Cho High Court Decision 2010Du0952 (Law No. 31, 2010)

The plaintiff is the most transferee and thus a disposition rejecting the cancellation of attachment is legitimate.

In full view of the fact that the non-party company appears to have demanded the establishment of a collateral security right to secure the performance of the claim of this case in the name of the non-party company, not the non-party company, for the purpose of evading the payment of national taxes in arrears at the time of the conclusion of the contract of this case, the plaintiff

National Tax Collection Act Article 53 (1) 2

2010Guhap44733 The revocation of revocation of the application to cancel the attachment.

XX

The director of the tax office

June 14, 2011

July 7, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's refusal to cancel the attachment of remaining claims of KRW 535,00,000 against the plaintiff on February 17, 2010 shall be revoked.

1. Details of the disposition;

A. The Defendant, on September 29, 2009, sold the 787,358,230 won and the 214m2 and its ground (hereinafter referred to as the “each of the instant real property”) to the OONz (hereinafter referred to as the “OO”) company, as indicated in the attached claim attachment, on the ground that the Defendant was delinquent in national taxes of 787,358,230 won in total, and that the non-party company sold the 00,000m2 and its ground (hereinafter referred to as the “each of the instant real property”) to the OONz (hereinafter referred to as the “O”), and notified the non-party company and the O on November 30, 2009 of the remaining purchase price to be paid on November 1, 2009 (hereinafter referred to as the “the instant claim”).

B. At the time of the instant attachment disposition against the Defendant on November 2, 2009, the Plaintiff asserted that the instant claim was already transferred from Nonparty Company and reverted to the Plaintiff, and applied for the cancellation of the instant attachment disposition pursuant to Article 53(1)2 of the National Tax Collection Act, but the Defendant rejected the Plaintiff’s allegation on February 17, 2010 on the ground that it cannot be recognized as the Plaintiff’s allegation (hereinafter “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on March 11, 2010, but was dismissed on August 31, 2010.

[Ground of recognition] Facts without dispute, Gap 6, 7 evidence, Gap 8-1 and 2, and the whole pleading

chapter 6

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On September 18, 2009, the Plaintiff, as an internal director of the non-party company, made a verbal agreement between the non-party company and the non-party company to receive the instant claim as a repayment of wage claims in arrears with the other executives and employees. On September 21, 2009, the Plaintiff entered into a mortgage agreement with the O on each of the instant real estate as a secured claim, and entered into a mortgage agreement with the Plaintiff on September 21, 2009, which provides that the instant claim as a secured claim, thereby obtaining the consent to the assignment of the instant claim pursuant to the certificate of fixed date (such as a written notice of completion of registration attached with the mortgage agreement, and evidence No. 4-1, No. 4-2). The instant attachment disposition conducted after the date of the attachment constitutes "where the third party's assertion of ownership at the time of attachment is deemed to be reasonable." Therefore, the instant disposition on other premise is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) On March 25, 2008, the non-party company entered into a sales contract with theO to purchase each of the instant real estate in the amount of KRW 3.5 billion from the O on the condition that it shall pay KRW 950 million up to the 27th of the same month, and the remaining KRW 2.55 million shall be paid by the OO on each of the instant real estate in the manner of repaying the obligations for collateral loans on behalf of the OO on each of the instant real estate. If the non-party company is unable to repay the above obligations, the non-party company entered into an agreement with theO that it may repurchase each of the instant real estate by exercising its right to complete a pre-sale agreement.

2) On March 31, 2008, the registration of transfer of ownership in the name of the non-party company and the provisional registration of transfer of ownership in the name of the non-party company was completed on the ground of the pre-sale agreement.

3) On September 18, 2009, O again purchased the instant real estate between the non-party company and the non-party company by exercising the right to make a pre-sale agreement on the ground that the non-party company failed to fully perform its obligations for the above loans by O, and entered into a sales agreement with the non-party company on November 1, 2009, with the remainder of KRW 1 billion (=3.5 billion - KRW 2.43 billion - KRW 2.5 billion), out of the remainder of KRW 1 billion (i.e., KRW 3., KRW 35 billion - KRW 2.430 million), the remainder of KRW 5 million on the date of the contract, and the remainder of KRW 5,500,000 on November 1, 2009 (hereinafter referred to as the “instant sales agreement”).

4) Meanwhile, on September 21, 2009, prior to the payment date of the remainder, O completed the registration of ownership transfer based on the above provisional registration under the name of O on each of the instant real estate on the same day, and on the same day, O completed the registration of ownership transfer with respect to each of the instant real estate with respect to the Plaintiff as the mortgagee and the claim amounting to KRW 535 million.

5) On September 21, 2009, the receipt date of the Seoul Western District Court registry office, etc. affixed a seal on the written information on the establishment of the above right to collateral security and the written notice on the completion of the registration.

6) The non-party company is a company established by △△ Shipping, one of the affiliates of △△ Group, which was established by investing 100%. At the time of the instant attachment disposition, the non-party company was delinquent in national taxes of KRW 787,358,230 as indicated in the attachment of claims

7) The Plaintiff has worked as an affiliate of △△ Group. On August 24, 2009, the Plaintiff was appointed as the inside director of the non-party company and the inside director of △△ Shipping on December 1, 2009, respectively.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, and 4 evidence 1, 2, Gap evidence 3, Eul evidence 2-1, 2, Eul evidence 3-1, 2, and 3-1, 2, and 3, the purport of the whole pleadings

D. Determination

As alleged by the Plaintiff, the registration of creation of a new mortgage was completed on September 21, 2009 with respect to whether the Plaintiff acquired the instant claim by means of a certificate with a fixed date, and on each real estate of this case, with the maximum amount of KRW 535 million (the same amount as the amount of the instant claim) in the future of the Plaintiff, and on September 21, 2009, with the registration date affixed on September 21, 2009, the registration officer’s seal on the “registration information and notice of completion of registration” on the establishment of the said right to collateral security, but in light of the following circumstances, it is difficult to recognize that the Plaintiff acquired the instant claim from the non-party company at the time of the instant seizure disposition and obtained the approval from the debtor’s O’s certificate by taking over the instant claim at the time of the instant seizure disposition, and there is no other evidence to acknowledge otherwise.

Rather, according to the above facts and evidence Nos. 9-1 through 6, Eul evidence Nos. 6-1, 2, 4, and 9-1 through 4, 10-1, 2, 3, 11-1 through 5, 12-1, and 2, the whole purport of the pleadings can be comprehensively considered in the above facts and the following circumstances, i.e., the plaintiff's transfer of wage claims to the plaintiff on September 18, 2009, by asserting that the non-party company was transferred the above claim of this case from the non-party company to the non-party 6, and that the non-party 1, 6-2, 9-1 through 4, 10-2, 10-1, 11-5, 12-1, and 2, 300,000,000 won were not presented to the non-party 5,000,000 won were not received from the non-party 1,000.

Therefore, the plaintiff's above assertion on a different premise is without merit without further review.

3. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.