Seoul Central District Court-2014-Gohap-536115 ( December 04, 2014)

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.

Article 35 of the Framework Act on National Taxes

2015Na2001497 Undue gains

KimA

Korea

Seoul Central District Court Decision 2014Gahap536115 Decided December 4, 2014

November 11, 2015

December 18, 2015

1. The plaintiff's appeal is dismissed.

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

(P) The Defendant shall pay to the Plaintiff 116,380,000 won with 5% interest per annum from September 27, 2011 to the delivery date of a copy of the instant complaint, and 20% interest per annum from the next day to the day of complete payment.

(Preliminary Claim) The defendant shall pay to the plaintiff 116,380,000 won with 5% interest per annum from August 12, 2013 to the delivery date of a copy of the application for modification of the claim and cause of the claim in this case, and 20% interest per annum from the next day to the day of complete payment.

Purport of appeal

The judgment of the first instance shall be revoked.

As stated above, the purport of the claim is stated.

1. Basic facts

The following facts are not disputed between the parties, or are recognized by Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1, 2, and 3 (including any number), and each fact inquiry with respect to BBO points Co., Ltd. in the court of first instance, based on the overall purport of the arguments.

[1]

"The plaintiff filed a lawsuit with the Seoul Central District Court 2010 Gohap25952 on March 16, 2010 (hereinafter referred to as "CC") and claimed the payment of 49,795,40 won and damages for delay." On December 2, 2010 in the above lawsuit, "CC shall pay to the plaintiff 49,795,400 won and 335,235,75,750 won among them, from March 1, 2010 to February 2, 2010, with 1.2% interest calculated from November 1, 2010 to February 2, 2010, and the decision was finalized at the rate of 49,795,400 won to 335,235,750 won, and the decision was made at the rate of 1.2% interest rate from February 23, 2010 to 20% interest rate of 49,795,400 won."

[2]

On March 31, 2011, the Plaintiff was delinquent in national taxes of KRW 542,665,010 against the Defendant.

On December 15, 2010, the defendant attached the plaintiff's claim against the above national tax credit against the plaintiff.

On March 31, 2011, the Defendant filed a lawsuit againstCC in subrogation of the Plaintiff on the basis of the above bond attachment with Seoul Central District Court 201Gahap30432, and sought the payment of the amount of the claims seized as above.

On March 31, 2011, the Defendant applied for a provisional attachment of the rent claim against CCTV Co., Ltd. (hereinafter referred to as “DD”) by Seoul Central District Court Decision 2011Kadan1722 on April 27, 2011 for the preservation of the claim.

On August 19, 2011, "CC shall pay to the Defendant 542,665,010 won and 20% interest per annum from May 25, 2011 to the date of full payment." This judgment became final and conclusive on September 9, 2011.

[3]

Meanwhile, on July 29, 2011,CC did not pay national taxes of KRW 196,561,01 to the defendant.

On July 29, 2011, on the basis of the above national tax claim againstCC, the Defendant seized the claim for rent againstCCD, and the attachment notice was served on D around August 2, 2011.

On September 26, 2011, the Defendant collected 116,380,000 won of the credit amount attached from DD as above, and appropriated it for the above national tax credit againstCC.

On August 12, 2013, the Defendant notified the Plaintiff that the said national tax claim was in arrears of KRW 173,781,310.

2. 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. The defendant attached the plaintiff's national tax claim against the plaintiff as the preserved claim and collected the amount of 116,380,000 won from D, and thus, it should have been delivered to the plaintiff who is in the position of delegating the collection claim or appropriated the amount of national tax claim against the plaintiff. Nevertheless, the defendant, however, obtained benefits without any legal grounds by appropriating the above collection claim againstCC, thereby causing damage to the plaintiff.

Therefore, the defendant should pay to the plaintiff 16,380,000 won and damages for delay from September 27, 201, which is the day following the collection from DD.

(b) Preliminary claim

(i) the first preliminary 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. The defendant, in a lawsuit filed againstCC on behalf of the plaintiff, even though the defendant's winning judgment became final and conclusive on September 9, 201, did not collect the claim againstCC, and on September 26, 201, collected the rent of KRW 116,380,000 fromCC's DD and appropriated it for the national tax claim againstCC. This is in violation of the duty of care in accordance with the terms and conditions of delegation. The plaintiff suffered damages equivalent to the above 116,380,000 won due to the defendant's violation of the duty of care in subrogation.

