the argument, Article 12(1) of the Framework Act on National Taxes provides that the document served pursuant to the provisions of Article 8 of the same Act takes effect when the document reaches the person to be served with the document, and Article 10(2) of the same Act provides that the document served with respect to the notice of tax payment by mail shall be served by registered mail. The burden of proving the absence of a notice of tax payment or illegality exists in principle on the part of the taxpayer (see, e.g., Supreme Court Decision 9Da1260, Jun. 1, 2001). Thus, there is no evidence to support that the notice of correction in this case did not reach NaE, and thus, the plaintiff company’s above argument 1 is without merit.

B) Next, as to the assertion (2), before the registration of the commencement of auction on real estate and the commencement of auction on real estate

In the event a seizure registration under the disposition on default was completed, the State naturally takes the same effect as the demand for distribution under the Civil Procedure Act, even if it did not make a request for delivery under Article 56 of the National Tax Collection Act (see, e.g., Supreme Court Decision 2001Da11055, Jan. 25, 2002). The fact that the Defendant Republic of Korea seized the instant claim on the garnishee-mortgage-mortgage-mortgage-mortgage-mortgage-backed claims in order to preserve the national tax claims in arrears by the designated parties NaE on August 27, 2009, prior to the decision to commence the sale of the instant real estate. Therefore, the Plaintiff Company’s aforementioned assertion is not acceptable.

C) Finally, there is no evidence to prove that the amount of national tax (global income tax) against the SelectionE of the Defendant Republic of Korea was reduced to the amount of the seized claim amount, and rather, according to the evidence Nos. 3-1 through 4 of the evidence Nos. 3-2, the Defendant Republic of Korea has increased the amount of the global income tax for the SelectionE in 2004 or the amount belonging to the year 2007 as of October 1, 2009 at first and above the amount of the OOE. As such, the instant seizure was conducted within the limit of the amount of the national tax claim against the AppointE, and on any other premise, the Plaintiff Company’s assertion was without merit.

3. Conclusion

The judgment of the first instance is legitimate, and all appeals filed against the Defendants by the Plaintiff Company are dismissed as it is without merit.