Seoul Central District Court 2008Kadan193633 ( October 27, 2011)

Intervention by succession to a lawsuit in the Republic of Korea is justified.

The Republic of Korea seizes the Plaintiff’s claim for indemnity against the Defendant, etc. based on the amount of national taxes in arrears and conducts the instant lawsuit on behalf of the Plaintiff is a person legally interested in the outcome of the instant lawsuit

2011Na37475 Claims

(Withdrawal)

KimA

The Intervenor succeeding the Plaintiff

Korea

Intervenor succeeding the Plaintiff’s Intervenor

KimA

Defendant (Appointed Party, Appellant)

KimB

Seoul Central District Court Decision 2008Gadan193633 Decided July 27, 201

April 4, 2014

May 27, 2014

1.The judgment of the first instance shall be modified as follows:

A. For the Intervenor’s Intervenor, the Defendant (Appointed Party) KimB, the Selected KimCC, and the Selected KimCC, each OOOOOD, each OOOOOE, EE, EOOOOE, EF each of them, and 5% per annum from June 29, 199 to May 27, 2014, and 20% per annum from the following day to the date of full payment.

B. The Plaintiff’s succeeding intervenor’s remaining claims against Defendant (Appointed Party) KimB, Appointed, KimCC, EE, and EF are dismissed, respectively.

2. 70% of the total costs of the litigation shall be borne by the Intervenor succeeding to the Plaintiff, and 30% by the Defendant (Appointed Party), KimB, the Selection-D, the KimCC, the EE, and the EF, respectively.

3. The above paragraph 1(a) may be provisionally executed.

1. Purport of claim

"A participant succeeding to the plaintiff (hereinafter referred to as the "participating"), defendant KimB, Selection KimCC, each OOOOOOD, EXE, EXF each OOOOOO, 5% per annum from June 28, 1999 to the day on which the duplicate of the complaint of this case was served, 20% per annum from the next day to the day on which the copy of the complaint of this case was served, and 10% per annum from the next day to the day on which the copy of the complaint of this case was served," and 2. The purport of the appeal is "(the intervenor succeeded to the lawsuit of this case, and the plaintiff was withdrawn from the lawsuit of this case)."

The decision of the first instance court shall be revoked. The defendant KimB, the Selection KimCC, and the Selected shall pay to the plaintiff the amount calculated by each ratio of 5% per annum from June 28, 1999 to the day on which the duplicate of the complaint of this case was served, 5% per annum from the next day to the day on which the copy of the complaint of this case was served, and 20% per annum from the next day to the day of full payment.

