Whether a claim for the payment of seized claims is legitimate

Since the period of repayment of the defendant's automatic claim arrives earlier than that of the company's passive claim before the seizure of the claim, and the amount of the automatic claim significantly exceeds the amount of the seized claim, the seizure of the seized part of the profit distribution obligation should be extinguished as a set-off

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant shall pay to the plaintiff 154,660,190 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in the entries of evidence Nos. 1-2 to 5, 2-1 through 3, 3-1 to 10, 4, 7, 13-1, 2, and 20:

A. On September 16, 2003, the non-party corporation ○○○○○○○○ (hereinafter referred to as the "non-party corporation") entered into a business agreement with the defendant to distribute 35% of the profits accrued from the operation of the instant play facilities and to distribute 65% of the profits accrued from the non-party corporation (hereinafter referred to as the "the business agreement of this case") to the mechanical play facilities of the general amusement facilities in the ○○○○○○○○ Green Park (hereinafter referred to as the "the instant play facilities"). On September 16, 2003, the non-party corporation invested 10 types of play facilities of this case in the instant play facilities. The defendant is liable for the entire business as the project implementer of the general amusement facilities in the above ○○○san Park, and the non-party corporation's 65% of the profits accrued from the operation of the instant play facilities. On April 26, 2005, the non-party corporation changed the profit ratio of this case to the non-party corporation 365% 4.

B. From April 26, 2005 to June 27, 2005, the Defendant loaned KRW 500,000,000 to the non-party company in total, to 7% per annum equivalent to the interest rate of commercial banks, and to make installment payments for two years after the maturity of one year.

From April 30, 2005 to August 31, 2005, the Defendant paid 35% of the proceeds from the operation of the play facilities of this case to the non-party company as profit distribution, but did not pay the proceeds distribution to the non-party company from September 1, 2005.

C. The head of ○○ Tax Office under the Plaintiff’s control did not pay KRW 131,971,00 in total amount of five delinquent taxes, including the value-added tax for the second half of 2004, the non-party company did not pay KRW 131,971,00. September 2, 2005, the claim was seized to the non-party company’s income distribution amount of KRW 131,971,00 among the non-party company’s income distribution claims against the Defendant, and the above seizure was notified to the Defendant on September 2, 2005. In addition, the head of ○○ Tax Office did not pay KRW 161,561,00 in total, including five delinquent items, including the non-party company’s total amount of KRW 7 delinquent items of value-added tax for the second half of 2005.

D. Around December 2, 2005, the head of the Suwon Tax Office urged the Defendant to pay KRW 156,761,770 out of the above seized claims.

E. Meanwhile, the sales revenue of the instant play facility amounting to 170,435,50 won, and the sales revenue of October 2005 amounting to 221,296,000 won, and the sales revenue from November 1, 2005 to November 24, 2005 amounting to 70,296,000 won.

2. The parties' assertion and judgment

A. The plaintiff's assertion and judgment

(1) The plaintiff's assertion

The plaintiff asserts that the head of ○○ Tax Office is liable to pay KRW 154,660,190 out of the amount of seized claims to the plaintiff who is the execution creditor, since the profit distribution amount that the defendant should pay to the non-party company from September 2, 2005 to December 31, 2005 after attaching the claim for profit distribution amount of the non-party company for the first time.

(2) According to the facts of the above recognition, the defendant is obligated to pay 35% of the profits of the play facilities of this case after September 1, 2005 to the non-party company as profits distribution amount. The head of the ○○ Tax Office had the obligation to pay 161,561,00 won out of the non-party company's unpaid profits distribution claim amounting to 35% of the sales amount of September 2, 2005, 59,652,425 won, 35% of the sales amount of the play facilities of this case, 59,652,425 won, 35% of the sales amount of October 26, 2005, from November 1, 2005 to November 24, 2005. Thus, the defendant is obligated to pay 365% of the above profits distribution claim to the plaintiff, 205, 2015, 46165, 2015, 2016.5

B. The defendant's defense of set-off and judgment thereon

(1) The defendant's defense of offsetting

On April 26, 2005, the defendant entered into a contract with the non-party company for the purpose of securing repayment of 1,600,000,000,000 won from the loan to the non-party company. From April 26, 2005 to June 27, 2005, the defendant lent 50,000,000 won to the non-party company as a total from April 26, 2005 to June 27, 2005. The non-party company appropriated the profit distribution amount of the non-party company's loan from September 1, 2005 to the principal and interest of the non-party company. Thus, the defendant asserted that the defendant offsets the non-party company's profit distribution claim against the non-party company's profit distribution claim, which is a seized claim by automatically using the defendant's loan principal and interest claim.

(2) Determination

(A) According to the judgment judgment and the seizure of a claim under the National Tax Collection Act, the seizure of a claim has the effect of prohibiting all acts of disposal, such as repayment and collection, as a result of compulsory execution. However, the execution creditor merely acquires the right to collect on behalf of a delinquent taxpayer and it does not necessarily restrict the third obligor's right to offset. Thus, even in the seizure of a claim under the National Tax Collection Act, the third obligor may oppose the execution creditor by offset when the notification of seizure was served, or when the automatic claim and the passive claim are in offset at the time of service of the notification of seizure, or when the maturity of the automatic claim comes earlier or earlier at the time of the due date of the repayment of the claims (see Supreme Court Decisions 82Da200, Jun. 22, 1982; 82Da449, Apr. 9, 1985).

(B) As to the instant case, the Defendant agreed to lend KRW 1,60,000 to the non-party company in installments from April 26, 2005 to June 27, 2005, the interest rate of KRW 7% per annum, and the method of repayment to the non-party company in installments for two years after one year, as seen above, and leased KRW 500,000 in total. The non-party company had already been under serious financial difficulties to discuss the respect of the company at the meeting of the board of directors on November 26, 2004; the Defendant agreed to lend KRW 1,60,000,000 in total to the non-party company to the non-party company in order to resolve the financial difficulties of the company; the Defendant did not pay the loan to the non-party company KRW 1,65% per annum, and the non-party company was changed to the non-party company 35% per annum, and the Defendant could have a right to offset the loan to the non-party company from the above non-party company.

Comprehensively taking into account the above facts of recognition, the non-party company and the non-party company entered into a special agreement that "the defendant has the right to preferentially cover the principal and interest of the loan to the non-party company while lending money to the non-party company out of the financial shortage." If the repayment of the loan is uncertain, such as the non-party company's default, the non-party company should lose the profit due to the above loan's repayment. The defendant agreed that the non-party company shall have the right to set off the above loan's profit distribution claim against the non-party company on an equal amount without a separate set-off declaration even before the due date of the above loan's repayment. Thus, as long as the non-party company entered into a final default on August 31, 2005, the non-party company lost the profit due to the above loan's repayment of the loan's repayment of the loan's repayment of the loan's repayment of the loan's repayment of the loan's repayment of the loan's repayment of the loan's repayment of the loan's repayment of the loan's repayment of 100.

Therefore, the defendant's above defense is justified.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.