National taxes, surcharges, or expenses for disposition on default may be collected in preference to other public charges or claims.

National tax claims against delinquent taxpayers of the State may be collected in preference to civil claims against delinquent taxpayers of a third party. Since the State is in the position of subrogated to civil claims against delinquent taxpayers of the third party, it cannot be said that the State has a duty to deliver the amount of claims collected by the State from delinquent taxpayers to the third party or to appropriate the amount for national tax claims against the third party.

2014 Gohap536115 Undue gains

Korea

OOO Trust, Inc.

November 18, 2014

December 4, 2014

1. The plaintiff's primary claim and the conjunctive claim are all dismissed.

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

1. Mainly, the Defendant: 116,380,000 won to the Plaintiff and 5% per annum from September 27, 2011 to the delivery date of a copy of the instant complaint; and 20% per annum from the following day to the day of complete payment.

shall pay the amount by proportion.

2. Preliminaryly, the Defendant: 116,380,000 won to the Plaintiff, and 5% per annum from August 12, 2013 to the delivery date of a copy of the application for modification of the purport of the instant claim and the cause of the claim, and the next day to that of the Plaintiff.

Until the date of full payment, 20% of the amount per annum shall be paid.

1. Basic facts

A. On March 16, 2010, the Plaintiff filed a lawsuit with the Plaintiff seeking payment of KRW 49,79,795,400, total amount of taxes, such as capital gains tax, etc., imposed on the Plaintiff in relation to the performance of the contract, such as the sale of stores, to promote a reconstruction project of a commercial building, which is located within the Seoul OO-dong O-dong O-O-O-O-O-O-O-O-O-O-O-O-O-owned on KRW 2000,00,000, and on December 2, 2010, "O-O-owned was 499,795,400 and 335,235,75,000 among them, and the above judgment was rendered on KRW 147,089,90 from November 1, 2010 to December 19, 2009; and the above judgment was rendered on KRW 405,7500.4.29.

B. As of March 31, 2011, the Plaintiff’s total national tax of KRW 542,665,010 against the Defendant is the body of the Defendant.

On March 31, 2011, the Defendant filed a claim against the Plaintiff due to the foregoing national tax delinquency (hereinafter referred to as “instant tax claim”); on March 31, 201, the Defendant filed a suit for payment (hereinafter referred to as “instant subrogation suit”) against OO by subrogation of the Plaintiff with the claim against the Plaintiff based on the said final judgment as a subrogation claim; and on September 9, 201, the Seoul Central District Court 201Kahap000. OO rendered a suit for payment (hereinafter referred to as “instant subrogation suit”) on August 19, 201 with the Seoul Central District Court 201Kahap000; and O paid to the Defendant an amount equivalent to 542,65,010 won and the annual interest rate of 20% from May 25, 2011 to the date of full payment.”

C. Meanwhile, on March 31, 201, the date of filing the instant subrogation lawsuit, the Defendant’s taxation claim amount of the instant case on March 31, 201

542,665,010 won as the claim amount and the rent for the BBB Won Co., Ltd. (former trade name is the CCCwon Co., Ltd.; hereinafter referred to as 'BBB won'), the Seoul Central District Court filed an application for provisional attachment on claims with the Seoul Central District Court 201Kadan000, and received the provisional attachment order on April 27, 201 (hereinafter referred to as the "provisional attachment of this case") and the provisional attachment order reached BBB on April 29, 2011.

D. After that, on September 26, 2011, the Defendant collected rent of KRW 116,380,000 (hereinafter “instant amount to be collected”) from BBBwon, a debtor of O, from the O, to the O, and appropriated the amount to be paid by the O to the Defendant.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 3 (including a satisfy number; hereinafter the same shall apply), each fact inquiry about the future PET branch of the CCC Co., Ltd. in this Court, the purport of the whole pleadings

2. Summary of the plaintiff's assertion

(a) The primary claim

In a case where a creditor exercises a creditor's subrogation right on behalf of a debtor, a statutory claim relationship equivalent to delegation between the creditor and the debtor is established. Since the defendant seized a claim for rent against the third debtor of the plaintiff in subrogation of the plaintiff as the preserved claim, the defendant collected 116,380,000 won of the money collectible in this case from the BB won following the provisional attachment of the claim for rent against the third debtor, the defendant should have delivered the above money to the plaintiff in the position of a delegating to the defendant, or offset the tax claim in this case against the plaintiff. Nevertheless, the defendant should have received the above collection.

By appropriating the corporate tax in which the OO was delinquent, it would have obtained benefits without any legal ground and caused the loss equivalent to the same amount to the plaintiff.

Therefore, the defendant's 16,380,000 won and the case from BBB won to the plaintiff

The damages for delay from September 27, 201, which is the day following the collection of the money collectible, shall be paid.

(b) Preliminary claim

1) First Preliminary Claim

If a creditor exercises a creditor's subrogation right on behalf of a debtor, the creditor and debtor

The statutory claim relationship corresponding to delegation is established between the parties, and Article 681(2) of the Civil Act concerning delegation is established.

Accordingly, the defendant's taxation claim against the plaintiff of this case, collected by subrogation of the plaintiff.

The defendant bears the duty of care in subrogation of the plaintiff. However, the defendant of this case raised by subrogation of the plaintiff

The BBB won of OO even though the winning judgment became final and conclusive on September 9, 2011 after winning the lawsuit by subrogation.

of September 26, 201, the O's rent for BBBB funds.

