(영문) 서울고법 1986. 1. 23. 선고 85구512 제3특별부판결 : 상고[제2차납세의무자지정및세액납부통지처분취소청구사건][하집1986(1),512]
Where a principal registration has been made on the basis of a provisional registration for the purpose of security, the effect of designation of a person liable for physical duty payment and disposition, etc. reported as property transferred
If a provisional registration has been made to secure a claim for ownership transfer registration on the real estate owned by the debtor, but the principal registration on the basis of the provisional registration was made to have the debtor repaid the above obligation, the real estate is already provided as the object of security at the time of establishing the above provisional registration, and it cannot be deemed as a security for transfer, which takes the form of security for obligation, and thereafter, the principal registration on the basis of the above provisional registration is only one phase for exercising the security right, and it does not constitute a real estate provided as a security for transfer under Article 42 of the Framework Act on National Taxes only in this case. Thus, the above principal registration authority is unlawful, such as a physical taxpayer designation disposition on the premise that it is a mortgagee under Article 42
Article 42 of the Framework Act on National Taxes
83Nu88 delivered on September 13, 1983 (at least 83Nu88 delivered on September 13, 1983, the security for transfer of civil law, provisional registration security (g) 644 pages 31 p.m. 29 No. 1499)
Plaintiff
The director of the tax office
The imposition of value-added tax of KRW 21,337,96 on November 19, 1984 and the imposition of KRW 27,822,916 on the aggregate of KRW 6,484,920, and the attachment of real estate recorded in the attached list shall be revoked, respectively.
Litigation costs shall be borne by the defendant.
The same shall apply to the order.
(1) If Gap evidence Nos. 1-2, Gap evidence Nos. 1-2, 3-2, Gap evidence Nos. 4-1, 5-1, 6-2, and Gap evidence Nos. 2 without dispute, the non-party failed to pay the value-added tax of 25,949, 140, 176, 170 won for the above additional dues No. 5,979, 170, 300 won for the above additional dues Nos. 1, 369, 400, 300 won for the above additional dues Nos. 1, 1969, 300 won for the above additional dues No. 497, 198, 300 won for the above additional dues No. 1, 56395 for the plaintiff's real property owned by the non-party No. 497, Sep. 19, 1984; the defendant received the provisional registration of this case No. 16597, 394.
(2) Therefore, if the real estate of this case is considered to fall under the property transferred for security under Article 42 of the Framework Act on National Taxes, Eul evidence Nos. 3 and Eul evidence Nos. 5 without any dispute over its establishment, and the purport of the pleading is all the whole purport of the pleading, the plaintiff lent 5,600,000 won to the non-party on September 6, 1980 with the due date for payment of the non-party on December 6, 1980, and the provisional registration of preservation of the right to claim ownership transfer registration was made on September 19 of the same year as seen above, but the above provisional registration was made on March 8, 1984 on the property owned by the non-party on which the above obligation has not been repaid. Thus, the real estate recorded in the separate statement of this case is already provided for the purpose of establishing the above provisional registration, and thus, it cannot be deemed that the transfer of ownership was made at the time of the above provisional registration and the transfer of ownership cannot be deemed to have been made at the real property of this case No. 3848.
(3) If so, the plaintiff's claim of this case seeking its revocation on the ground as above is justified, and the costs of lawsuit are assessed against the losing defendant. It is so decided as per Disposition.
Judges Kim Jong-chul (Presiding Judge)