The legality of seizure of claims secured by the right to collateral security

If there is no secured claim of the right to collateral security, the seizure order shall be null and void, and in case of cancelling the right to collateral security, the seizure authority shall be a third party with an interest in the registration and be obliged to express his/her consent to cancel the right to collateral security.

Article 24 of the National Tax Collection Act

2017 Ba61562 Revocation of Fraudulent Act

Korea

AA

on October 28, 2019

on October 15, 2019

1. The plaintiff

A. Defendant KK General Construction Co., Ltd. implements the procedure for registration of cancellation of the registration of the establishment of a neighboring mortgage completed on August 3, 2006 as the receipt No. 0000, for each real estate listed in the separate sheet.

B. The defendant Republic of Korea expressed its intention of acceptance on the registration of cancellation of the establishment registration of each of the above establishment of a mortgage.

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

The same shall apply to the order.

1. Basic facts

A. The plaintiff, SS (the representative director of the defendant KK General Construction Co., Ltd. (hereinafter referred to as the "defendant company") and Yang Young-dae (the director of the defendant company) jointly promote the construction project of 00 dong 00 dong 000 and 000 dong 1, Jin-ju (hereinafter referred to as the "project in this case") and the plaintiff was appointed as the representative director on March 20, 2006.

B. The instant project failed to secure land necessary for the implementation of the project thereafter, and it was properly promoted.

On June 30, 2006, the Plaintiff prepared a written confirmation as follows with respect to cross-ro newspapers for the Defendant Company and the stock company, the investors, and on August 3, 2006, each of the real estate listed in the separate list owned by the Plaintiff (hereinafter referred to as the “each of the instant land”). On August 3, 2006, the Plaintiff created the right to collateral security (hereinafter referred to as the “mortgage”) with respect to the Defendant Company, the maximum debt amount of KRW 100,000,000 for the real estate indicated in the separate list owned by the Plaintiff.

C. On January 20, 2014, Defendant Republic of Korea attached the secured debt of the instant right to collateral security and completed additional registration on the grounds of delinquency, such as corporate tax, etc. of Defendant Company.

As to the defendant company based on recognition: Confession

For Korea: Evidence A 1 to 4, Evidence A to 4 to 6, No. 3

Each entry in 2 to 4-2 and the purport of the whole pleadings;

2. Determination

A. Part of claim against the defendant company

With respect to the plaintiff's filing of cancellation of the right to collateral security of this case by asserting the absence of secured claim, the defendant company was served with a notice of date by public notice and did not appear on the date for pleading. In accordance with Article 150 (3) of the Civil Procedure Act, the defendant company shall be deemed to have led

Therefore, the Defendant Company is obligated to cancel the instant collateral security to the Plaintiff.

B. Part of the claim against the defendant Republic of Korea

(i)the existence of the covered claim

In a lawsuit seeking confirmation of existence of a pecuniary obligation, if the plaintiff, who is the debtor, claims first, denies the fact of the cause of the obligation by specifying the claim first, the defendant, the creditor, bears the burden of asserting and proving the facts of the requirement of legal relationship (see, e.g., Supreme Court Decision 2007Da67772, May 31, 2007). If the debtor denies the occurrence of the secured claim and seeks cancellation of the right to collateral, the debtor, in accordance with the above legal doctrine, bears the burden of asserting and proving the occurrence and scope of the secured claim.

The secured claim of the instant right to collateral security is the damage claim that the Defendant Company has against the Plaintiff on the basis of the written confirmation of June 30, 2006. However, the fact that the Plaintiff stated in the said written confirmation that the Plaintiff “if earJECT incurs any loss to ear in connection with the instant PCRT, it would have been recognized that the Defendant Company would compensate for the amount of KRW 00,000,000,000,000,000,000,000,000,000,000

Rather, according to the evidence Nos. 3 and 8-1 and 2 of the evidence Nos. 8-2, the defendant company applied for voluntary auction of each of the instant lands on August 24, 2010 based on the instant collateral security right, but the request for auction was dismissed on July 6, 2011, and the defendant company filed a lawsuit against the plaintiff on September 12, 2016 to seek compensation of KRW 100,000,000 for damages (this court is less than 00,000,000) but it is recognized that the lawsuit was withdrawn on May 10, 2017, respectively. In full view of these circumstances, it is insufficient to acknowledge that the defendant company has any damage claim against the plaintiff solely on the content of the said written confirmation.

Therefore, it is reasonable to view that the secured claim of the instant right to collateral security does not exist.

B. The obligation to consent of the Defendant Republic of Korea

In the event that a claim bearing a right to collateral security is seized, the purpose of registering the seizure of the right to collateral security by means of additional registration in the registration of creation of the right to collateral security is to publicly announce the seizure of the right to collateral security, which is subordinate to the security upon the seizure of the right to collateral security. Thus, if the right to collateral security does not exist, the seizure order shall be null and void. In the event the right to collateral security is cancelled, a third party with a interest in registration shall express his/her consent to the cancellation of the right to collateral security (Supreme Court Decision 2009Da72070 Decided December 24, 2009, etc.).

As seen earlier, the right to seize the secured claim of this case does not exist. As such, the right to seize the secured claim of this case

Defendant Republic of Korea, entered as a person, is a third party having an interest in the registration, and is obligated to express his/her consent to the cancellation of the instant mortgage.

3. Conclusion

The plaintiff's claim against the defendants is justified, and all of them are accepted.