[2] Whether an inheritance tax constitutes a pertinent tax which takes precedence over a claim secured by a mortgage pursuant to Article 35(1)3 of the Framework Act on National Taxes (negative)

[2] A claim secured by a mortgage that is preferentially protected on the national tax is interpreted to be based on the duty to pay taxes to the mortgagee on the basis of the relationship between the mortgagee and the mortgagee at the time of the establishment of the mortgage at the time of the original mortgage. Therefore, in the event that the mortgagee died while there is no tax in arrears to be collected prior to the secured claim, the inheritance tax, which is a national tax imposed on the inheritor, may not be collected prior to the relevant tax. This legal principle applies not only to a case where a national tax is collected from the proceeds of sale of the property itself, which is the object of the mortgage, but also to a case where the property is expropriated and the compensation for its expropriation is deposited, which

1. On the first ground for appeal

The purport of the latter part of Article 342 of the Civil Act, which applies mutatis mutandis to mortgages pursuant to Article 370 of the Civil Act, is that "a mortgagee must seize money or other things to be received by the mortgagee in order to exercise his right of subrogation before the payment or delivery of the money or other things to be received by the mortgagee," is to maintain the specific nature of the money or other things which are the object of subrogation and not inflict losses on the third party (see Supreme Court Decision 94Da25728 delivered on November 22, 1994), so long as the money or other things which are the modified object of mortgage have already been seized by a third party, the mortgagee may exercise his right of subrogation without being seized. The decision of the court below to the same purport is justifiable, and there is no error of misapprehending the legal principles as to subrogation. The ground of appeal on this point is not acceptable.

2. On the second ground for appeal

According to the main text of Article 35(1), main text of Article 35(1), Article 35(3), and Article 35(2)3(b) of the Framework Act on National Taxes, national taxes, additional dues, or expenses for disposition on default shall, in principle, be collected in preference to other public imposts or other claims. However, in the case of taxes for which the Government determines the tax base and amount of tax, if national taxes or additional dues are collected from the proceeds of the sale of property for which a mortgage is proved before the date of the delivery of the notice of tax payment, the claims secured by the mortgage shall not be given priority to the claims secured by the mortgage. However, even if a tax payment notice is issued after the date of the establishment of the mortgage, the claims secured by the mortgage shall be construed as having been based on the mortgagee's liability to pay taxes, which is the first priority to the claims at the time of the establishment of the mortgage. Thus, the court below's determination on the above legal principle cannot be accepted by misapprehending the legal principle as to the property under which the heir died before the secured claim is collected.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)