Therefore, the Defendant is obligated to pay to the Plaintiff KRW 116,380,000 and damages for delay from August 12, 2013, which the Defendant notified the Plaintiff of the payment of national taxes.

(ii) the second preliminary claim

The public official in charge of the property tax under the defendant's O-O tax office neglected to collectCC's claims against the plaintiff while the defendant's winning judgment became final and conclusive in the lawsuit filed by the defendant on behalf of the plaintiff, and eventually, the above KRW 116,380,00 from the corporate tax office of the same tax office to appropriate the above KRW 116,380,000 to the national tax claim againstCC, thereby causing damage to the plaintiff from being exempted from the national tax liability equivalent to the above KRW 116,380,000. Thus, the defendant is liable to compensate the plaintiff for damage pursuant to the main sentence of

Therefore, the Defendant is obligated to pay to the Plaintiff KRW 116,380,000 and damages for delay from August 12, 2013, which the Defendant notified the Plaintiff of the default of national taxes.

3. Determination

1) According to the above facts, on July 29, 201, 201, △△ Defendant seized the rent claim against CC on the basis of the national tax claim against CC. A notice of attachment was served on DoD around August 2, 2011, and △△ Defendant collected KRW 116,380,000 from DoD on September 26, 201, and appropriated it for the above national tax claim against CC.

Thus, the defendant seized the civil claim againstCC's D as a result of the disposition on default based on the national tax claim againstCC, and collected the seized claim from D.

2) Meanwhile, according to the above facts, on December 15, 201, the Defendant attached the Plaintiff’s civil judgment claim against the Plaintiff based on the national tax claim against the Plaintiff, and on March 31, 2011, filed a lawsuit seeking the payment of the amount of seized claim againstCC by subrogation of the Plaintiff based on the above claim seizure. On March 31, 201, the Defendant received the decision of provisional seizure of the amount of rent claim againstCC’s D, etc. on March 31, 201, and the Defendant’s winning decision was finalized on September 9, 2011.

Therefore, the lawsuit brought by the Defendant against the Plaintiff is a civil lawsuit brought by the Defendant to collect the seized claim against the Plaintiff by subrogation of the Plaintiff based on the seizure of the claim after seizing the Plaintiff’s civil claim against the Plaintiff based on the national tax claim against the Plaintiff. The Defendant is in the status of subrogated the Plaintiff’s civil claim against theCC in the lawsuit above.

In addition, the defendant's decision of provisional seizure of the rent claim againstCC's DD is for the preservation of the above civil claim claim againstCC, and if the defendant's decision in the lawsuit is rendered in favor of the defendant, the defendant can collect the civil claim againstCC's DD based on the winning decision.

3) The Framework Act on National Taxes provides that national taxes, additional dues, or disposition fees for arrears shall be collected in preference to other public imposts or other claims, thereby recognizing the priority of national tax claims.

Therefore, as seen earlier, the Defendant’s seizure of civil claims againstCC as a result of the disposition on default on the basis of the national tax claims againstCC, and the collection of the seized claims fromCC, may take precedence over the Plaintiff’s civil claims againstCC.

However, according to the above, the defendant seized the plaintiff's civil claim againstCC as a result of the disposition on default on the part of the plaintiff's national tax claim, and then filed a civil lawsuit againstCC in subrogation of the plaintiff based on the seizure of the claim, and received the decision on provisional seizure of the civil claim againstCC's D, etc. for the preservation of the claim. The defendant is in a position to subrogate the plaintiff's civil claim againstCC, and when the defendant's judgment in favor of the defendant was rendered in the lawsuit, the defendant can collect the civil claim againstCC's D, based on the judgment in favor of the defendant.

Therefore, the Defendant’s national tax claim againstCC may be collected in preference to the Plaintiff’s civil claim againstCC. Since the Defendant is in the position of subrogated to the Plaintiff’s above civil claim againstCC, the Defendant cannot be deemed to have a duty to deliver the collected amount to the Plaintiff, or to appropriate it to the Plaintiff’s national tax claim against the Plaintiff. The Defendant’s appropriation of the collected amount toCC’s national tax claim against the Plaintiff cannot be deemed to constitute a violation of the duty of due diligence or tort based on delegation.

4. Conclusion

Thus, the plaintiff's main claim and the conjunctive claim are all dismissed as they are without merit, and the judgment of the court of first instance is consistent with this conclusion, and the plaintiff's appeal is dismissed as it is without merit.