[부가가치세부과처분취소][집50(1)특,660; 공2002.6.15.(156),1277]
[1] Whether a mortgagee has the right to separation under the Composition Act (affirmative)
[2] The exercise of security interest in a composition procedure and the time of supply for goods
[1] Article 44 of the Composition Act provides that a person who has the right to exercise the right to separation in the event of bankruptcy shall be deemed the holder of the right to separate settlement, and Article 84 of the Bankruptcy Act provides that a person who has the right to exercise the right to separate settlement in the event of bankruptcy shall have the right to exercise the right to separate settlement in the case of the property subject to the right to separate settlement, and Article 84 of the Bankruptcy Act provides that the person who has the right to retention, the right to pledge, the mortgage or the right to lease shall have the right to separate settlement in the case of the property subject
[2] A person who is entitled to exercise the right to separation under the Composition Act may exercise the right to separation regardless of whether he/she has reported his/her claims to composition claims in composition procedures, and it is not restricted by the terms of composition authorized in the exercise of the right to separation. Thus, when the mortgagee has completed the settlement procedure by exercising the right to separation, the mortgagee's ownership is in excess of the recommendation of the security regardless of the terms of composition authorized, and the goods are supplied under the Value-Added Tax Act at that time.
[1] Article 44 of the Composition Act, Article 84 of the Bankruptcy Act / [2] Articles 1(1) and (2), 6(1) and (6) of the former Value-Added Tax Act (amended by Act No. 5585 of Dec. 28, 1998), Article 17(1) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 16661 of Dec. 31, 199), Article 44 of the Composition Act, Article 84 of the Bankruptcy Act
Busan Co., Ltd. (Law Firm Pacific, Attorneys Kim Man-man et al., Counsel for the defendant-appellant)
The director of the tax office
Seoul High Court Decision 2000Nu8457 delivered on October 11, 2000
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
1. Article 44 of the Composition Act provides that a person who has the right to exercise the right to separation in the event of bankruptcy shall be deemed the holder of the right to separate settlement, and Article 84 of the Bankruptcy Act provides that the person who has the right to retention, pledge, mortgage or chonsegwon shall have the right to separation concerning the property which is the object of the right to separate settlement. Therefore, a mortgagee shall be deemed the person who has the right to exercise the right to separation in the Composition Act as well as the person who has the right to exercise the right to separate settlement in the sense that the person is not a person with the right to separation
On the other hand, a person who is entitled to exercise the right to separation under the Composition Act may exercise the right to separation regardless of whether he/she has reported his/her claims as composition claims in composition procedures, and it is not restricted by the terms of composition authorized in the exercise of the right to separation. Thus, when a mortgagee has completed the settlement procedure by exercising the right to separation, the right to separation exceeds the recommended ownership regardless of the terms of composition authorized, and the supply of goods is made in accordance with the Value-Added Tax Act.
In the same purport, the court below is just in holding that even if the maturity period of the composition bond has been postponed by the decision of approval of composition, it is not bound by the conditions of composition concerning the postponement of the maturity period, and thus, it constitutes a case where the goods have been supplied during the second taxable period of 1998, since the notification of the execution of the collateral security right to the instant building on September 16, 1998 was not bound by the conditions of composition concerning the postponement of the maturity period, and there is no error of law such as misunderstanding of legal principles as argued in the Grounds for Appeal. Therefore, this part of the
2. Furthermore, the court below is just in holding that the Plaintiff cannot be deemed to have withdrawn the declaration of intention in accordance with the notice of exercise of the instant security right solely on the ground that the Plaintiff paid taxes and public charges on the instant building, etc., and the Plaintiff did not claim the rent therefor, and the ownership of the instant building cannot be deemed to remain in the Plaintiff merely because the Plaintiff did not explicitly withdraw the declaration of intent to liquidate through the notice of exercise of the security right and the Plaintiff did not fully pay rent for the possession and use of the instant building, etc. to the Plaintiff. Accordingly, the ground of appeal on this part is not accepted.
3. Therefore, the appeal shall be dismissed, and the costs of the lawsuit shall be borne and so decided as per Disposition.
Justices Zwon (Presiding Justice)