Lawsuit of demurrer against distribution

Although there is no secured claim of the right to collateral security, the Defendants received each distribution as a seizure right holder of the relevant claim, and thus, the Defendants is obligated to return unjust enrichment equivalent to each corresponding dividend to the Plaintiff.

Article 30 of the National Tax Collection Act

2018 Single 6990 Distribution

AA citizen

Republic of Korea and 1

April 26, 2019

June 14, 2019

1. The Plaintiff; Defendant 1 paid KRW 3,773,540 to the Plaintiff; Defendant Republic of Korea paid KRW 3,510,969 to the Plaintiff, respectively.

2. The costs of lawsuit are assessed against the Defendants.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

(a) BB Construction Co., Ltd. (hereinafter “BB Construction”) is a company established for the purpose of reinforced concrete construction business, soil construction business, etc.

나. BB건설은 2015. 9. 17. CC건설 주식회사(이하 'CC건설'이라 한다)와 사이에, CC건설로부터 삼척시 토지에 CC리첼아파트를 신축하는 공사 중 잔여 철근콘크리트 공사(이하 '이 사건 공사'라 한다)를 공사대금 16억 7,000만 원, 공사기간 2015. 9. 17.부터 2016. 8. 30.까지로 정하여 하도급받기로 하는 내용의 공사하도급계약을 체결하였는데, 실제로는 원고가 건설업면허를 가진 BB건설로부터 명의를 빌려 BB건설 명의로 이 사건 공사를 시공하기로 하였다.다. 원고는 2015. 9. 22. BB건설과 사이에, 추후 원고가 이 사건 공사와 관련하여 근로자, 자재업자 등에게 노임, 자재비 등을 지급하지 않아 BB건설이 이를 지급하거나 지급할 채무를 부담하게 될 경우 원고가 BB건설에 대하여 부담하게 되는 구상금 채무를 담보하기 위하여, BB건설에게 원고 소유의 청주시 청원구 (이하 '이 사건 토지'라 한다)에 채권최고액 5,000만 원의 근저당권을 설정하여 주고, 이 사건 공사 완공시 원고가 노임, 자재비 등의 지급을 완료하였을 때 BB건설이 위 근저당권을 말소하여 주기로 하는 내용의 근저당권설정계약을 체결하고, 이에 따라 2015. 9. 25. BB건설에게 이 사건 토지에 관하여 채권최고액 5,000만 원, 채무자 원고, 근저당권자 BB건설로 된 근저당권설정등기를 마쳐주었다(이하 '이 사건 근저당권'이라 한다).

D. On January 19, 2016, when the Plaintiff had been performing the instant construction,CC Construction notified BB Construction that the instant construction should suspend the instant construction because it was in progress to convert the rental apartment due to the low sale rate of the said apartment. Accordingly, the instant construction was suspended.

E. BB Construction failed to pay the local tax of KRW 3,773,540 in total, including local income tax, to Defendant Seocho-gu Seoul Metropolitan Government, and Defendant 1 attached the instant collateral security right claim on January 6, 2017, and completed the said attachment registration on February 10, 2017.

F. BB Construction defaulted on Defendant Republic of Korea’s national tax of KRW 347,291,40,00, including value-added tax, and Defendant Republic of Korea attached the instant mortgage claim on March 15, 2018, and completed the said attachment registration on March 26, 2018 regarding the establishment registration of the instant neighboring mortgage.

G. Meanwhile, on November 2, 2017, Park E-E and Jeon R filed an application for a compulsory auction for the instant land with the Cheongju District Court 2017tag for the execution of its claim, and the auction procedure was conducted on or before November 2, 2017 (hereinafter “instant auction”), and on June 20, 2018 upon receipt of the decision to permit the sale of the instant land, the Plaintiff paid the sale price on or around June 20, 2018. (h) On July 11, 2018, the date of distribution of the instant auction, the sales price of KRW 3,773,540, out of the remainder after deducting the execution cost from the sale price of the instant land, which is the date of distribution of the instant auction, to Defendant 1, the person holding the right to seize the instant collateral security claim, and KRW 3,510,969, a distribution schedule was prepared.

I. The Plaintiff raised an objection to the distribution against the Defendants on the date of the above distribution, and filed a lawsuit of demurrer against the distribution within seven days thereafter, but the said objection was deemed to have been withdrawn due to the failure to submit the document attesting the fact of filing the lawsuit in this case to the auction court. Accordingly, each of the above dividends was paid to the Defendants.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 5, Eul evidence 1, Eul evidence 1 to 2, Eul evidence 1 and 2, the testimony of witness re-satisfy, the purport of the whole pleadings

2. The parties' assertion

The plaintiff discontinued the construction of this case due to the suspension of construction, and completed payment of wages, material costs, etc. to workers, material business operators, etc., and therefore, although there is no claim for reimbursement against the plaintiff of BB Construction, which is the secured claim of the mortgage of this case, the defendants received dividends as the seizure right holder for each of the claims secured by the mortgage of this case, the defendants are obligated to return unjust enrichment corresponding to each of the dividends to the plaintiff. Accordingly, the defendants asserted that the defendants have the obligation to return unjust enrichment corresponding to each of the dividends to the plaintiff. Accordingly, as long as the establishment registration of mortgage of this case remains not cancelled due to the cancellation of the registration of mortgage of this case, the secured claim equivalent to the above amount should exist. The defendants paid dividends to the defendants as the seizure right holder due to the delinquency of

3. Determination

The secured claim of the instant right to collateral security is a claim for indemnity against the Plaintiff when BB Construction fails to pay wages, material costs, etc. to workers, material business operators, etc. in connection with the instant construction. The secured claim of the instant right to collateral security is the time when the right to collateral security ceases to exist, i.e., the time when the right to collateral security ceases to exist, and the right to collateral security of the instant case is determined at the time of June 20, 2018 when the right to collateral security was paid the proceeds of the instant land. Accordingly, as a claim for indemnity against the Plaintiff of BB Construction around June 20, 2018, it is insufficient to acknowledge the secured claim of the instant right only with the facts and evidence recognized earlier, and there is no evidence to prove otherwise.

Therefore, even if there is no secured claim of the instant right to collateral security, the Defendants received each distribution as a seizure right holder of the instant claim. Therefore, the Defendants obtained profits equivalent to each of the pertinent dividends without any legal ground and incurred damages equivalent to the same amount to the Plaintiff. Therefore, the Defendants are obligated to return unjust enrichment equivalent to each of the pertinent dividends to the Plaintiff.

4. Conclusion

Therefore, the plaintiff's claim against the defendants is justified and it is so decided as per Disposition by the assent of all.