1. Basic facts

" 가. 망 김GG(이하망인'이라 한다)는 HH그룹의 창업자로서 1982. 4. 9. 사망하였고, 망인의 상속인으로는 ① 사망한 처인 윤II와 사이에 출생한 장남 김JJ, 장녀 김KK, 2남 원고, 3남 김LL, 2녀 김MM, 5남 김NN, 6남 피고 김BB이, ② 재혼한 처인 선정자 송DD과 사이에 출생한 7남 선정자 김CC, 4녀 김PP가, ③ 김QQ과 사이에 혼인외 자인 4남 김RR, 3녀 김SS이, ④ 최TT와 사이에 혼인외 자인 5녀 김UU이 있었고, 그 중 김PP는 1986. 12. 19. 사망하여 남편 이VV와 자녀인 선정자 이EE, 이FF가 공동상속하였다. 상속인들의 상속지분은 별지상속지분내역' 기재와 같다.", " 나. 망인의 고문변호사였던 이WW는 망인에 대한 OOOO원의 변호사 수임료채권(이하이 사건 수임료채권'이라 한다)을 피보전채권으로 하여 보전처분을 신청하였고, 1979. 6. 9. 망인 소유의 OO시 OO구 OO동 156-11 대 49㎡ 등 2필지(이하XX동 부동산'이라 한다)에 관하여 처분금지가처분(이하이 사건 가처분'이라 한다)의, 1979. 9. 17. OO시 OO구 OO동 580-2 대 575㎡ 등 21필지 토지 및 건물(이하YY동 부동산'이라 한다)에 관하여 가압류(이하이 사건 가압류'라 한다)의 각 촉탁등기가 마쳐졌다.", " 다. 이어서 이WW는 1995. 10. 5. 망인의 상속인들을 상대로 부산지방법원 95가합27595로 이 사건 수임료채권의 지급을 구하는 소송을 제기하였고, 이 소송은 1995. 11. 29. 청구인낙(이하이 사건 청구인낙'이라 한다)으로 종결되었다.", " 라. 한편 원고는 1995년경 망인의 상속인들을 대표하여 이WW와 사이에이 사건 수임료채권 OOOO원을 OOOO원으로 감액하고, YY동 부동산에 대한 부산지방법원 동부지원 93타경393 부동산강제경매절차(이하이 사건 경매절차'라 한다)에서 가압류권자인 이WW에게 배당된 40,321,140원(이하YY동 배당금'이라 한다)에 대한 권리를 망인의 상속인들에게 양도하며, 이 사건 가처분에 대한 해제신청을 하기로' 하는 내용의 합의를 하였고(이하이 사건 합의'라 한다), 1999. 6. 28. 이WW에게 OOOO원을 변제하였다(이하이 사건 변제 라 한다).", " 마. ○○세무서장은 2010. 11. 20. 원고의 국세체납액 OOOO원에 기하여 원고의 피고를 포함한 선정자들(이하피고 등'이라 한다)에 대한 이 사건 구상금채권을 압류하고, 같은 달 24. 피고 등에게 압류사실을 통지하였다.",[인정근거] 다툼 없는 사실, 갑 제1호증의 1, 2, 갑 제2호증, 갑 제3호증의 1, 2, 갑 제10호증, 을 제1, 3, 5, 6호증, 을 제7호증의 1, 2, 3, 을 제9호증의 1, 2, 을 제43호증의 1 내지 21, 을 제47 내지 51의 각 1, 2의 각 기재, 변론 전체의 취지

2. Whether to allow application for intervention;

A. Summary of the defendant's assertion

The plaintiff is merely a person with an economic interest as a result of the lawsuit in this case, and there is no interest in participating in the lawsuit for the intervenor. Thus, the plaintiff's application for participation must be rejected.

B. Determination

On the other hand, if a third party performs a lawsuit as a person in charge of the lawsuit, the principal, who is the subject of the lawsuit, shall depend on the existence or absence of the legal relationship, and is legally interested in the result of the lawsuit. Thus, as seen earlier, the intervenor seized the claim for reimbursement against the defendant, etc. based on the OOO personnel in the amount of national taxes and carries out the lawsuit in this case on behalf of the plaintiff. Thus, the plaintiff is a person who is legally interested in the result of the lawsuit and has a legitimate interest in participating in the lawsuit for the intervenor. Thus, the plaintiff's application for intervention in the lawsuit in this case is legitimate.

3. Determination as to the cause of action

According to the above facts of recognition, the Plaintiff discharged this WW from the Defendant, etc., who is a joint heir by repaying the deceased’s debts to the deceased, and on the other hand, in order to cancel the provisional disposition registration of this case, the Plaintiff had a legitimate interest in paying the Defendant, etc. the portion of the Defendant, etc.’s share in inheritance. Meanwhile, the Plaintiff has the right to claim reimbursement for the amount of the Defendant, etc. out of the amount of the instant repayment. Meanwhile, since the Intervenor seized the Plaintiff’s claim for reimbursement against the Defendant, etc. under the National Tax Collection Act, the Intervenor, KimB, and the Selection KimCC’s claim for reimbursement against the Defendant, etc. was seized, each of the intervenors (i.e., KRW 12/132, but less than KRW 12/132, and less than KRW 18/132, 132), and SongD has the obligation to pay the amount of reimbursement to the Defendant, etc. (i.e., KRW 13O/132).

