Suwon District Court 2013 Gohap10645 ( October 28, 2015)

It is true that all claims and obligations other than claims to be collected under the contract to bring an action shall be terminated.

(As with the judgment of the court of first instance), a set-off order against a claim for collection may not be recognized as the establishment of a collateral security right to secure the payment of delinquent tax and to agree to adjust all debts among related persons.

Article 30 of the National Tax Collection Act

Seoul High Court 2015Na2047684 Collection

Korea

00

Suwon District Court 2013 Gohap10645 ( August 28, 2015)

203.3.23

May 20, 2016

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The defendant shall pay to the plaintiff 850,000,000 won with interest rate of 20% per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is as follows, except for adding a judgment on the defendant’s argument in the trial of the court of the first instance, and therefore, it is consistent with the reasoning for the judgment of the court of the first instance.

2. Determination on the defendant's assertion in the trial room

A. Determination on the defense prior to the merits

1) Defendant’s defense

As a defense before the merits, the Defendant agreed to file a lawsuit with the Defendant that no claim or debt relationship exists between the Defendant and the Intervenor joining the Plaintiff, and that no civil or criminal procedure is proceeding with respect to the Intervenor joining the Plaintiff. Such an agreement to file a lawsuit was effective between the Plaintiff and the Defendant. As such, the instant lawsuit is unlawful on account of its violation of the Plaintiff’s Appellate Agreement.

2) Determination

The defendant's participation in the plaintiff's appeal in full view of the contents of evidence Nos. 25 and 26

In the lawsuit filed against the Intervenor for cancellation of the right to collateral security (hereinafter “related lawsuit”), the first instance court (U.S. District Court 2013 Gohap6936) rendered a judgment dismissing the lawsuit for the following reasons, and the appellate court (Seoul High Court 2014Na28734) rendered a judgment dismissing the appeal and recognized the fact that the said judgment became final and conclusive. In other words, between the Defendant (which is the Plaintiff in the relevant lawsuit; hereinafter the same shall apply in this text) and the Intervenor’s representative director’s assistant (which is the Defendant in the relevant lawsuit; hereinafter the same shall apply in this text), the Intervenor’s assistant and the Intervenor’s assistant in the lawsuit were withdrawn from all the lawsuit between the Defendant and the Intervenor, and the Defendant did not have any legal effect as to the establishment registration of the right to collateral security between the Intervenor and the Intervenor in the lawsuit and the Intervenor’s assistant in order to secure the payment of delinquent tax amount. Therefore, it is reasonable to conclude that the Plaintiff’s assistant and the Intervenor’s assistant in the lawsuit did not have any legal effect between the Plaintiff’s assistant and the Intervenor’s title.

However, it is difficult to view that the instant lawsuit seeking payment of KRW 850 million itself is in violation of the above Appellate Agreement, on the premise that the Plaintiff’s Intervenor attached the instant loan claim against the Defendant and subrogated the Plaintiff’s Intervenor on April 4, 2012. Moreover, the Plaintiff merely assumes the Plaintiff’s Intervenor’s obligation to provide a loan amounting to KRW 850 million to the Plaintiff’s Intervenor, and as a security therefor, the Plaintiff’s obligation to compensate the Plaintiff’s Intervenor for all remaining disputes on the premise that the Defendant’s establishment of the right to collateral security in the name of the Intervenor’s Intervenor in the attached list owned by the Defendant is against the above Appellate Agreement.

Therefore, the Defendant’s prior defense prior to the merits that the instant lawsuit was unlawful because it violated the Collegiate Agreement.

shall not be effective.

B. Judgment as to the defendant's assertion of cancellation of collateral security

The defendant asserts that the right to collateral security established in the name of the plaintiff supplementary intervenor in the name of the plaintiff supplementary intervenor as stated in the attached list owned by the defendant shall be secured for the loan of this case, and that the right to collateral security in the name of the plaintiff supplementary intervenor shall also be cancelled

However, even if the above right to collateral security is to secure the loan claim of this case as alleged by the defendant, the defendant's assertion itself is without merit since the defendant cannot order the cancellation of the above right to the plaintiff's assistant participant in the litigation procedure of this case brought by the plaintiff while seeking the payment of the collection amount against the defendant, since the defendant cannot order the cancellation of the right to collateral security against the plaintiff's assistant participant in this case.

C. Determination as to the Defendant’s assertion of violation of good faith

1) The defendant's assertion

The tax authority, which belongs to the Plaintiff, imposed global income tax of KRW 57,870,060 on the Defendant on the premise that KRW 1,521,774,00,000 from the Plaintiff’s Intervenor was separated and finally reverted to the Defendant. The above money, which the tax authority determined to have reverted to the Defendant, includes KRW 85,00,000,00 in this case. The tax authority imposed global income tax on the Defendant on the premise that the Plaintiff’s Intervenor’s claim regarding KRW 850,000,00 was nonexistent. In this case, the Plaintiff’s claim for collection was filed on the premise that the Plaintiff’s claim regarding KRW 85,50,000 against the Defendant exists, and thus, the Plaintiff’s claim in this case is inconsistent with the imposition disposition of global income tax and the principle

