[부당이득금청구사건][하집1987(4),122]
Where the mortgaged real estate has been made to a third party, the tax claim against the third party and the relation between the mortgagee and the mortgagee shall prevail.
Article 35 (1) 3 of the Framework Act on National Taxes and Article 18 (1) of the Enforcement Decree of the same Act provide that national taxes imposed on real estate shall give priority to claims secured by the right to collateral security pursuant to Article 35 (1) 3 of the same Act and Article 18 (1) of the same Decree shall be based on the duty to pay taxes on the mortgagee. Since national taxes which can be paid prior to the right to collateral security shall be limited to those imposed on the mortgagee. Since national taxes imposed on the person who takes over the ownership of the mortgaged property after the right to collateral security was established shall be entitled to be paid prior to the right to collateral
Article 35 of the Framework Act on National Taxes, Article 18 of Enforcement Decree of the Framework Act on National Taxes
Supreme Court Decision 71Da2266 delivered on January 31, 1972 (Article 35 (9) 35 of the Framework Act on National Taxes, Article 9964 house 20 ① 31 of the Framework Act on National Taxes) 72Da1125 delivered on August 29, 1972 (Article 35 (10) 35 of the Framework Act on National Taxes, Article 35 (10) 178-267 of the Framework Act on National Taxes)
Korea
Seoul Trust Bank, Inc.
Jeju District Court (87 Gohap151) in the first instance trial
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the plaintiff.
3. A list shall be added at the end of the judgment of the first instance.
The judgment of the first instance shall be revoked.
The defendant shall pay to the plaintiff 125,075,200 won with 5% per annum from July 9, 1986 to the date on which the complaint of this case was served to the defendant, and 25% per annum from the next day to the date on which the complaint of this case was served to the date on which the complaint of this case was served to the defendant.
The costs of lawsuit shall be borne by the defendant in both the first and second trials and a declaration of provisional execution.
(1) Comprehensively taking into account the following facts: Gap evidence 1-1, 2-1, 3-1, 4-1, 5-1, and 5-1 and 2-1 of Gap's evidence 1-2 (written resolution, investigation) without any dispute over the establishment of Gap's National Tax Service 1- 1- 1, 2, 2- 2- 3 (written request for delivery), 30-1, 5-1 and 9-1 of the attached list were owned by non-party 1; the non-party 2 was transferred to the defendant 60-1, 86-19 of the attached list on April 19, 198; the non-party 1 had no ownership transfer registration for the above real estate with 60-1, 600 won for the above real estate on December 18, 1984, which was already owned by the defendant and the non-party 2-1, the non-party 36-196-1 and the non-party 2.
(2) The plaintiff asserts that since the above national tax claim is imposed on the above real estate, it takes precedence over the defendant's claim under Article 35 (1) 3 of the Framework Act on National Taxes and Article 18 (1) of the Enforcement Decree of the same Act, since the defendant did not receive dividends of KRW 125,075,200 in preference to the plaintiff's national tax claim, the defendant should gain profit per share of the same amount and return the same amount to the plaintiff as unjust enrichment. Thus, since the above provisions of the Framework Act on National Taxes and the Enforcement Decree of the same Act purported to be based on the duty to pay the mortgage, the national tax that can be preferentially apportioned to the mortgage shall be limited to the amount imposed on the mortgager, and as in this case, the national tax against the person who acquired the ownership of the mortgaged property (in this case, the non-party 2) after the mortgage was established, even if the mortgage is not related to the pertinent real estate or was established within one year prior to the due date of payment of national taxes, it may not be paid dividends out of the proceeds of the mortgaged.
(3) If so, the plaintiff's claim of this case against the non-party 2 on the premise that the above national tax claim against the non-party 2 can be distributed preferentially to the defendant's above mortgage claim shall be dismissed without any reason. Accordingly, the judgment of the court of first instance is just and the plaintiff's appeal is dismissed as it is without merit, and the costs of appeal are borne by the plaintiff who has lost the plaintiff, and since the judgment of the court of first instance is clearly erroneous by omitting the attached real estate list cited in the reason of the judgment, it shall be added to the end of the judgment of the court of
Judges Yu Tae-tae (Presiding Judge)