[배당이의][하집1995-1, 212]
Whether the development charges prescribed by the Restitution of Development Gains Act are preferentially distributed in an auction procedure.
The National Tax Collection Act may apply mutatis mutandis to the collection procedure under Article 19 of the Restitution of Development Gains Act, but there is no provision that the collection order may be regarded as falling under the public charges or general claims under Article 2 subparagraph 8 of the Framework Act on National Taxes, or that it may be collected in preference to other mortgage claims corresponding thereto. Therefore, it is impossible to receive dividends in preference to mortgage claims secured by the right to collateral in the auction procedure.
Article 19 of the Restitution of Development Gains Act, Articles 2 and 35 (1) of the Framework Act on National Taxes, Article 31 (1) and (2) of the Local Tax Act
[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant-appellee-appellant-appellant-appellee-appellant-appellee-appellant-Appellee-appellant-Appellee
Pung National Construction Co., Ltd. (Attorney Kim Tae-hee, Counsel for the plaintiff-appellant)
Appellant (Law Firm Chungcheong Law Office, Attorneys Kim Tae-young et al., Counsel for the defendant-appellant)
1. Of the distribution schedule prepared on September 16, 1994, the court’s deletion of KRW 162,422,560 against the plaintiff in regard to the auction of real estate (No. 94 2520) in this court’s 94 knife and 2520, 348, 904, 720 won, and 186, 482, and 160 won of the amount of dividends against the defendant, shall be corrected respectively.
2. The costs of lawsuit shall be borne by the defendant.
The same shall apply to the order.
1. The following facts can be acknowledged in light of the whole purport of the pleading in each of the statements as Gap evidence 1, 2, 3-1 to 53, 1-1 to 3, and 1-3:
A. On March 2, 1994, the Plaintiff entered into a collective security agreement with the non-party non-party non-party non-party company (hereinafter referred to as the "non-party company") on the establishment of a collective security right with a maximum debt amount of KRW 450,00,00,00 for the fourth floor of steel-frame and the roof of a single-story steel-frame assembly style and five dormitories (hereinafter referred to as the "building of this case") on April, 194, including the 54-11 of Taesung-ri, Masung-ri, YU-ri, YU-ri, YU-ri, YU-ri, YU-ri, YU-ri, YU-ri, YU-ri, YU-ri, and YU-ri.
B. The Korea-Japan Bank Co., Ltd. (hereinafter “Non-party bank”) is the mortgagee who completed the registration of creation of a neighboring mortgage on the 3rd of the same month with respect to the instant building, and other real estate owned by the non-party company, including the forest and fields, which completed the registration of creation of a neighboring mortgage No. 1 with respect to other real estate owned by the non-party company.
C. As between April 30, 1993 and February 28, 1994, the Defendant imposed development charges of KRW 186,482,160 on the non-party company on June 29, 194, in order to recover the development gains acquired by implementing the factory site development project in the aggregate of 17,96m2 and 11 lots of land inside the river of Chungcheongnam-gun, Chungcheongnam-do, Chungcheongnam-do, 271-2 and 11.
D. On March 7, 1994, in order to collect the principal and interest leased to the non-party company, the non-party bank applied for voluntary auction on several real estate including the building in this case, and on August 29, 1994, the above auction is being conducted, the defendant requested this court to deliver 188, 482, 160 won in total of the development charges in arrears and the administrative fines resulting therefrom.
E. In the case of voluntary auction on the orders entered in the proceedings with respect to the building, etc. of this case upon the above request by the non-party bank, this court held that the defendant's development charges claim against the non-party company takes precedence over the plaintiff's above claims against the non-party company and the above claims against the non-party bank (However, the court determined that the non-party company did not take precedence over the plaintiff's above claims under the above development charges, which were imposed by the non-party company's neglect of payment of the above development charges, the total amount of KRW 186,482,160, and KRW 658,326,582, and KRW 200,000 for the non-party bank as part of the above claims, and the remaining amount of KRW 17,223,590 after deducting the execution expenses from KRW 17,223,590, Sep. 16, 199.
F. On the date of the above distribution, the Plaintiff appeared in the distribution court, stated that there was an objection against the dividend amount to the Defendant, and filed the instant lawsuit.
2. Therefore, Article 19 of the Restitution of Development Gains Act provides that if a person liable for payment of development charges fails to fully pay the development charges and additional dues by the designated time limit after receiving a demand notice, the Minister of Construction and Transportation may collect them in the same manner as delinquent national taxes are collected. However, there is no provision on the collection procedure of development charges in the above Act. In addition, it is not applicable to Article 2 of the National Tax Collection Act and Article 35 (1) of the Framework Act on National Taxes or Article 31 (2) of the Local Tax Act. Article 35 (1) of the Framework Act on National Taxes provides that "national taxes, additional dues, or disposition fees for arrears shall be collected in preference to other public charges or other claims." Article 2 subparagraph 1 of the same Act provides that "The kinds of national taxes are listed, but the development charges under the Restitution of Development Gains Act shall not be prescribed as national taxes, and it shall not be prescribed in the Restitution of Development Gains Act or Article 35 (1) of the Local Tax Act prior to the collection of additional charges or disposition fees for arrears.
3. Therefore, the above development charges against the non-party company can be deemed as falling under public charges or general claims under Article 2 subparag. 8 of the Framework Act on National Taxes, but it cannot be distributed preferentially to the plaintiff's mortgage claims secured by the right to collateral security against the building of this case. Thus, the distribution court's decision otherwise determined and it is unlawful to prepare a distribution schedule that distributes the defendant's development charges against the non-party company to the non-party company prior to the plaintiff's mortgage claims against the non-party company. Accordingly, it shall be deemed unlawful to prepare a distribution schedule that distributes the defendant's development charges against the non-party company to the non-party company in preference to the plaintiff's mortgage claims. Ultimately, the amount equivalent to the sale price of the building of this case, out
4. Thus, the plaintiff's claim of this case seeking to delete 186, 482, 160 won which was preferentially distributed to the defendant among the distribution schedule of this case and to distribute it to the plaintiff is legitimate, and it is so decided as per Disposition.
Judges Cho Jong-jin (Presiding Judge)