[부당이득금][집39(3)민,382;공1991.11.15.(908),2589]
Whether the local tax, which is the relevant tax, can be collected in preference to the mortgage-backed claims on the ground that the relevant tax is the corresponding tax under the proviso of Article 31 (2) 3 of the Local Tax Act for the transferee of the mortgaged real estate (negative)
A mortgage claim that is preferentially protected on local taxes pursuant to the provisions of Article 31(2)3 of the Local Tax Act shall be interpreted as the purport of based on a tax liability of the mortgagee on the basis of the relationship with the mortgagee at the time when the mortgage was created. A mortgage claim excluded from such priority collection of local taxes, etc. shall not be deemed as a loss of the eligibility for protection under the current law without any special provision, even if the mortgagee transferred the mortgaged real estate to a third party and the transferee was delinquent in local taxes. Therefore, if the mortgaged real estate is transferred from the mortgager to a third party and there is no tax delinquency that should be collected prior to the above mortgagee, the local tax imposed on the said third party shall not be collected first.
Article 31 (2) 3 of the Local Tax Act
Supreme Court Decision 71Da2266 delivered on January 31, 1972 (No. 20(1)) 72Da1115 delivered on August 29, 1972, 74Da696 delivered on October 22, 1974 (Gong1989, 2546)
Attorney Kim Young-chul, Counsel for the defendant-appellant
Attorney Gyeong-sik, Counsel for the defendant-appellant
Seoul High Court Decision 87Na3914 delivered on February 15, 1988
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
Article 31 (2) 3 of the Local Tax Act provides that "Where local taxes and additional dues are collected from the amount obtained by selling property which is the object of the right of lease on a deposit basis, pledge or mortgage established one year from the due date of local taxes and additional dues, the claims secured by the right of lease on a deposit basis, pledge or mortgage shall be excluded from the local taxes and additional dues imposed on the property concerned."
This provision aims to harmonize with the judicial request to guarantee the safety of transactions centered on the security right attached to the public notice and the public interest request to secure the compulsory performance of tax claims. Accordingly, in particular, the mortgage-backed claims that are protected with respect to local taxes pursuant to this provision need to have been established one year prior to the due date for local tax payment prescribed in the above provision, and it is interpreted that the so-called tax imposed on the object shall take precedence over the claims secured with the mortgage established one year prior to the due date for payment in relation to the mortgagee under the proviso of subparagraph 3 above, and the so-called tax which is subject to the object shall take precedence over the claims secured with the mortgage established one year prior to the due date for payment in relation to the mortgagee under the above-mentioned proviso of subparagraph 3. Even if the pledger transferred the mortgaged real estate to a third party and the transferee was not delinquent in local taxes, the eligibility for protection under the current law without special provisions shall not be lost.
Therefore, as determined by the court below, the local tax imposed on the above non-party company shall not be collected in preference to the above non-party company, in the absence of any tax in preference to the mortgage, which was transferred from the non-party 1, the mortgager, to the non-party 1, who was the non-party 1, who was the mortgager. Therefore, the court below is just in holding that the defendant's preferential allocation of the non-party company's delinquent local tax among the proceeds from the public sale of the real estate of this case to the plaintiff who was the mortgagee shall be the non-party 1, and there is no
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.
Justices Kim Yong-sung (Presiding Justice)