4. Determination on the defendant's defense

(a) Offset with dividend;

1) Parties’ assertion

(1) Summary of the defendant's assertion

A) At the time of the instant agreement, this W agreed to transfer the deceased’s rights to the Ydong dividend to the deceased’s heirs. Accordingly, this W delegated the Plaintiff, who represented the deceased’s inheritors, to receive the Ydong dividend, and the Plaintiff received the Ydong dividend around December 13, 1995.

B) The Plaintiff did not pay Ydong dividends to the Defendant, etc., even though they pay the Defendant, etc., according to their respective inheritance shares. Accordingly, the Defendant, etc., to the Plaintiff, etc.: (a) the amount equivalent to inheritance shares among the Ydong dividends, namely, the unjust enrichment of Defendant KimB, and KimCC, i.e., each of them [OO (x 12/132) ＋ the amount calculated by calculating 5% per annum from December 15, 1995 to June 27, 1999; (b) the amount of damages calculated by 15% per annum from 199 to 9% per annum from 195 to 29% per annum; (c) the amount of damages for delay from 199 to 19% per annum (the amount of damages for delay calculated by 19% per annum 19 to 29% per annum; and (d) the amount of damages for delay from 199 to 19% per annum 29 to 000.7%).

(2) Summary of the Plaintiff’s assertion

"YYdong real estate is not owned by the deceased, but owned by the Zine-based corporation (hereinafter referred to as the "Zine-based corporation"), and the Ydong dividend was received by the Yellow KK and delivered to the KimJ, the representative of the Zine-based corporation, and the plaintiff does not have received the Ydong dividend, and 2)

(1) Plaintiff’s receipt of Ydong dividends

In light of Gap evidence Nos. 5, Eul evidence Nos. 1 and 6, Eul evidence Nos. 7 3, Eul evidence No. 17-1, 2, and Eul evidence No. 43-1 to 21, the following circumstances can be acknowledged. In other words, YY-dong real estate purchased from the deceased on December 21, 1978, from the Busan District Court Geum-dong Office of 118762, which was received on December 22, 1978 (YY-dong real estate, was included in the deceased's inherited property (YY-dong real estate, Busan District Court No. 17610, Mar. 4, 1983; YY-1)'s transfer registration of the deceased's dividends to the deceased's heir No. 1, 7-2, and 5-dong real estate dividends to the deceased (YY-dong real estate for which the plaintiff was entitled to receive the gift of this case; YY-dong real estate was null and void due to the plaintiff's transfer registration of 2.

Therefore, Defendant, etc.: (i) the amount equivalent to the Plaintiff’s share in inheritance (i.e., KRW 18/132) out of YY dividends (i.e., KRW 00, KRW 18/132), KRW 18/132, KRW 18/132, KRW 18/132, KRW 00, KRW 11/132) of KRW 9,000, KRW 9,000, KRW 9,000, KRW 9,000,000, KRW 9,000,000, KRW 9,0000,000, KRW 9,000,000, KRW 9,000,000, KRW 9,000,000, KRW 9,000,000, KRW 9,000,000, KRW 9,000,00,000).

Therefore, if the plaintiff deducts each unjust enrichment that the defendant et al. shall pay to the plaintiff from the indemnity amount of this case that the defendant et al. must pay to the plaintiff, the defendant KimB, the Appoint KimCC (OOOO - OOOO) (i.e., the selected (i., the xO - the xO - the xO E), and the xO E, respectively, and the eF are liable to pay damages for delay calculated at a rate of 20% per annum as prescribed by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from June 29, 199 to May 27, 2014, the judgment of the court of first instance that the defendant et al. is deemed reasonable to dispute about the existence or scope of the obligation to pay to the plaintiff.

