과세관청이 국세징수법에 의한 압류해제를 거부한 경우에는 행정소송으로 제기하여야 함[각하]
Where the tax authority refuses to cancel attachment under the National Tax Collection Act, it shall be filed as an administrative litigation.
In this case, when the tax authority applied for the cancellation of seizure to the tax authority in accordance with the National Tax Collection Act, and when the tax authority rejected the application, the plaintiffs can only dispute as an administrative litigation, and it cannot dispute as a civil litigation. Therefore, the decision to dismiss the application as an illegal filing.
2012 Gohap 12981 Demurrer
AA et al.
Republic of Korea 1 other
June 8, 2012
June 29, 2012
1. The plaintiffs' respective lawsuits against the defendant Republic of Korea are dismissed.
2. Defendant BB Co., Ltd. shall be exempt from compulsory execution against the claims listed in the separate sheet around August 11, 201, based on the executory exemplification of the Seoul Central District Court Decision 2008Kahap102658 agreed amount judgment againstCC.
3. Suspension of compulsory execution to be stated in paragraph (2) until this judgment becomes final and conclusive;
4. Of the litigation costs, the part arising between the plaintiffs and the defendant Republic of Korea is borne by the plaintiffs, and the part arising between the plaintiffs and the defendant BB corporation is borne by the defendant BB corporation.
5. Paragraph 3 can be provisionally executed.
Paragraph 2 of the order and September 14, 2009 againstCC Co., Ltd., Korea shall not allow the seizure of the claims listed in the separate sheet.
1. Basic facts
The following facts do not conflict between the plaintiffs and the defendant Republic of Korea, and evidence A 1-1, and
In accordance with Article 150 of the Civil Procedure Act, between the plaintiff and the defendant BB Stock Association (hereinafter referred to as "Defendant BB") and the defendant BB, the defendant BB shall be deemed to have led to the confession under Article 150 of the Civil Procedure Act.
A. Relationship between the plaintiffs andCC
On February 27, 1995, "CC (hereinafter referred to as "CC") was established with the trade name "D SDR AA on March 9, 200," and its trade name was changed to "AA on March 9, 200." On January 4, 2008, the medical device manufacturing and marketing division was physically divided fromCC, and the Plaintiff AAA (hereinafter referred to as "Plaintiff AA") was established, and its trade name was changed to "CC" on the same day.
"(1) The FFmerck Co., Ltd., GGGG, and HHHH (hereinafter referred to as "FFFmerck, etc.") filed a lawsuit against AA (FFmerck, etc. before changing the trade name toCC) and the Plaintiff PHH, and the Seoul Central District Court rendered a judgment dismissing all the claims of FFFFmerckn, etc. in the case of 57616 copyright infringement prohibition, etc. (hereinafter referred to as "(2)", "FFmerck, etc., on January 4, 2008, during the appellate trial, the Plaintiff soup was established, and the trade name of CFFmerck changed toCC, applied for the change of the indication of the above case to CC, and the Seoul Central District Court took over the Plaintiff AFFmerk, etc. as the Intervenor AFFFF k et al. as the Intervenor A20.
(3) On May 14, 2008, the Seoul High Court rendered a judgment ordering the payment of 000 won and damages for delay to the FFFmerdik Co., Ltd. jointly and severally, in the case of copyright infringement prohibition, etc. < Amended by Presidential Decree No. 200687, May 14, 2008>
(4) On June 19, 2008, according to the Seoul High Court’s order to provide security,CC and the instant Plaintiffs deposited KRW 000 with deposit holders, FFmeras, as shown in the separate sheet of claims, and FFmeras, deposited KRW 00 (hereinafter “the instant deposit”), and the Seoul High Court rendered a decision to suspend compulsory execution based on the above provisional execution declaration decision by June 20, 2008, under the Seoul High Court’s order to suspend compulsory execution until the final appeal is rendered.
(5) On December 23, 2010, the Supreme Court rendered a decision to reverse and send back the part against the plaintiffs, including copyright infringement prohibition, etc., and to dismiss appeals such as FFmeras, and the FFmeras, etc., on July 6, 2011, Seoul High Court, which rendered a decision to dismiss appeals such as FFFmeras and additional claims in the case of copyright infringement prohibition, etc. < Amended by Act No. 10088, Dec. 23, 2010; Act No. 11813, Jul. 27, 2011>
(6)CC and the instant Plaintiffs filed an application with the Seoul High Court for the revocation of the instant security against the instant deposit, and the Seoul High Court rendered a decision to revoke the instant security against the instant deposit as of August 31, 2011 under the Seoul High Court Ordinance No. 1230.
C. Seizure, etc. of the Defendants’ claims
(1) At the time of September 14, 2009, on May 31, 2008,CC did not pay the national taxes of KRW 6,000, total including the corporate tax notified at the time limit of May 31, 2008, and thereafter, the head of the tax office affiliated with the defendant Republic of Korea attached on September 14, 2009 the amount of the national taxes until the amount of the national taxes was collected from the defendant Republic of Korea (Seoul Central District Court Deposit Officials) in order to collect the national taxes in arrears ofCC. The notice of the attachment was served to the defendant Republic of Korea (Seoul Central District Court Deposit Officials) who is the third debtor.
