It is difficult to see that there was a supply of goods between a visiting distributor and a salesperson.

The transaction between the visiting distributor and the salesperson was conducted in the form of trade to disguise the supply of goods. It is difficult to deem that the transaction constitutes a "business operator who independently supplies goods for business purposes," where the salesperson is liable to pay value-added tax, because it is merely a de facto monetary transaction that attracts investments by mediating goods and pays investment allowances.

2011 Gohap76001 Return of unjust enrichment

Attached List of Plaintiffs and Revised List of Plaintiffs are as shown in Attached List of Plaintiffs

Korea

November 1, 2012

November 20, 2012

1. All of the plaintiffs' preliminary claims are dismissed among the lawsuit of this case.

2. All of the plaintiffs' primary claims are dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay to each of the plaintiffs 00 won and the amount calculated by each of 5% per annum from the day following the service date of the copy of the lawsuit of this case to the day of the judgment, and 20% per annum from the next day to the day of the judgment.

1. Basic facts

The following facts do not conflict between the Parties, and evidence A 1 to 300, and evidence A 304:

-1 to 26 each entry and the whole purport of oral proceedings may be recognized comprehensively.

(a) AAAAACos (hereinafter referred to as a "non-party company") is a company established on October 30, 2003 to engage in a business related to BB Round (hereinafter referred to as "BB") which is a multi-level marketing company. BB has six branches in Seoul, Gangnam, Busan, and Daejeon, and Daejeon, and operated 62 centers across the country. The non-party company was operating through BB's branch and center, and did not have a separate branch and center, and the two companies maintained and managed the organization of the sales organization through the organization relationship between the sub-level marketing company and the sub-level marketing company.

C. On the basis of a prospectus or a basic lecture distributed at the headquarters by each center, the non-party company recruited new sales staff by holding a business explanation meeting to invite their salespersons to join the sales office, and the Plaintiffs are hired as the sales clerks of the non-party company.

An activity has been conducted.

D. BB sold health food, etc. mainly because the sales amount is limited to not more than 1.3 million won in accordance with the laws and regulations related to multi-level marketing business, and the non-party company, where there were no restrictions, sold health food, etc., relatively high-priced and multi-family appliances, and multi-family appliances sold by the non-party company, and the cost of the goods sold by the non-party company was only 1.16% of the sales price, and the non-party company's sales have purchased the goods to enhance the performance mainly, and there was no other interest in the performance, quality or price of the goods, and most of the sales in general in ordering the goods, but the non-party company ordered the goods determined by the head of the center, etc. by taking into account the amount invested, and the non-party company did not have any particular import personnel other than these sales.

E. After that, the non-party company discontinued payment to the salespersons, and sales of part of the non-party company

The plaintiff filed a complaint against the non-party company on the charge of fraud, etc., and on June 2007, the headCC and the general manager of the non-party company were detained on the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the Act on Door-to-Door Sales, etc., and on October 30, 2007, the Seoul Central District Court sentenced the non-party company to nine years of imprisonment and five years of imprisonment, respectively, and the above judgment was all dismissed on June 12, 2008, and the appeal (Supreme Court Decision 2007No2567) and the appeal (Supreme Court Decision 2008Do2236) were all dismissed.

F. Meanwhile, between April 2006 and April 2007, the non-party company reported and paid each value-added tax to the tax authorities from January 1, 2006 to January 2007, and thereafter, on March 16, 2009, the non-party company filed a claim for correction against the tax authorities for the total amount of 00 won of value-added tax from January 2006 to January 2007, as the non-party company took the form of sale and purchase of goods to attract investment funds without actual transaction of the goods, and thus, it does not constitute supply of goods under the Value-Added Tax Act.

G. Accordingly, the pertinent tax authorities rendered a disposition rejecting a claim for correction of the non-party company to the effect that the non-party company supplied the goods purchased by the non-party company to the salesperson upon receiving the price constitutes subject to taxation pursuant to Articles 6 and 1 of the Value-Added Tax Act (hereinafter “instant refusal disposition”).