(b) Mutual aid related to compensation for expropriation of real estate △dong;

1) Summary of the defendant's assertion

"OOOO(hereinafter referred to as "OOOO's compensation") was deposited with respect to 72 square meters of the site located in OO-dong, O-dong, which is the deceased's possession. From among the deceased's inheritors, the plaintiff received the remaining OOO's compensation except Defendant KimB, KimB, KimS, LeeV, EE, and EF shares, from among the deceased's inheritors, and thereafter, he deposited the OO's compensation for expropriation with each of the designated members and the OO's KimCC. The plaintiff received the OO's compensation for expropriation with each of the total amount of the OO's compensation paid out from the ○○dong, which was received by the plaintiff (=OOOO's + OOOO's -O's -O's - 2) and the plaintiff's O's -O's - 2).

The fact that the Plaintiff received the remaining OOOO members, excluding the shares of Defendant KimB, Nonparty KimB, LeeS, LeeV, Selected, EE, and EF, among the compensation for △△ Dong-dong, and that the Plaintiff deposited the shares of OOO members of the AppointD, the Selected KimCC, there is no dispute between the parties.

Therefore, since Defendant, etc. received all the amount according to their respective inheritance shares among the compensation for △△ Dong's confinement, even if the Plaintiff received as alleged by Defendant, etc., and the remaining heirs other than Defendant, etc. did not pay part of the compensation for △△ Dong's confinement, this is merely the Plaintiff's obligation to distribute it to other heirs, and it does not constitute a deduction from the compensation amount of this case against Defendant, etc., and therefore, this part of the defense against

(c) Set-off of litigation costs and registration costs.

1) Summary of the Defendant’s assertion

(1) In Seoul Central District Court Decision 207Ka2809, the plaintiff's annual interest in arrears was confirmed to the effect that "O2, 200, 200, 200, 300,000,000 won were to be paid for each of the above O2, 200,000 won, 200,000,0000 won were to be paid for each of the above 20,000 won, 30,0000 won, 20,0000,0000 won were to be paid for each of the above 9,000,000 won, 20,000 won, 20,0000 won, 30,000,000,000 won were to be paid for each of the above 9,000,000 won,00 won, 20,0000 won,00 won,000 won,00 won,00.

(1) According to the Seoul Central District Court Decision 207KaB2809, the plaintiff's decision that "OBD1" and "Seoul High Court Decision 200 Da2701 decided that the plaintiff's claim for damages against the defendant 2 is an OBD1 and that the plaintiff's claim for damages against the defendant 2 is an OBD1 and that the plaintiff's claim for damages against the 200 Da271 decided that the plaintiff's claim for damages against the defendant 20 Da370 decided that the plaintiff's claim for damages against the 190 Do2 decided that the plaintiff's claim for damages against the defendant 2 was non-existent, the Seoul Central District Court Decision 209Da1016 decided that the plaintiff's claim for damages against the 190 Do2 decided that the plaintiff's claim for damages against the plaintiff 2 was non-existent, the plaintiff's claim for damages against the 190 Do204 decided that the plaintiff's claim for damages against the 2090 O2's claim for damages against the plaintiff.

A) Since abuse of rights violates a mandatory provision, the court may decide ex officio, even if there is no party’s assertion (see Supreme Court Decision 94Da42129, Dec. 22, 1995). We examine ex officio whether the set-off defense based on the Selection E and F’s decision of litigation costs, based on the third party’s decision of litigation costs, and the set-off defense based on the SelectionD’s decision of lawsuit costs, based on the Selection E and F’s decision of lawsuit costs, constitutes abuse of rights.

B) Generally, it is reasonable that a set-off can be permitted in cases where a claim exists between the parties. However, the legal protection of the person holding the right of set-off is for the purpose of smooth and equitable disposal of both claims by settling accounts with opposing claims and obligations in a simplified manner. As for a person who intends to exercise the right of set-off, the existence of a set-off can actually function as a collateral for an automatic claim, and thus, the reasonable expectation of the parties to the secured function can be legally protected, in light of the purpose and circumstance of acquiring the claim or obligation subject to set-off, and the specific and individual circumstances leading to the exercise of the right of set-off, it is reasonable that the person holding the right of set-off should not be allowed to exercise the right of set-off if it goes beyond the purpose and function of the set-off system and if there is no value to legally protect the right of set-off, the person holding the right of set-off can only be viewed as an exercise of the right of set-off and thus, it cannot be seen as an exercise of the right of set-off in each lawsuit.