(2) On August 11, 2011, the Seoul Central District Court 2009Gahap102658, issued a seizure and collection order against the money up to KRW 000 among the claim for the instant deposit collection against the Defendant against the Republic of Korea, and the above seizure and collection order was served on the Defendant, the third debtor, at that time.
(d) Judgment to confirm the existence of the right to claim deposit recovery.
(1) The Plaintiffs filed a lawsuit to confirm the existence of the right to claim the deposit of this case, asserting that it did not have the right to claim the deposit of this case, since the Plaintiffs, and all of the deposited amount of KRW 000,00.
(2) On December 15, 2011, in the case where the Seoul Central District Court rendered a judgment that the right to claim for recovery of the instant deposit does not exist in the case where the existence of the right to claim for recovery of the instant deposit is confirmed by the Suwon's Office of Deposit 11083, and on the other hand, the said judgment became final and conclusive on January 5, 2012 as an order to dismiss the petition of appeal.
2. Determination as to whether the plaintiffs' respective lawsuits against the defendant Republic of Korea were lawful
(1) If the tax authorities have seized taxpayer's property as part of the disposition on default, but thereafter the cause for cancellation of attachment under each subparagraph of Article 53 (1) of the National Tax Number Act occurs, the head of the tax office must release the attachment, and the taxpayer and the person legally interested in the cancellation of attachment may apply for the cancellation of attachment to the tax authorities at any time unless the cause for cancellation of attachment lies. 3) If the tax authorities have refused the request for cancellation of attachment by the party, as prescribed by the Framework Act on National Taxes, the other party may file an administrative litigation against the disposition of refusal by the tax authorities after the previous trial procedure as prescribed by the Framework Act on National Taxes. Meanwhile, Article 7 of the Administrative Litigation Act provides that the transfer of the property to the competent court more than the dismissal of the case by deeming the violation of the jurisdiction to be unlawful in terms of the party's remedy or litigation economy, and it is desirable for the plaintiff to bring the case into a civil lawsuit without intention or gross negligence, and it is not an illegal or unlawful administrative litigation procedure but an administrative litigation procedure to be dismissed or transferred to the competent court.
(2) In this case, the plaintiffs asserted that the defendant Republic of Korea is the true owner of the right to claim the recovery of the deposit in this case, and in this case, the plaintiffs can file an application for the release of attachment with the tax authority for the reason that the requirements for the release of attachment have been met under the National Tax Collection Act, and if the tax authorities refuse the release of attachment, they can file an objection with the administrative litigation through the pre-trial procedure against the rejection disposition, as provided by the National Tax Collection Act, and as provided by the National Tax Collection Act, the defendant cannot file an objection against the third party as a lawsuit under the Civil Execution Act as provided by the National Tax Collection Act against the above seizure conducted by the Republic of Korea. However, inasmuch as there is no evidence to support the fact that the tax authority rejected the request by the tax authority after the plaintiffs filed an application for the release of attachment against the defendant Republic of Korea, the lawsuit in this case against the defendant Republic of Korea by the plaintiffs is illegal even if it has been filed as an administrative litigation in a situation where there is no disposition subject to the administrative litigation, and it is not illegal.
3. Determination as to the claim against Defendant BB
(1) If a third party's lawsuit is one applicable to the execution of all property rights, and if a seizure and collection order has been issued against a monetary claim, a third party, who is not the execution obligor, has been de facto impaired due to the above seizure, etc. in the exercise of one's own claim as the genuine obligee, the claim belongs to himself/herself and can be asserted to the execution obligee and then the third party may bring a lawsuit against the execution obligee (see Supreme Court Decision 97Da4401 delivered on August 26, 1997). Meanwhile, with regard to an application for the suspension of compulsory execution under a joint name, the court may separately order the respondent to deposit as a joint guarantee without ordering the other party to individually request the collection of the deposit, and if the deposit is made under a joint name, the deposit obligor is not able to respond to the claim, and if the deposit obligor is able to claim the collection of the deposit, the other party's right to claim the collection of the deposit shall still belong to the execution obligee, and if it is able to claim the other party to claim the deposit.
(2) The facts of the instant case, such as the deposit of this case, the decision to revoke the security, and the lawsuit to confirm the existence of the right to claim the deposit of this case are recognized as above, and the facts of the Plaintiffs’ contribution to the deposit of this case are deemed to have been led to the confession by Defendant BB under Article 150 of the Civil Procedure Act, and according to this, it is reasonable to deem that the right to claim the deposit of this case belongs to the Plaintiffs, and, therefore, Defendant BB may not be allowed compulsory execution against the claims listed in the separate sheet around August 11, 201, based on the executory exemplification of the Seoul Central District Court Decision 2008 onCC.
4. Conclusion
If so, the plaintiffs' respective lawsuits against the defendant Republic of Korea are dismissed, and their compulsory execution.
The plaintiffs' claims against the defendant BB against this case are reasonable, and they accept them, and the above compulsory execution shall be suspended until this judgment becomes final and conclusive. It is so decided as per Disposition.