The claim was collected and appropriated for the corporation tax of the O, which is based on the main part of the delegation.

The obligation is violated.

Due to the above violation of the Defendant’s duty of care, the Plaintiff was 116,380,000 of the instant money collectible.

The defendant is obligated to pay to the plaintiff delay damages from August 12, 2013, where the defendant imposed a tax of KRW 116,380,00 on the plaintiff as well as KRW 173,781,310 ( KRW 23,550,60, and KRW 150,230,710) on the plaintiff.

2) 2 Preliminary Claim

A public official in charge of the property tax of the Seocho-gu Office shall be O in subrogation of the plaintiff.

In the instant subrogation lawsuit filed by the Defendant, but the O’s winning judgment became final and conclusive, BBB of the

In the end, the Plaintiff shall be exempted from tax liability equivalent to 116,380,000 won of the instant money collectible by neglecting the collection of the claim against the Plaintiff, thereby appropriating the instant money collectible from the same tax office corporate tax and the OO’s corporate tax. The Defendant is liable to compensate the Plaintiff for damages pursuant to the main sentence of Article 2(1)3 of the State Compensation Act.

Therefore, the Defendant is obliged to pay the Plaintiff damages for delay from August 12, 2013, where the Defendant imposed tax on KRW 116,380,000 on the Plaintiff as well as KRW 173,781,310.

3. Determination

A. Judgment on the main claim

1) Under the current law, the procedure for failure to pay national taxes and civil execution procedure are separate procedures between both procedures.

Except as otherwise provided for in the law governing relations, one procedure may interfere with the other party's procedure.

on the other hand, each creditor in both proceedings shall determine the different procedures.

Since it is inevitable to participate in the same claim, seizure and civil procedure by the procedure of disposition on default.

Even if seizure by enforcement procedures competes with each other, the tax official shall pressure the seizure by the disposition on default.

In addition, the seizure of claims under Article 41 of the National Tax Collection Act prohibits all acts of disposal, such as repayment, collection, etc., to the creditor and debtor of the seized claim, and makes it possible for the third debtor to collect the claims on behalf of the delinquent taxpayer. Thus, the third debtor cannot repay the claims under seizure to the delinquent taxpayer, and only can it be done to the country that is the collection right holder only (see, e.g., Supreme Court Decisions 9Da3686, May 14, 1999; 200Da26036, Dec. 24, 2002). In addition, the main sentence of Article 35(1) of the Framework Act on National Taxes provides that "national taxes, surcharges, or expenses for disposition on default shall be collected in preference to other public charges or other claims."

2) He returned to the instant case, each entry of Eul Nos. 1 to 3, and the corporation of this court

According to the results of each fact-finding with respect to the future PET branch and the overall purport of the pleadings:

As of July 29, 2011, the O was delinquent in national taxes of KRW 196,561,010 (including additional dues of KRW 27,372,600) and on this ground, the Defendant attached O’s rent claim against BBD in accordance with the procedures for disposition on default under the National Tax Collection Act on July 29, 201, to BBBBBB on August 2, 201.

The notification of the attachment to the BBBB at that time, and the BBBB won at that time, and the BBB won at that time.

9. On September 26, 201, the fact that the collection request based on the above seizure was received from the Seocho Tax Office, and deposited KRW 116,380,000 in the Seocho Tax Office on September 26, 201. In light of the aforementioned legal principles, inasmuch as the seizure of the claim against OBBB based on the procedure for the disposition of arrears had already become effective before September 9, 201 when the judgment on the instant subrogation lawsuit became final and conclusive, it cannot be said that the Defendant committed any error of law in collecting the instant money from BBB based on the above seizure of the claim and appropriating it for the corporation delinquent by O (In addition, in light of the above legal principles, even if the Defendant’s notification of the seizure of the claim is seen as in light of the above legal principles, DoBB won after the judgment on the instant subrogation lawsuit became final and conclusive.

Even if they were reached, they do not seem to be different).

3) Accordingly, as alleged by the Plaintiff, the instant money collectible is delivered to the Defendant or delivered to the Plaintiff.

Since it cannot be deemed that there is a legal obligation to have offset against the claim of this case against the plaintiff, the plaintiff's primary claim based on this premise is without merit without examining the remaining points.

B. Determination on the conjunctive claim

Nos. 1 and 2 preliminary claims are examined together with the defendant in the subrogation lawsuit of this case

Although the winning judgment became final and conclusive, a public official in charge of the property tax under the defendant's Seocho Tax Office neglected to collect the claims against OO's BBBB won, which eventually appropriated the money collectible in this case from the same tax office and the OO's corporate tax, which constitutes a tort due to the defendant's violation of the duty of care or the defendant's intentional or negligent negligence. However, as seen above, the defendant (or the public official in charge of the defendant) seizes the O's rent claim against BBB won prior to the conclusion of the judgment of the subrogation lawsuit in this case in accordance with the procedure for disposition on default under the National Tax Collection Act, and collects the money collectible in this case from BBB won based on the seizure of the claim and appropriated it to the O's delinquent corporate tax, it cannot be deemed that it constitutes a violation of the duty of care or a tort as alleged by the plaintiff. Accordingly, the plaintiff's first and second preliminary claims based on this premise and the remainder

4. Conclusion

If so, the plaintiff's main claim and the conjunctive claim are without merit, all of them are dismissed.

D. It is so decided as per Disposition.

Judges of the presiding judge