Seoul Central District Court-2013-Ga-92642 ( December 12, 2014)

Distribution Order of dividends after the effect of seizure

In light of the fact that the Plaintiff neglected the registration of mortgage transfer for five years even if the secured debt was acquired by transfer from the delinquent taxpayer, it seems that the secured debt is separated and transferred, and thus, it is legitimate to distribute dividends to the Defendant as it cannot be set up against the Defendant’s seizure.

Article 154 (Lawsuit of Demurrer, etc. against Distribution)

2015Na45924

AA Stock Company

Korea

Seoul Central District Court 2013Kadan92642

December 23, 2016

January 20, 2017

1. The plaintiff succeeding intervenor's appeal is dismissed.

2. The costs of appeal shall be borne by the intervenor succeeding to the plaintiff.

The judgment of the first instance shall be revoked. The defendant shall pay to the participant succeeding to the plaintiff 78,95,461 won and the amount calculated by applying 5% per annum from June 1, 2012 to the delivery date of the complaint and 20% per annum from the next day to the day of complete payment.

1. Basic facts

A. On December 26, 2007, FF completed the registration of the establishment of the right to collateral security in the name of GGGG on the ground of the delinquency in tax payment of GGG on September 2, 2009, FF registered the establishment of the right to collateral security in the name of the debtor FF, FF, GG, and maximum debt amount of KRW 120 million (hereinafter the “instant right to collateral security”). However, FF registered the seizure of the instant right to collateral security in the name of GGGGG on August 27, 2009, on the ground of the attachment of the right to collateral security in the name of GGG on August 27, 2009.

C. On September 9, 201, upon application for auction by the Industrial Bank of Korea, which is the first collateral security right of the instant building, the first collateral security right of the instant building, the decision to commence voluntary auction was rendered (Seoul Southern District Court Decision 201Hu19970, hereinafter “instant auction procedure”).

D. On February 3, 2012, after the commencement of the instant auction procedure, GG sent the FF a notice of transfer of the obligation to the Plaintiff’s succeeding intervenor, stating that “GF transferred to the Plaintiff all the claims agreed upon by the agreement and all the rights accompanying such claims, including the right to collateral against the FF and the right to collateral against the agreement.” Furthermore, on April 3, 2012, “a final claim transfer as of the instant right to collateral security was entered into on December 26, 2007,” and the supplementary registration of the transfer of the right to collateral security was completed in the future of the Plaintiff succeeding intervenor. The Plaintiff’s succeeding intervenor presented the “written transfer contract of December 26, 2007” and the “written contract of December 26, 2007” with the necessary documents for the transfer of the right to collateral security and the transfer of collateral security. The content and the following are as follows.

E. After receiving a payment order (Seoul Central District Court 2012j28661 on May 9, 2012) against the Plaintiff’s succeeding Intervenor, the Plaintiff (hereinafter referred to as “III”) received the payment order (Seoul Central District Court 2012j2861), “The obligation to be paid to the Plaintiff’s succeeding Intervenor during the instant auction procedure” was issued a seizure and collection order as to “the obligation to be paid to the Plaintiff’s succeeding Intervenor” (Seoul Central District Court 2012TTT15203 on May 17, 2012), and the above collection order was served to the Defendant, who is the garnishee on May 22, 2012.

F. During the instant auction procedure on May 24, 2012, the auction court distributed dividends to the Defendant on the ground that ① KRW 17,640,000 to the applicant creditor and the JJ-based limited liability company, the mortgagee and the mortgagee, and ② distributed KRW 78,995,461 to the seizure and collection authority of the Plaintiff’s Intervenor who succeeded to the instant collective security (hereinafter “instant dividends”), but the instant dividends were distributed to the Defendant on the ground that “The fourth institution, other than HH tax office, was attached to the disposition on default.”

G. III appeared on the date of distribution and raised an objection to the full amount of the instant dividend, and filed a lawsuit of demurrer against the JJ-limited company and the Defendant (Seoul Southern District Court 2012Gahap10219). Accordingly, the auction court deposited the instant dividend on June 1, 2012 (Seoul Southern District Court 2063, 201).

