Seoul Eastern District Court 2010 Gohap1443 ( October 28, 2011)

It is not necessary for the plaintiff to preserve a taxation claim by exercising the subrogation right of the creditor.

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Article 404 of the Civil Act

2011Na37386 Claims, etc.

Korea

00AA

Seoul Eastern District Court Decision 2010Gahap14443 Decided April 28, 2011

September 26, 2012

October 26, 2012

1. Revocation of a judgment of the first instance;

2. The main part of the lawsuit in this case shall be dismissed.

3. The plaintiff's conjunctive claim is dismissed.

4. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The primary claim: The defendant shall pay to the plaintiff 00 won and 5% per annum from the day this decision became final to the day of complete payment.

Preliminary claim: The defendant and 00 won gift contract concluded on July 17, 2009 between the defendant and 0B shall be revoked, and the defendant shall pay to the plaintiff the amount calculated at the rate of 5% per annum from the day after the judgment became final to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

1. Factual basis

A. On February 15, 2008, the Defendant borrowed KRW 000 from theCC bank (hereinafter “CC bank”), and on February 18, 2009, the Defendant’s attached 0B set up a collateral security right (hereinafter “instant collateral security right”) with respect to the Seoul Jongno-gu OOO00 large scale 221.6m21.6m2 and 000m2 above ground (hereinafter “instant real property”).

B. White on June 30, 2009, sold the instant real estate to the FFFF (hereinafter “FFFF”) on KRW 000.

C. On July 17, 2009, 000 won of the Defendant’s loan to CCB was subrogated and cancelled the instant mortgage, and completed the registration of ownership transfer on the instant real estate in the name of FFF.

D. On September 17, 2009, 00 won was returned to the head of the Dongdaemun-gu Tax Office to the head of the tax office having jurisdiction over the transfer income tax due to the sale of the instant real estate, but did not voluntarily pay it. On January 2, 2010, the head of the tax office of Seodaemun-gu notified the 000 capital gains tax to 00 won, and on August 13, 2010, the tax amount in arrears resulted in KRW 00 won.

E. On December 16, 2010, 010, 00B died in the absence of any other property. The statutory inheritor of 0B was found in the Defendant, the Defendant, 0G, 0H, White, White, White, White and White, and WhiteM, and among them, the Defendant, White, and White, and White, reported the renunciation of inheritance to the Seoul Family Court and was tried on June 10, 201 to accept the report.

[Reasons for Recognition] The non-speed facts, Gap 1, 2, 3, 5, and 6, and Eul 1, and 12 (including household numbers), and the purport of the whole pleadings

2. Judgment as to the main claim

A. The plaintiff's assertion

The Plaintiff is a creditor who has a transfer income tax claim against 00 won against 00 won on behalf of the Defendant, and 00 won on behalf of 00 won on behalf of 00 won on the Defendant, and 00 won on the charge of 00 won on the charge of 00 won on the charge of 00 won on the charge of 00 won on the charge of 00 won on the charge of 00 won on the charge of 00 won on the charge of 0B on the part of 0B’s creditor.

B. The defendant's main defense

Since the heir of 0B is not in insolvent, the plaintiff cannot make a claim for reimbursement on behalf of the heir. Therefore, the plaintiff's primary claim is unlawful because it does not meet the requirements for subrogation of creditor.

C. Determination

We examine the Defendant’s defense of safety. According to the facts found in the facts, 00 won was charged to the Plaintiff before the birth, and 000 won was charged to the Defendant by subrogation of the Defendant’s loan obligation. However, 00 won was succeeded to 0B’s tax obligation due to the death of 0B, 00,000 children who did not report the renunciation of inheritance, and 00 won was succeeded to 0J, 0K and 00,000,000,000 won was succeeded to 0,000,000,000,000,0000 won was paid to the Defendant. If the Plaintiff acted in subrogation of the said claim, the subrogation would be the above inheritor, and there is no evidence to prove the fact that the above inheritor was insolvent. Accordingly, the Plaintiff cannot find the need to preserve the taxation claim by subrogation

3. Judgment on the conjunctive claim

A. The plaintiff's assertion

The 000 won of the Defendant’s loan by subrogation is deemed to have been donated to the Defendant, and since the above donation was placed in excess of the obligation, the contract between 0B and the Defendant constitutes fraudulent act. Therefore, such contract of donation should be revoked, and the Defendant should pay KRW 00 to the Plaintiff, the creditor of 00,000.

B. Determination

The fact that 0B made a substitute payment for the Defendant for the Defendant’s loan obligation and did not exercise the right to demand reimbursement against the Defendant until his death is in dispute between the parties. However, according to the evidence No. 6-1, it can be recognized that 0B agreed to cancel the instant mortgage before selling the instant real estate to the FFF and receiving the balance. In light of this, 0B appears to have made a substitute payment for the Defendant’s loan obligation to perform the obligation to cancel the instant mortgage in accordance with the above sales contract. As such, the mere fact that 0B did not exercise the right to demand reimbursement against the Defendant, who is the obligor after making a substitute payment for the secured obligation, is difficult to deem that 0B made a substitute payment to the Defendant, and there is no other evidence to acknowledge the fact of donation. Accordingly, the Plaintiff’s conjunctive claim based on the premise that 00 won was donated to the Defendant by 00 won cannot be accepted.

4. Conclusion

Therefore, the main claim in the lawsuit in this case should be dismissed, and the plaintiff's conjunctive claim should be dismissed, and the judgment of the court of first instance that concluded differently was erroneous. Accordingly, the judgment of the court of first instance shall be revoked, and the main claim in this case shall be dismissed, and the plaintiff's conjunctive claim shall be dismissed. It is so decided as per Disposition.