H. On August 7, 2009, the non-party company filed a tax appeal against each of the instant refusal dispositions, and on March 9, 2010, the Tax Tribunal dismissed all the non-party company's appeal on the ground that the act of selling the goods to the multi-stage salesman constitutes a transaction subject to value-added tax because the transaction type between the non-party company and the salesperson was somewhat different from the ordinary commercial transaction. The above decision reached the non-party company on March 11, 2010.

(i) On June 4, 2010, the non-party company filed a lawsuit seeking revocation of the disposition of refusal to request for the correction of value-added tax by the Seoul Administrative Court 2010Guhap23910, and the above legal personnel accepted the non-party company's claim on February 23, 2012, and "the transaction between the non-party company and the salesperson was conducted in the form of sale to pretend the supply of the goods, and its substance is merely a de facto monetary transaction that attracts investment funds and pays investment allowances. Accordingly, it cannot be deemed that there was the supply of the goods subject to value-added tax, and it is unlawful for the non-party company to calculate the tax amount by including the sales from the transaction with the salesperson at the time of filing the initial value-added tax to the tax authority in the tax base. The tax authorities' disposition of refusal on the premise that the initial return of value-added tax is legitimate, and the tax authorities' disposition of refusal to request for correction was all revoked (hereinafter referred to as "related judgment"), and the related judgment is pending the appeal by the tax authorities.

2. The plaintiffs' assertion

(a) The primary claim

The plaintiffs recommended that part of the goods purchased from the non-party company or BB be paid to sub-business operators and used without compensation. This constitutes advertising expenses, etc. for business, and the money goods fall under the category of sales activities, etc., and collected part of the purchase price to intermediate wholesalers, and the plaintiffs actually engaged in wholesale business. Accordingly, if multi-stage salesmen such as the plaintiffs are registered in accordance with Article 7 (6) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 19892 of Feb. 28, 2007, hereinafter referred to as the "former Enforcement Decree of the Value-Added Tax Act"), the plaintiffs are naturally recognized as business operators even if each individual person did not apply for the registration of business, and in this case, the plaintiffs can normally be subject to the refund of value-added tax, but since the above plaintiffs actually engaged in wholesale business, they are obliged to pay the difference between value-added tax and non-party 206, and then, the plaintiffs are obligated to pay the price for late 10,0006.

(b) Preliminary claim

Since the plaintiffs suffered enormous damages due to the acts of fraud of the non-party company, they have the right to claim damages against the non-party company due to default or illegal acts. Meanwhile, according to the relevant judgment, the non-party company holds the right to claim restitution of unjust enrichment equivalent to KRW 000 against the defendant, which will occur in the future, and the plaintiffs may exercise the subrogation right against the defendant in order to preserve the damages claim against the defendant by using the right to claim restitution of unjust enrichment against the defendant of the non-party company that will occur in the future as the subrogation claim. Accordingly, the defendant is liable to pay unjust enrichment

3. Determination

A. Judgment on the main defense of the conjunctive claim

The obligee’s subrogation right may be exercised by the obligee to preserve his/her claim only when the obligor does not exercise his/her right against a third party obligor (see, e.g., Supreme Court Decisions 2008Da65839, Mar. 12, 2009; 92Da3016, Nov. 10, 1992). In addition, “the obligor does not exercise his/her right by himself/herself” means that the obligor has a right against the third party obligor and the obligor is able to exercise his/her right, but does not exercise his/her right by himself/herself, and that the obligor does not exercise his/her right by himself/herself. It means that there is no legal obstacle that makes it impossible to exercise his/her right by himself/herself, and that the obligor does not exercise his/her right by subrogation until the obligor does not exercise his/her right by subrogation (see, e.g., Supreme Court Decision 91Da91312, Feb. 25, 1992).

