[2] Whether distribution shall be permitted in cases where a tax claim holder filed a claim for delivery in the realization procedure by the holder of the right to separate settlement under Article 84 of the Bankruptcy

[2] In the realization procedure by the holder of the right to separate settlement under Article 84 of the Bankruptcy Act, the court of execution shall grant a claim for the delivery only to the tax claims which take precedence over the holder of the right to separate settlement, and deliver the dividend to the

2. The costs of appeal are assessed against the defendant.

Of the distribution schedule prepared by the same court on November 6, 2001 with respect to the auction case of real estate rent with the Southern Branch of the Seoul District Court, the dividends of the plaintiff shall be KRW 1,739,902,320, and the dividends of KRW 6,434,894,369 shall be corrected to KRW 4,694,92,449.

2. Purport of appeal

The part of the judgment of the court below against the defendant shall be revoked and the plaintiff's claim corresponding to the revocation shall be dismissed.

Article 62 of the Bankruptcy Act

Article 62 of the Bankruptcy Act provides that in the event that the disposition of arrears is taken against the property belonging to the bankrupt estate by the example of the National Tax Collection Act or the collection of national taxes, the declaration of bankruptcy does not obstruct the continuation of the disposition. There are two opinions related to the interpretation of the above

The first view is that, in cases where a disposition on default was rendered prior to the declaration of bankruptcy, the purport of allowing the disposition on default to continue the disposition on default, rather than following the bankruptcy procedure after suspending the disposition on default, is unreasonable. According to this view, the proceeds from the realization of a disposition on default pursuant to the procedures for the disposition on default revert to the bankruptcy estate once the proceeds from the sale of the proceeds from the sale of the proceeds from the disposition on default are attributed to the bankruptcy estate, the secured party who made the disposition on default claims to deliver the proceeds from the disposition on default to the bankruptcy trustee, and as a result, other estate creditors also

The second view is that Article 62 of the Bankruptcy Act explicitly permits the continuation of the procedure for a disposition on default, different from the bankruptcy procedure, with respect to a claim subject to a disposition on default, prior to the declaration of bankruptcy, so that it can be immediately preferentially reimbursed from the proceeds from the realization of a disposition on default with respect to a claim subject to a disposition on default prior to the declaration of bankruptcy. According to this view, even if a tax claim subject to a disposition on default prior to the declaration of bankruptcy is declared bankrupt, a tax claim subject to a disposition on default is directly preferentially reimbursed from the proceeds from the realization

In light of the above, Article 30 of the Enforcement Decree of the National Tax Collection Act and Article 62 of the Bankruptcy Act provide that a tax payer who has issued a disposition on default shall continue to revert the proceeds from realizing the proceeds of the disposition on default to the bankrupt estate by continuing the procedure for the disposition on default at his own expense, and the head of a tax office shall continue the disposition on default even in cases where the delinquent taxpayer is declared bankrupt, the purport of Article 62 of the Bankruptcy Act is to allow a preferential repayment from the proceeds of the disposition on default due to the procedure for the disposition on default. On the other hand, "cases where a disposition on default has been issued" shall be interpreted as limited to cases where the seizure takes effect by the procedure for the disposition on default on the assets belonging to the bankrupt estate prior to the declaration of bankruptcy. Accordingly, it does not constitute "cases where a notice on seizure is sent, registered, or registered even if the delinquent taxpayer has yet to be served," as well as cases where a disposition on default has not yet been registered.

Whether the procedure for realization is applied according to the exercise of the right to separation.

Article 84 of the Bankruptcy Act provides that any person who holds a lien, pledge, mortgage or right to lease on a deposit basis, which exists in the property belonging to the bankrupt estate, shall have the right to separation of the property which is the subject matter thereof, and Article 86 of the Bankruptcy Act provides that the right to separation shall exercise the right to separation without resorting to bankruptcy procedures. In the case where the second view is followed with respect to the interpretation of Article 62 of the Bankruptcy Act, there are four opinions as follows: (a) it is possible to allow the practical distribution of the tax claim by applying the second view in the realization procedure following the declaration of bankruptcy; and (b) it

The first view is that a claim for delivery is not allowed. According to this view, if the secured claim is lower than a taxation claim and the proceeds from realizing real estate are insufficient to satisfy both the secured claim and the taxation claim, the secured party can regard the benefit rather than the debtor's declaration of bankruptcy.

The second view is that permission for a claim for delivery shall be granted to a trustee in bankruptcy who is not a tax authority (the opinion of the auction court of this case). According to this view, when it becomes clear that the bankruptcy estate is insufficient to repay the total amount of the estate claims as prescribed in the main sentence of Article 42(1) of the Bankruptcy Act, the repayment of the estate claims shall be made according to the ratio of the amount of unpaid claims, regardless of the priority prescribed in the law, so it is possible to prevent the secured party from receiving preferential payments than other secured creditors. However, in the case where the secured party is lower than the holder of the right to separate settlement, the claim for delivery shall not be profitable, and in the case where the secured party is higher than the holder of the right to separate settlement than the holder of the right to separate settlement, even if the amount equivalent to the tax claims out of the proceeds of liquidation is incorporated into the bankrupt estate, if there is no possibility that the secured party is able to receive the payment due to the lack of time and expenses, and if the secured party does not make a claim for delivery for such reason, it cannot cause any problem.

In addition, according to this view, when liquidation is conducted through a public auction or a private contract under the National Tax Collection Act in accordance with the disposition on default (see Articles 61 through 84 of the National Tax Collection Act), the taxation right holder may receive a distribution (see Articles 61 through 84 of the National Tax Collection Act), but when a voluntary auction procedure is in progress and is awarded, it is impossible to receive a dividend from the auction court. Therefore, it is determined whether the taxation right holder is entitled to a dividend, depending on the unexpected circumstances as to which procedure is in progress first, and if the taxation right holder is unable to receive a direct dividend from the court of execution, it is difficult to file a lawsuit against the bankruptcy trustee.

The third view is that the claim for the delivery to all tax claims falling under the estate claim and the amount of dividend should be granted to the tax claim holder without going through whether the tax claim holder takes priority over the holder of the right to separate settlement.According to this view, there are problems that recognize the superior status of the tax claim holder higher than the holder of the right to separate settlement than other estate claims.

The fourth view is that only tax claim holders who take priority over the holder of the right to separate settlement and the amount of dividend should be granted to tax claim holders. According to this view, the holder of the right to separate settlement can prevent unjust enrichment by the debtor's declaration of bankruptcy, and the scope of tax claim holders with superior status against other estate claim holders can be reasonably restricted.

In addition, as pointed out earlier, when liquidation is conducted through a public auction or a private contract under the National Tax Collection Act, the taxation right holder may receive a distribution (see Articles 61 through 84 of the National Tax Collection Act). However, as in this case, when a voluntary auction procedure is in progress and is awarded, it is impossible to receive a dividend from the auction court. Thus, the second opinion is resolved that the allocation of the taxation right holder should be decided depending on the contingency of which procedure is in progress.

Unlike the realization procedure following the exercise of the right to separation, a taxation right holder holds an independent compulsory refund right that can continue the realization procedure under the National Tax Collection Act, and once seizure takes effect according to the procedure for disposition on default, in case where other enforcement procedures such as voluntary auction have commenced during the Do, it is based on the realization procedure due to the exercise of the right to separation through a request for delivery, and there is no ground to evaluate it differently. Thus, this court will follow the fourth opinion."

Therefore, the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Lee-soo(Presiding Judge)