Attachment of claims is effective that the seizure of claims shall prohibit the creditor and debtor of the attached claims from all acts of disposal and enable them to be collected on behalf of the defaulted taxpayer.

The seizure of claims under Article 41 of the National Tax Collection Act prohibits an obligee and obligor subject to seizure from all acts of disposal, such as repayment, collection, etc. of claims, and collects on behalf of a delinquent taxpayer. Thus, a garnishee cannot repay claims subject to seizure to a delinquent taxpayer, and only can it be performed to the State that is the person subject to collection.

Article 41 of the National Tax Collection Act

2011Chap83801 Collections

Korea

XX Stock Company

March 22, 2012

April 19, 2012

1. The defendant shall pay to the plaintiff the amount of USD 000 and the amount calculated by applying the rate of 20% per annum from March 16, 2012 to the full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff the amount of USD 000 and the amount calculated by the ratio of 20% per annum from the next day after the date of service of a copy of the complaint in this case (the plaintiff stated that "the date of service of a copy of the complaint in the application for reduction of claim and change of cause" as of March 15, 2012, which seems to be a clerical error) to the date of full payment.

1. Basic facts

(a) Charterage claims against the defendant of XX commercial vessels (the occurrence of a claim for seizure);

As of November 30, 201, 201, when a charter party entered into with the defendant on February 26, 2010 (hereinafter referred to as the "charter party of this case") entered into with Lervi Service Ltd. (hereinafter referred to as the "Std."), which is a corporation engaged in the business of ocean-going cargo transportation, etc., there was a charterage claim of US$ 00 against the defendant.

(b) National taxes in arrears and the Plaintiff’s seizure;

As of April 25, 201, the PP Line failed to pay a total of 000 won of national taxes (corporate tax and value-added tax). On April 26, 2011, the head of the Seocho District Tax Office under his jurisdiction attached charterage claims against the Defendant of the PP Line and notified the Defendant of the attachment on the same day (hereinafter referred to as the “instant attachment disposition”).

C. Defendant’s refusal to collect

On June 27, 2011, the head of Seocho District Tax Office demanded the Defendant to pay the unpaid charterage to the Defendant by June 30, 201, with collection based on the above seizure, but the Defendant did not comply with the request.

[Ground for Recognition] : Facts without dispute, Gap evidence 1, 2 through 6, Eul evidence 1, and the purport of whole pleadings

2. Determination on the cause of the claim

A. The seizure of claims under Article 41 of the National Tax Collection Act prohibits all acts of disposal, such as repayment, collection, etc., against the creditor and debtor of the seized claims, and collects on behalf of the defaulted taxpayer. Thus, the garnishee cannot repay the attached claims to the defaulted taxpayer, and only can it be performed to the country that is the collection authority (see, e.g., Supreme Court Decision 9Da3686, May 14, 1999).

B. According to the above facts, the defendant is obligated to pay damages for delay at the rate of 20% per annum from March 16, 2012 to the date following the delivery date of the application for reduction of claim and change of cause of the claim as of March 15, 2012, which is the day of service of the application for reduction of claim and change of cause of the claim as of March 15, 2012 to the date of full payment under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (the defendant asserts that there is no ground to apply the rate of damages for delay of 20% per annum under the above Special Cases Concerning Legal Proceedings, but the judgment of this case is a judgment ordering the performance of monetary obligation, and therefore the interest rate of 20% per annum from the day following the delivery date of a copy of the complaint

However, the Plaintiff sought payment of damages for delay at the rate of 20% per annum from the day after the delivery date of the duplicate of the instant complaint to the day of full payment. However, at the time of the Plaintiff’s filing of the suit, the Plaintiff sought payment of US$ 4,705,00. On January 11, 2012, the Plaintiff extended the claim to US$ 6,627,584.58. On March 15, 2012, the purport of the claim was reduced to US$ 000 again on March 15, 2012, and the claim was extended later than the time of the first lawsuit, it is reasonable to apply the above rate of damages for delay under the Special Act from the day following the date of delivery of the application for reduction of claim and change of cause as of March 15, 2012. Therefore, the Plaintiff’s claim that exceeds the above recognition scope

3. Judgment on the defendant's assertion

(a) Defenses to arbitration agreement;

1) The Defendant agreed to resolve all disputes regarding the charter contract of this case between the guiding merchant party and the English law as the governing law in the arbitral proceedings. On the ground of Article 41(2) of the National Tax Number Act, the Plaintiff seeking payment of charterage on behalf of the Defendant is bound by the said sub-agreement, and thus, the instant lawsuit, which is not governed by the arbitral proceedings, is unlawful.

2) Under Article 41(2) of the National Tax Collection Act, the chief of a tax office’s seeking performance of an obligation against a third-party obligor by subrogation of a delinquent taxpayer is understood as exercising the right of collection, and in principle, the third-party obligor may set up against the collection obligee all defenses arising before seizure, including arbitration agreement.

However, the validity of the arbitration agreement cannot be freely applied to all disputes (Article 2(2) of the Arbitration Act provides that "this Act does not recognize arbitration procedures or provides that it shall not affect the law that provides for arbitration to be referred to arbitration in accordance with procedures different from those of this Act and treaties in force in the Republic of Korea," and it is necessary to restrict the validity of the arbitration agreement in a limited area where special public interest is demanded. As such, the State's taxation and collection right is a serious public interest issue and the exercise of the collection right under the above provision of the National Tax Fixed Number Act is a refund of the disposition for arrears aimed at collecting taxes, so it cannot be seen as identical to the exercise of general collection right.

Therefore, even if there is no dispute between the delinquent taxpayer and the third debtor as to the contents of the instant charter contract and the existence of the claim subject to seizure and the existence of the obligation to pay, it is very unreasonable for the State to exercise the right to collect through arbitration procedures in a foreign country, in terms of tax speed, economic feasibility, and most of all, in full view of the following: (a) the existence of the instant charter contract between the Plaintiff and the Defendant, as well as the existence of the claim subject to arbitration, there is no dispute as to the existence of the claim subject to arbitration, and the time of payment, and thus, there is no dispute over the existence of the claim subject to arbitration against the Defendant of XX lines; and (b) the Defendant cannot set up against the Plaintiff’s claim by arbitration agreement under Article XX.

B. The defense of illegality of attachment disposition

1) In addition, the Defendant asserts that the disposition of taxation against XX merchant vessel, which is a foreign corporation, is unlawful, so this case’s seizure disposition based on this is also unlawful.

2) The above assertion is ultimately purporting to dispute the existence of the enforcement claim, and the garnishee cannot assert the absence of enforcement claim as a defense in the collection claim lawsuit. Thus, this part of the defendant's assertion is without merit without any further determination (the defendant does not claim the grounds for the attachment disposition of this case except for the illegality of the taxation disposition).

C. Demanding the risk of double payment

1) The defendant asserts that even if the defendant pays the charterage of this case to the plaintiff, the defendant cannot respond to the plaintiff's claim because of the risk of double payment because he could not defend against the beneficiary in XX or his creditors.

2) This part of the assertion is related to the de facto disadvantage of the defendant, and it cannot be a ground for defense against the plaintiff's claim for collection of the collection amount, and it is insufficient to recognize that there is a risk of double payment only with the statement of the evidence No. 2, and there is no other evidence to acknowledge it. Therefore, this part of the assertion

4. Conclusion

The plaintiff's claim of this case is accepted within the scope of the above recognition, and the remainder is dismissed.