B. Judgment on the main claim

(1) Article 2 of the former Value-Added Tax Act (amended by Act No. 8142 of Dec. 30, 2006, hereinafter referred to as the "former Value-Added Tax Act") provides that "any person who supplies independently any goods or services for profit, regardless of whether it is for profit, is liable to pay the value-added tax under this Act." Article 5 (1) of the same Act provides that "any person who newly starts a business shall register his business with the head of the competent district tax office within 20 days from the date of commencement of the business as prescribed by the Presidential Decree." Article 17 (1) of the same Act provides that "The value-added tax amount payable by a multi-level salesman shall be the amount of the tax for the goods or services supplied by him after deducting the input tax amount from the tax amount for the goods or services supplied by him, and any person who has the right to receive the input tax amount exceeding the input tax amount under the above Act shall be entitled to be refunded to the head of the competent tax office independently under the Value-Added Tax Act, and the multi-level salesman shall be registered with one multi-level.

(2) Therefore, first of all, the following circumstances can be found by comprehensively considering whether the plaintiffs were registered (general registration) in accordance with the procedure stipulated in Article 7(6) of the former Enforcement Decree of the Value-Added Tax Act, and the overall purport of the statements and arguments in Article 301-1-7 and subparagraph 3-2, and the following circumstances can be found: (i) the plaintiffs were actually general registration; or (ii) the non-party company submitted a multi-level salesman general registration report necessary for the plaintiffs general registration to the tax authority; and (ii) the multi-level marketing business entity submitted a multi-level marketing salesperson report to the tax authority and the tax authority received the above report; and (iii) the non-party company No. 301-7 is merely a multi-level marketing salesperson report prepared in the name of the non-party company, the actual operator of the non-party company, and there is no other evidence to acknowledge that the non-party company was actually submitted to the above tax authority to the non-party company and the non-party company Nos. 7 and the non-party company Nos. 1-party No.

(3) In addition, if the supply of goods seems to exist in appearance, it is merely the pretending or iceing the supply of goods, and if it can be deemed that only an investment payment was made without the transaction of goods, it cannot be deemed that there was the supply of goods that is the cause of taxation of value-added tax, and whether the objective value of the goods in question and its supply price are reasonable, and whether the person who receives the supply actually intended to use and consume the goods, and whether the investment was scheduled to recover between the parties, it should be determined independently and specifically in consideration of all the circumstances, including whether the price of the goods subject to the transaction between the plaintiffs and the non-party company was determined independently and specifically (see Supreme Court Decision 2006Du13497, Dec. 24, 2008). In light of the legal principles as seen earlier, it is difficult to view that the Plaintiffs, including the Plaintiffs, were actually liable to purchase and sell the goods from the non-party company and to pay the goods to the non-party company more than the price of the goods in question.

(4) Furthermore, Article 45-3 of the former Framework Act on National Taxes (amended by Act No. 8139, Dec. 30, 2006; hereinafter referred to as the "former Framework Act on National Taxes") provides that "A person who fails to file a tax base return within the statutory due date of return" shall be entitled to file a tax base return within the statutory due date of return, and only a person who has a tax amount, shall be entitled to file a tax base return within the statutory due date of return (hereinafter referred to as "after the due date of return"), unlike the previous Act, the former Act expanded the scope of tax payable within the statutory due date of return, and Article 6 of the Addenda of the same Act provides that the above revised provision shall apply from the date at which the statutory due date of return comes after January 1, 2007; and the plaintiff shall be limited to the portion on which the statutory due date of return comes after the due date of return after January 1, 207; the plaintiff shall file a tax return within the statutory due date of return within 20.5 days after 20.

(5) Therefore, the plaintiffs' primary claims are without merit.

4. Conclusion

Thus, the part of the plaintiffs' preliminary claims in the lawsuit of this case is dismissed as all unlawful, and

The primary claim of the plaintiffs is dismissed as it is without merit, and it is so decided as per Disposition.