H. Around February 2013, III voluntarily withdrawn a lawsuit of demurrer against the Defendant against the instant lawsuit against the Defendant on April 5, 2013. However, on September 11, 2013, III submitted to the court the “application for the whole release and waiver of the collection of the said claim and collection order,” and the said notification of rescission of execution reached September 17, 2013 to the Defendant.

I. On January 15, 2014, the Plaintiff’s succeeding intervenor submitted an application for intervention in succession to the court of first instance on the ground that the Intervenor’s succeeding intervenor had recovered the standing to seek payment of the instant dividends by waiving his status as a collection right holder.

(j) On October 10, 2014, the Defendant (HH Tax Office) received totaling KRW 80,444,200,00 from the instant dividends and interest thereon.

Facts without any dispute, Gap's 1 through 6, 15, 21 through 25, Gap's 1, 2, 4, 5, 8 to 10, and the purport of the whole pleadings.

2. The parties' assertion;

A. The plaintiff's successor's assertion

1) The secured claim of the instant right to collateral security is a promissory note claim with a face value of KRW 120 million against the FF of GG, or a promissory note claim with a face value of KRW 1220 million against the FF of the Plaintiff’s succeeding intervenor. Furthermore, GG transferred its own promissory note claim with the instant right to the Plaintiff’s succeeding intervenor on December 26, 2007. However, the Defendant’s seizure of the secured claim of the instant right to collateral security was made on September 2, 2009, after the secured claim was transferred. As such, the Defendant cannot assert the effect of the instant seizure against the Plaintiff succeeding Intervenor, and as otherwise, the Defendant’s seizure is null and void due to the failure to possess a promissorysory note, failure to confirm a tax claim, excessive seizure, excess seizure, etc., the Defendant cannot assert the status of the seizure right holder in the instant auction procedure.

2) Meanwhile, the Plaintiff’s succeeding intervenor became a mortgagee on April 3, 2012 upon the transfer registration of the instant right to collateral on December 26, 2007 by the Plaintiff’s succeeding intervenor. Therefore, even though the instant dividend dividend distributed based on the instant right to collateral should be distributed to the Plaintiff’s succeeding intervenor at the instant auction procedure, the Defendant received the deposited dividend, thereby unjust enrichment. Accordingly, the Defendant is obligated to return the instant dividend to the Plaintiff’s succeeding intervenor KRW 78,995,461.

B. Defendant’s assertion

1) The Plaintiff’s succeeding intervenor is a person who is merely a debtor of a collection order issued by III, and thus, standing to sue to claim collection money is not recognized.

2) On or around December 2007, the Intervenor succeeding to the Plaintiff and GG are doubtful whether the agreement on the assignment of the secured debt of the instant right to collateral and the agreement on the transfer of the right to collateral was actually concluded. Therefore, it cannot be readily concluded that the Intervenor succeeding to the Plaintiff was a mortgagee of the instant right to collateral security. Even if the Intervenor was a mortgagee of the instant right to collateral security, the time when GGGG, which is the transferor of the instant right, notified the obligor FF of the assignment of the claim is after the Defendant’s seizure, and the transfer registration of the instant right to collateral security was made after the Defendant’s seizure.

3. Judgment on the Defendant’s main defense

A. In the instant case, the Plaintiff’s succeeding intervenor’s right to claim against the Defendant is the monetary claim of the Plaintiff’s succeeding intervenor as to the dividend of the instant case. However, the third party’s standing to claim payment upon receiving a collection order regarding the said claim was transferred to III.

B. However, as long as the standing to sue has been recovered from the Plaintiff’s succeeding intervenor during the instant lawsuit pending in the instant lawsuit, the Plaintiff’s succeeding intervenor’s participation is lawful, and the Plaintiff’s standing to sue seeking performance of monetary payment is recognized in itself as long as the instant lawsuit is a performance lawsuit, insofar as the Plaintiff’s standing to sue has been recovered from the Plaintiff’s succeeding intervenor. Accordingly, the Defendant’s main defense cannot be accepted.