C) Comprehensively considering the purport of the arguments in this case as to health expenses, Eul evidence Nos. 58, Byung evidence Nos. 1-2 and 1-2, the plaintiff's assertion that this case's claim constitutes a set-off against the selected parties, Busan District Court No. 2007 Gohap3905, and that this case's claim constitutes a set-off against the designated parties, E, E, and E, E, and E, which are based on the 3rd cost decision of the appointed parties, is not a separate set-off against this part of the 2nd cost claim under the 1st decision of E, OOF, and 2nd cost claim under the 1st decision of E, OF, and 2nd cost claim of this case. The plaintiff's assertion that this case's claim constitutes a set-off against the appointed parties, E, E, and EF, which are not a separate claim for the 2nd decision of E, 2009, 2000.

1) Summary of the defendant's assertion

" (1) 주식회사 ◆◆은행(이하◆◆은행'이라 한다)이 1979. 10. 13. ZZ견직, ◎◎생사, 주식회사 □□(이하□□'라 한다)에 OOOO원의 긴급구제자금을 대출(이하이 사건 대출'이라 한다)하였는데, 이 사건 대출금에 대한 담보로, 망인, 김JJ, 김LL, 원고, □□는 그들 소유의 각 부동산에 관하여 근저당권을 설정하여 주었고, 김JJ, 김LL, 원고는 이 사건 대출금채무의 지급을 연대 보증하였다.", (2) 그 후 ◆◆은행은 □□ 소유의 부동산의 경매대금에서 OOOO원, 김JJ 소유의 부동산의 경매대금에서 OOOO원, 김LL 소유의 부동산의 경매대금에서 OOOO원, ZZ견직 소유의 YY동 부동산(YY동 부동산에 관한 ZZ견직의 소유권이전등기는 망인 명의의 허위의 유언증서에 터 잡은 원인무효의 등기이므로 이 사건 각 배당 당시 YY동 부동산의 소유자는 망인의 상속인들이다)의 경매대금에서 OOOO원 합계 OOOO원을 배당받아 이 사건 대출금채권에 충당하였다.

(3) Since it is reasonable to set the share of expenses in proportion to the number of persons among one surety and one surety and two surety and one surety and one other's surety, the remaining members except for the deceased and four members, such as the surety and the surety, Kim J, KimLL, and the plaintiff, who have been paid out of the real estate auction proceeds owned by the OOOOOOO, shall pay each amount of the OOOOOO (=OJ/4). However, in the auction proceeds of the YYdong real estate owned by the deceased, the amount exceeding the OOOOOOO was paid in full, while the plaintiff did not pay all the expenses, the defendant et al., the deceased's heir, the plaintiff et al., the OOOOOO2, 12, 13OO2, 12/132, 1300 and 130 of this case's claims against the plaintiff (i.e., this case's claims against the plaintiff).

2) Determination

"No evidence Nos. 13, 14-1, 14-1, 2, 3, and 16-1, 15-2, Eul evidence Nos. 16-2, 2, 27, 45-2, 46-1, 2, 5-2, 56-2, 56-1, 56-2, and 59 are insufficient to recognize the amount of the claim against the plaintiff, and there is no other evidence to acknowledge it [the defendant et al. was remanded to the Seoul Central District Court 2003Kahap19058, 205Hun-716, 200, 205Da716, 2016, 206, 200, 306, 206, 207, 301, 206, 206, 305, 206, 2005, 2016, 2006, 2016, 3636, 2006, 36.

Therefore, the intervenor's claim is justified within the above scope of recognition, and the remaining claims are dismissed as there is no ground. Since the judgment of the court of first instance is partially unfair with the conclusion, the defendant's appeal is partially accepted and the judgment of the court of first instance is to be modified according to the intervenor's succession and the plaintiff's withdrawal from the lawsuit. It is so decided as per Disposition.