Seoul Administrative Court 2009Guhap3119 ( November 26, 2009)

Seocho 209west 1598 (Law No. 26, 2009)

Cases where there is a claim other than the claim for distribution in the distribution through an auction.

As long as the Plaintiff has participated only in the distribution procedure by designating only the loan principal and interest on the senior collateral as the claim for distribution, the Plaintiff may not set off other claims from the dividend amount, and as such, the remaining amount excluding the principal and interest on the dividends falls under interest income.

The contents of the decision shall be the same as attached.

○ Kim

Head of Yeongdeungpo Tax Office

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of KRW 15,702,760 on the plaintiff on February 10, 2009 shall be revoked.

1. Quotation of judgments of the first instance;

A. The reasoning for this case is as follows. This court’s reasoning is as stated in the judgment of the first instance except for the portion to be determined additionally in this case. Thus, this is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

B. Additional determination

(1) Even if the Plaintiff filed an application for auction with the claim claim amounting to KRW 350 million, totaling KRW 250 million, interest KRW 50 million, and KRW 50 million, the Plaintiff’s claim against the instant company (i.e., the above loan amounting to KRW 250 million + additional loan KRW 100 million) shall be deemed a demand for distribution of principal amount to KRW 300 million, and therefore, the Plaintiff shall be deemed a demand for distribution of KRW 300 million.

The Plaintiff, on October 8, 2005, lent the instant loan of KRW 250 million to the instant company as collateral, set up the right to collateral of KRW 300 million on October 17, 2005, and according to the evidence No. 2-1, 2, 3, 4, 11, 12, and 13, the Plaintiff additionally lent KRW 100 million to the instant company on April 8, 2006 (Provided, That the loan of this case and the loan of KRW 100 million were stated as principal amount of KRW 350,50,000,000,000,000,000,000 won with the loan of KRW 36,50,000,000,000,000,000,000 won with the loan of KRW 2,500,000,000,000,00 won with the loan of this case as collateral.

As revealed in the above facts, the Plaintiff merely loaned KRW 250 million and interest on the loan of KRW 100,000 and KRW 300,000 as the claim amount while applying for auction, and did not additionally lend the loan of KRW 100,000,000 as the claim amount. Although the Plaintiff stated the loan of KRW 250,000 and interest on the loan of KRW 300,000 as the claim amount in addition to the loan of this case upon submitting the claim statement, the Plaintiff did not view that the loan of KRW 300,000 and KRW 300,000,000,000,000 as the loan amount of KRW 30,50,000,000,000 as the loan amount of KRW 250,000,000 as the dividend amount of KRW 5,000,000,000 as the dividend amount of KRW 1,50,000,00.

(2) The plaintiff alleged that since the plaintiff notified that all of the dividends to the company of this case should be appropriated for principal after receiving a dividend of KRW 300 million, the plaintiff cannot be viewed as interest income of KRW 50 million out of the amount distributed to the company of this case. However, the plaintiff's statement in Gap evidence No. 14, which corresponds to the fact that the plaintiff notified the above facts, is difficult to believe, and there is no other evidence to acknowledge

(3)Therefore, the plaintiff's above assertion is without merit.

2.In conclusion

Therefore, the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.