4. Judgment on the merits

A. In order to accept the instant claim by the Plaintiff’s succeeding intervenor, the Plaintiff’s succeeding intervenor should have been the mortgagee of the instant right to collateral security at the time of the instant auction procedure’s distribution procedure, which is premised on the premise that the Plaintiff’s succeeding intervenor continued to have the effect of the instant right to collateral security at the time the registration of transfer of collateral

B. However, on December 2007, the Plaintiff’s successor asserted that “the secured debt of the instant right to collateral and the instant right to collateral security was transferred from GGG, but the registration of transfer of the instant right to collateral security was completed on or around April 2012.” The Plaintiff asserted that the instant right to collateral security and the instant right to collateral security were separated from the instant right to collateral security in itself for a considerable period of time.”

C. A mortgage is not transferred separately from the secured claim (Article 361 of the Civil Act). If there are special circumstances in which disposal of secured claim is not complied with even if the secured claim is disposed of, the assignee of the claim will take over the secured claim without any secured right, and the secured right which does not comply with the disposal of the claim is extinguished (see Supreme Court Decision 97Da33997, Feb. 5, 1999). However, in cases where the secured claim and the secured right are transferred together with the secured right, the transfer of the right to collateral takes effect only by the declaration of intention between the parties concerned, but the transfer of the secured right takes effect with the transfer of the right to collateral, so long as it is inevitable to a certain extent between the transfer of the secured claim and the transfer of the secured right, it cannot be deemed that the secured right becomes null and void on the ground that the secured claim are first transferred and temporarily changed (see Supreme Court Decision 2001Da788, Oct. 10, 2003).

D. On or around December 2007, the Plaintiff’s succeeding intervenor asserted that the secured debt of the instant right to collateral and the instant secured debt were respectively taken over on or around April 2012, the Plaintiff’s succeeding intervenor completed the instant registration of transfer on or after the lapse of about four years and five months. Furthermore, the court of the first instance stated the following: “The Plaintiff’s succeeding intervenor entered into an auction on the instant building after the lapse of four years and five months; and the Plaintiff’s succeeding intervenor entered into the registration of transfer on or after the completion of the instant seizure.” However, it is evident that the foregoing circumstance could not be justified if the Defendant completed the registration of transfer of collateral while the Plaintiff’s succeeding intervenor was entering into the registration of transfer of collateral and the instant secured debt.”

E. Therefore, the instant right to collateral security was extinguished upon the separation and transfer of the secured claim. The Plaintiff’s succeeding intervenor, on its own assertion, was the person whose effect of the instant right to collateral security was extinguished (see Supreme Court Decision 95Da44740, Apr. 12, 1996). Thus, even if the Plaintiff’s succeeding intervenor was transferred the secured claim from GG on December 12, 2007, even if it was true that the Plaintiff’s succeeding intervenor was transferred the secured claim from GG, the Plaintiff’s succeeding intervenor cannot exercise his right based on the instant right to collateral security in the instant auction procedure (the same day as the date the instant right to collateral security was established in the name of GG, was transferred to the Plaintiff’s succeeding Intervenor).

F. Meanwhile, the Plaintiff’s succeeding intervenor asserts to the effect that FF’s secured debt of the instant right to collateral security is FF’s face value of KRW 120 million issued to the Plaintiff’s succeeding Intervenor. However, the claim and the mortgage secured thereon cannot vary depending on the subsidiary nature of the right to collateral security, and in this case, there was an agreement between the Plaintiff’s succeeding Intervenor, GG, and FGF on the establishment of the right to collateral security in the name of GGG regarding the claim of the Plaintiff’s succeeding intervenor in the instant case, or GGG.

Inasmuch as there are no special circumstances, such as the actual reversion of the above secured debt, or the existence of an indivisible relationship between the Plaintiff’s succeeding intervenor and GGG with the obligee (see, e.g., Supreme Court Decision 2008Da6478, 6478, 6485, 64492, Nov. 26, 2009). Thus, even in the case of the Plaintiff’s succeeding intervenor’s assertion, the instant secured mortgage still remains effective.

G. Ultimately, the claims of the Plaintiff’s succeeding intervenor cannot be accepted without having to further examine the other arguments of the Plaintiff’s succeeding intervenor and the Defendant.

5. Conclusion

Therefore, the plaintiff's claim by the plaintiff succeeding intervenor shall be dismissed as it is without merit, and the judgment of the court of first instance is just, and the appeal by the plaintiff succeeding intervenor is dismissed as it is without merit. It is so decided as per Disposition.