When exercising the right of collection under the National Tax Collection Act, the debtor's obligation

Where a claim is seized by a State in accordance with the procedure for disposition on default under the National Tax Collection Act, the obligor of the seized claim may not discharge his/her obligation to the creditor, and on the other hand, where the State gives notice of attachment to the obligor of the seized claim pursuant to Article 41 (2) of the same Act and thus the obligee subrogates the obligee, the obligor of the seized claim is liable

Article 41 of the National Tax Collection Act (Procedures for Attachment of Claims)

Seoul Central District Court 2017Guhap51935

Korea

AA

April 3, 2019

April 17, 2019

1. The defendant shall pay to the plaintiff 1,880,395,790 won with 15% interest per annum from March 31, 2017 to the day of full payment.

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

3. The first execution may be provisionally executed; and

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. The Plaintiff has a taxation claim of KRW 1,895,050,280, including value-added tax and corporate tax, from 2013 to 200, to BB (hereinafter “B”).

B. BB’s short-term loans from April 9, 2014 to September 21, 2015, which were held against the Defendant and remaining claims as of September 19, 2016, are KRW 2,760,043,987 (hereinafter “instant loans”).

C. On September 19, 2016, the director of the mid-term Tax Office under the Plaintiff’s jurisdiction attached the instant loan claims against the Defendant of BB for the enforcement of national tax claims in arrears by BB, and the above attachment notification was issued to the Defendant, the garnishee on May 23, 2018. After which, on May 23, 2018, the director of the mid-term Tax Office attached the above loan claims again and issued the above attachment notification to the Defendant, the garnishee.

[Ground of recognition] Facts without dispute, Gap's statements in Gap's 2 to 5, 10 to 12, and the purport of the whole pleadings

2. Determination as to the cause of action

In cases where a claim is seized by a State in accordance with the procedure for disposition on default under the National Tax Collection Act, the obligor of the seized claim cannot perform his/her obligation to the obligee. Meanwhile, in cases where the State is subrogated to the obligee by notifying the obligor of the attachment pursuant to Article 41(2) of the same Act, the State shall be deemed to have acquired the right to collect the claim. Thus, when the due date has arrived, the obligor of the seized claim shall be liable to perform the obligation to the State, the subrogated obligee (see, e.g., Supreme Court Decisions 86Meu2476, Apr. 12, 198; 2004Da24960, Dec. 21, 2006).

According to the above facts, barring any special circumstance, the defendant is obligated to pay to the plaintiff who becomes the collection right holder under Article 41 of the National Tax Collection Act the amount of KRW 1,880,395,790, which is within the amount of delinquent local taxes of BB among the amount of KRW 2,760,043,978, and the damages for delay calculated at the rate of 15% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from March 31, 2017 to the date of complete payment, as requested by the plaintiff.

3. Determination as to the defendant's assertion

A. The Defendant asserts that the instant loan was executed by the Defendant, who is the representative director of BB, as a lump sum loan, and that it was not entirely borrowed by the Defendant. Thus, insofar as the establishment of a disposal document is recognized as authentic, the court should recognize the existence of declaration of intent and its content in accordance with the language and text stated in the disposal document unless there is any clear and acceptable counter-proof that denies the contents of the written statement (see, e.g., Supreme Court Decision 2017Da235647, Jul. 12, 2018). The Defendant recognized the establishment of the authenticity of the loan agreement (Evidence 2) and the confirmation document (Evidence 3), and unless there is any evidence that the contents are different from the facts, the Defendant’s above assertion has no merit.

B. In addition, the defendant asserts that the plaintiff's right to delay national taxes against BB needs to be considered just by the assessment details and the basis for calculation.

However, even if there is an illegal cause that can revoke the administrative disposition, as long as the administrative disposition is not deemed to be void as a matter of course, such disposition is valid until it is lawfully revoked by the fairness of the administrative act, and thus, it cannot be denied the validity of the administrative disposition in the civil procedure. Furthermore, in order for the administrative disposition to be null and void as a matter of course, the defect must be significant and obvious (see, e.g., Supreme Court Decisions 9Da20179, Aug. 20, 199; 2002Da68485, Oct. 15, 2004). The defendant asserted that the amount of the tax imposed on the BB should be considered just, and there is no specific assertion as to which illegality exists, and therefore, the defendant's assertion on the premise that the tax disposition against BB is null and void as a matter of course is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and it is so decided as per Disposition.