세법상 충당제도를 통한 국세우선의 원칙[국패]
Principle of National Tax Priority through the appropriation system under tax law
The principle of priority of national taxes in the Framework Act on National Taxes is that national taxes shall take precedence over general claims when national taxes are collected through procedures for distributing dividends, such as compulsory execution, auction or bankruptcy, and that it is not applied to cases where national taxes are collected through the appropriation system under tax law, not through the distribution procedure
Article 51 (Appropriation and Refund of National Tax Refund)
Article 493 of the Civil Act: Method and Effect of Set-off
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
1. As to the misapprehension of legal principles as to the appropriation of national tax refund
If a refund of national tax is appropriated under Article 51(2) of the Framework Act on National Taxes, a refund obligation and a tax claim are similar to a set-off under the Civil Act in that it ceases to exist on an equal basis, but the requirements, procedures, methods and effects of appropriation are determined as prescribed by tax-related Acts. Unless the provisions of Article 493(2) of the Civil Act on the retroactive effect of set-off are provided, the effect of appropriation that is returned to the general principles only takes place in the future from the date on which such act was committed, and thus, the obligation to return a refund cannot be said to be extinguished retroactively to the payment period of national tax appropriated in the event a refund is appropriated (see Supreme Court Decision 87Meu3223, May 23,
Upon examining the records in light of the above legal principles, even if the Defendant’s corporate tax claim on ○○ Development, appropriated by the instant national tax refund, and the claim on the first term portion of the corporate tax claim on 2004 and the value-added tax claim on 2005, were incurred before the seizure of the national tax refund claims, the Defendant cannot set up against the Plaintiff, who is the execution creditor, unless the appropriation in this case was made after the seizure and collection order by the Plaintiff. In this regard, the lower court’s rejection of the Defendant’s assertion on this portion is justifiable, and there is no error of law by misapprehending the legal principles as to the appropriation of the national
As cited in the grounds of appeal, the Supreme Court precedents do not have to be invoked in this case due to different cases.
2. The court below's incomplete hearing on the effect of partial execution deposit
Article 248(1) of the Civil Execution Act provides that the amount to be deposited by a third party obligor with respect to monetary claims related to attachment is the total amount of obligation. Examining the records in light of these legal principles, the Plaintiff is issued a seizure and collection order on April 12, 2005, after the lower court rendered a provisional attachment decision by the Co-Litigation Intervenor ○○○○○○ Company with respect to the national tax refund claim of this case. On July 21, 2005, the Defendant deposited KRW 123,893,450 out of the national tax refund of this case with the Seoul Central District Court ○○○○○○○○○ in 2005, without designating the recipient on the ground of the deposit for execution under Article 248(1) of the Civil Execution Act. If the facts are the same, barring any special circumstance, it cannot be recognized that the Defendant made a provisional attachment deposit of KRW 123,893,450, which is merely a part of the entire amount of obligation.
On the other hand, when the plaintiff or the third debtor, a collection creditor, deposited KRW 382,55,616 in the future and the new distribution procedure commences, the plaintiff can participate only in the new distribution procedure by taking part in the existing distribution procedure on KRW 123,893,450, which was partially executed by the plaintiff, and the remaining amount after deducting the dividend amount, which was paid by the plaintiff, as the amount of credit, and thus, it is anticipated that the amount in excess of the plaintiff's principal of the claim can not be claimed double. On the other hand, the defendant is expected to have a high possibility of receiving dividends in accordance with the principle of national tax priority by participating in the new distribution procedure. Therefore, even if the repayment of KRW 123,893,450, which was partially executed, is not recognized, and the defendant again bears the obligation to collect all of KRW 382,55,616.
In the same purport, the court below's rejection of the defendant's assertion as to this part is not acceptable, and there is no error of law such as incomplete deliberation as claimed in the grounds of appeal.
3. Conclusion
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.