2) Determination

Even if the tax authority, as alleged by the Defendant, imposed global income tax on the Defendant as alleged, even if the Plaintiff’s tax authority imposed global income tax on the Defendant, as alleged by the Defendant, in light of the facts acknowledged earlier (as seen earlier, Chapters 9 through 8, 11 of the judgment of the court of first instance), the global income tax that the Plaintiff imposed on the Defendant is on the ground that KRW 1,521,774,000 embezzled by the Defendant was discharged from the Plaintiff’s Intervenor and reverted to the Defendant. However, the Plaintiff’s claim for the instant loan was discharged from the Plaintiff’s Intervenor on April 21, 2010, and subsequently discharged KRW 1,521,74,000 to the Plaintiff’s Intervenor (the Defendant, on the ground that the aforementioned repayment was brought against the Plaintiff’s Intervenor, a joint tortfeasor, and received a partial favorable judgment on the Plaintiff’s claim for reimbursement), and thus, the Plaintiff’s assertion that the Plaintiff’s global income tax was inconsistent with the Plaintiff’s global income tax without merit.

D. Judgment on the defendant's defense of payment

On September 8, 2015, the Defendant asserted that the Plaintiff repaid KRW 300 million to the Plaintiff as a part of the principal of the instant loan claims. If, after the date of a judgment of the first instance, the obligor, who was sentenced to provisional execution, paid the money by himself/herself to the obligee to collect the money by filing an appeal against the judgment of the first instance, and disputing the amount cited in the first instance judgment, the obligor does not recognize that the obligor has a debt equivalent to the amount cited in the judgment of the first instance, and paid the money to the obligee by means of conclusive repayment, but rather, it is reasonable to deem that the obligor paid the money to prevent the expansion of damages for delay cited in the judgment of the first instance and to avoid compulsory execution based on the declaration of provisional execution attached to the judgment. As such, the money paid by the declaration of provisional execution attached to the judgment of the first instance does not have a conclusive effect of repayment, and even if the obligor claims the payment of money in the appellate court, the appellate court does not consider such reason (see Supreme Court Decision 95Da15827, Jun.

According to the purport of Eul evidence No. 10 and oral argument, the defendant may recognize the fact that he remitted part of the judgment amount of 300,000,000 won among the judgment amount of the first instance court on September 8, 2015, which was 10 days after the decision of the first instance court of this case was rendered by the defendant. However, it is evident in the record that the defendant raised an appeal against the judgment of the first instance court of this case, brought an appeal against the judgment of the first instance, and brought an objection against the existence of the claim recognized in the judgment of the first instance, and it is reasonable to deem that the defendant paid money in order to prevent the expansion of damages for delay cited by the judgment of the first instance and to exempt compulsory execution based on the declaration of provisional execution attached to the judgment of the judgment of the court of first instance. Since the above extinguishment of the claim is not final and conclusive, it becomes effective only when the judgment to which a provisional execution is to be declared has not been revoked or altered and the repayment of the defendant's above KRW 300,00,00,00.

E. Judgment on the Defendant’s assertion on damages for delay

1) The defendant's assertion

Since the existence of the instant loan claim asserted by the Defendant in the instant litigation procedure constitutes a valid ground for defense as to whether the obligation to perform exists or the scope thereof, damages for delay as set forth in 20% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the day after the delivery of a copy of the complaint to the day of full payment cannot be applied

2) Determination

The phrase "when it is deemed reasonable for an obligor to resist the existence or absence of an obligation" under Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings refers to the time when there is a reasonable ground for the obligor's argument as to the existence or absence of an obligation and its scope. Thus, the issue of whether it is unreasonable to resist as above is related to the fact-finding and its evaluation by the court regarding the relevant case. However, in a case where the appellate court maintained the claim amount cited by the first instance court as it is, barring any special circumstance, it cannot be deemed reasonable for the Defendant to claim the existence and scope of the obligation for performance in the appellate procedure (see Supreme Court Decision 2006Da61567, Nov. 13, 2008).

In full view of the following circumstances acknowledged as a whole, i.e., ① the Plaintiff’s assertion against the Plaintiff’s Intervenor on the ground that the instant loan was seized in the first instance court, the Defendant asserted that the Plaintiff’s assertion was against the Plaintiff’s Intervenor, and set-off. On April 4, 2012, the court of first instance concluded an agreement with the Plaintiff’s Intervenor and the Plaintiff’s supplementary lawsuit. The Defendant, prior to such agreement, arranged all claims and obligations existing between the Plaintiff’s Intervenor and the Plaintiff’s supplementary intervenor and the Plaintiff’s supplementary intervenor, and, instead, decided to establish a collateral security right on the real estate indicated in the separate list for the security. The Defendant’s claim was all incurred before the said agreement, and all of the claims were extinguished by the said agreement, and the text of the agreement was written in writing on April 4, 2012, and the Defendant’s assertion that there was no reasonable ground for setting-off between the Plaintiff’s supplementary intervenor and the Defendant’s supplemental intervenor and the Defendant’s subsequent criminal charges, and that there were no grounds for the Defendant’s defense.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and the judgment of the court of first instance is just, and it is dismissed. It is so decided as per Disposition.