[배당이의][공2001.7.1.(133),1334]
In cases where the registration of seizure or the registration of preservation or seizure by the disposition on default has been completed after the entry of the decision on commencing auction as to the immovables, whether the taxation authority may receive dividends only by filing a request for delivery as a separate demand for distribution with the court of auction until the date of the successful bid
In case where the registration of seizure based on the disposition on default or the registration of the preservation and seizure under Article 24 (2) of the National Tax Collection Act has been completed prior to the entry of the decision on commencement of auction as to the immovables, the existence of tax claims and their contents may also be known as the auction court. However, in case where the registration of seizure based on the disposition on default has been completed after the entry of the decision on commencement of auction, as long as the state, which is the taxation right, does not demand a distribution to the auction court, as long as the registration of the seizure based on the disposition on default has been completed after the entry of the decision on commencement of auction, the auction court does not know whether there has been the above tax claims. Thus, unlike the case where the registration of seizure based on the disposition on default was completed before the entry of the decision on commencement of auction, if the registration of
Article 56 of the National Tax Collection Act, Article 605(1) of the Civil Procedure Act
Supreme Court Decision 92Da52733 delivered on March 26, 1993 (Gong1993Sang, 1298), Supreme Court Decision 93Da2210 delivered on September 14, 1993 (Gong1993Ha, 2775), Supreme Court Decision 96Da51585 delivered on February 14, 1997 (Gong197Sang, 769)
Korea
Defendant (Attorney Han-sung, Counsel for defendant-appellant)
Seoul High Court Decision 99Na64348 delivered on April 12, 2000
The judgment below is reversed and the case is remanded to Seoul High Court.
1. On May 4, 1995, the court below found that the registration of transfer of ownership was completed on the ground of the termination of title trust on December 31, 1994. On January 24, 1997, the registration of transfer of ownership (50 million won) was completed on March 15, 197. On March 15, 197, the Industrial Bank of Korea issued a provisional attachment registration (70 million won: the defendant, the amount of claims: 50 million won) to the defendant on the 5th anniversary of the provisional attachment, the Bank of Korea issued a decision to commence the auction of this case on July 9, 1998 to the 5th of 6th of 196th of 5th of 5th of 196th of 196th of 5th 196th 196th 2 of 196th 26th 20 of 196th 20 of 196th 26th 196th 2 of this month.
Furthermore, the court below held that the court below's claim for the delivery of national taxes against the auction court under Article 56 of the National Tax Collection Act can be made only by the auction date, as well as the demand for distribution in the real estate auction procedure under the Civil Procedure Act, but on the premise that if the registration (including the registration of preservation before the determination of national taxes) of the seizure as the procedure for the disposition of national taxes in arrears is completed before the deadline for the request for delivery, the court below should have made the request for delivery without asking whether it was made more than the registration of the decision of commencement of the auction, and completed the preservation of the real estate of this case before the deadline for the successful bid of this case. On the other hand, since the gift tax takes priority over the defendant's claim which is the provisional seizure right holder, even if the plaintiff did not request the delivery of the gift tax by the deadline for the above successful bid, it should have been distributed in preference to the defendant who is the provisional seizure creditor.
2. Where the registration of the seizure by the disposition on default was completed prior to the entry of the decision on commencing auction or the registration of the preservation and seizure under Article 24(2) of the National Tax Collection Act with respect to real estate, the existence of taxation claims and their contents may also be known as an auction court. However, where the registration of the seizure by the disposition on default has been completed after the entry of the decision on commencing auction, as long as the state, which is the taxation right holder, requests a distribution to the auction court, the auction court does not know of whether there exists the above taxation claims. Thus, unlike the case where the registration of the seizure by the disposition on default was completed before the entry of the decision on commencing auction, if the registration of the seizure by the disposition on default has been completed after the entry of the decision on commencing auction, the state, which is the taxation right holder, can receive a distribution only by the auction court until
Nevertheless, unlike the opinion, the court below held that the auction court of this case should have distributed KRW 125,640,552 to the plaintiff who requested the delivery after the time of the demand for distribution, on the premise that the registration of seizure by the disposition of default of national taxes was completed prior to the date of the successful bid, without distinguishing whether it was completed prior to the registration of the decision of commencement of auction, and that the state, the taxation right holder, without making a separate demand for distribution until the date of the successful bid, should have received the distribution of KRW 125,640,52 to the plaintiff who requested the delivery. The ground of appeal pointing this out is justified.
3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.
Justices Shin Shin-chul (Presiding Justice)