Article 35 (2) of the Framework Act on National Taxes

The costs of appeal are assessed against the Plaintiff.

Daejeon District Court Decision 2007Na14726 (Law No. 22, 2008)

2. The costs of appeal are assessed against the Plaintiffs.

A. The non-party ○○ Construction Co., Ltd. (hereinafter referred to as “○○ Construction”) constructed ○○ Village Apartment (hereinafter referred to as “the apartment of this case”) on the land outside ○○○○-1 and two parcels in Chungcheongnam-nam Budget-gun, Chungcheongnam-do, and the non-party ○○ apartment was lent approximately one billion won as the new apartment of this case to ○○ Construction from December 30, 1998 to April 1, 2001.

B. On April 2001, 001, ○○ Construction received a loan from each apartment household of this case as collateral for intermediate payment, and prepared a false sales contract with respect to the total of 29 households, including each side company of the real estate listed in the separate sheet (hereinafter “each real estate of this case”) after introducing the name holder of each unit of the apartment house of this case from ○○○○, and received a loan from the former Housing Bank (former National Bank).

C. Since ○○ Construction failed to pay interest on the above loan and caused the former Housing Bank to demand repayment to the above nominal lender, the number of ○○○○, which introduced the above nominal lender, concluded a pre-sale agreement on October 4, 2001 with respect to the above 29 apartment units (in calculating the price of apartment units with exclusive use area of 84.7mm2 and its exclusive use area of 89,856,30m2, hereinafter referred to as “instant pre-sale agreement”) between ○○ Construction and the above ○○ Construction, in order to solve the problem of name lending, and to receive loans for ○○○ Construction, the above pre-sale agreement was made on October 4, 2001.

D. Accordingly, ○○ Construction completed the registration of ownership preservation on October 6, 2001 for each of the instant real estates, and completed the provisional registration of ownership transfer claim (hereinafter “provisional registration of this case”) in the future on the same day due to the trade reservation of this case.

E. On March 16, 2002, the Defendant did not pay national taxes as shown in the Attachment No. 2, and completed the attachment registration (hereinafter referred to as the “registration of this case”) on March 20, 2002 by the Daejeon District Court Budget Office No. 5319, which received on March 20, 2002.

F. On December 20, 2001, Plaintiff Kim Jong-soo entered into a contract with Lee Jong-soo to acquire the right to claim for ownership transfer registration of this number of real estate No. 1 listed in the separate sheet for KRW 89,856,300 from the price. With regard to the payment of the price, the above Plaintiff acquired the loan obligation to the old Housing Bank of ○○○ Construction and paid the remainder to Lee Il-soo. On July 16, 2002, the Daejeon District Court’s Office of Budget Acceptance No. 14437 of the provisional registration of this case was completed, and on the same day, the registration of ownership transfer was completed as the above registry office No. 14438.

G. On June 15, 2002, the Plaintiff Seol-si entered into a contract to acquire KRW 89,856,300 with respect to the real estate No. 2 stated in the separate sheet with Lee Jong-soo on June 15, 2002, by transfer of the right to claim for ownership transfer registration of 00 won with respect to the real estate No. 2 stated in the separate sheet. With respect to the payment of the price, the said Plaintiff acquired the obligation to lend to the old Housing Bank and paid the remainder to the ○○○○○○. On June 20, 2002, the Plaintiff completed the additional registration prior to the provisional registration under the Daejeon District Court’s Budget Receipt No. 12453, Jun. 20, 20

H. On July 19, 2002, the Plaintiff Jeong-hee entered into a contract to acquire the ownership transfer registration claim of this number of real estate No. 3 as indicated in the separate sheet between Lee Jong-hee and Lee Jong-soo, with a price of KRW 89,856,300. With respect to the payment of the price, the said Plaintiff acquired the loan obligation to the old Housing Bank of ○○○ Construction and paid the remainder to Lee Jong-soo. On August 1, 2002, the Daejeon District Court’s Budget Registry receipt of the Budget Office of the Daejeon District Court completed the additional registration prior to the provisional registration of this case as of the same day, and completed the registration of ownership transfer as of the above registry No. 15769.

I. The plaintiffs acquired a claim for indemnity against ○○ Construction by subrogation for their obligation to ○○○○ Construction’s old Housing Bank and its debt to ○○○○○ Construction. As a security, the plaintiffs’ claim for indemnity against ○○ Construction would have been completed the registration of ownership transfer for each of the instant real estate. The plaintiffs asserted that the amount of claim for indemnity against ○○ Construction would be KRW 89,856,30,000, the sale price of each of the instant real estate, and that on April 8, 2008, the market price of 115,00,000,000 as of April 8, 2008, and the plaintiffs’ claim for ○○ Construction was calculated with an interest rate of KRW 89,856,300, which is the sale price, and the amount calculated with an interest rate of KRW 5% per annum under the Civil Act from the date of the above notification from the date of the registration of ownership transfer to the above notification to the above ○○ Construction.

[Ground of recognition] The facts without dispute, Gap evidence 1 to 3, Gap evidence 3 through 6 (including each number), Eul evidence to 1 to 4, Eul evidence to 6 to 15, the testimony of the witness Kim Il-hwan in the first instance court, and the purport of the whole pleadings

2. The plaintiffs' assertion

A. The provisional registration of this case is only a provisional registration for the preservation of priority, but not a provisional registration for the security of claims under Article 35(2) of the Framework Act on National Taxes, and the Plaintiffs, based on the provisional registration of this case having priority preservation effect, have completed the principal registration and thus the registration of this case becomes null and void

B. Even if the provisional registration of this case is the provisional registration for securing the claim under Article 35 (2) of the Framework Act on National Taxes, the registration of this case was completed after the provisional registration of this case, and the claims secured by the plaintiffs are higher than the defendant's national tax claims. Thus, even if the defendants sold each of the real estate of this case, the amount of the claims secured by the plaintiffs, which take precedence over the defendant's national tax claims, exceeds the land price, and the seizure becomes unnecessary due to other reasons," so the head of a tax office must cancel the seizure. Thus, the registration of this case should be cancelled after the seizure of this case is invalidated, and since the plaintiffs acquired ownership of each of the real estate by exercising the security right through liquidation procedures under the Provisional Registration Security Act, the registration of this case shall be invalidated and cancelled.

3. Judgment on the plaintiffs' assertion

A. Determination on the first argument of the plaintiffs

According to the above facts, this case's sales contract was concluded to exempt loan liabilities for ○○ Construction, and it was merely an acquisition of a loan to 29 households of the above apartment complex. Thus, the provisional registration of this case was completed to secure loan obligations for ○○ Construction. Thus, the plaintiff's first assertion that the provisional registration of this case is a provisional registration with priority preservation effect is without merit.

B. Judgment on the second argument by the plaintiffs

(1) If a provisional registration made prior to the State’s provisional registration due to delinquency in payment of national taxes is not a provisional registration based on a trade reservation, but a provisional registration based on a provisional registration for security was made thereafter, the State’s provisional registration for seizure and seizure is still valid. Even if the provisional registration for security was made prior to the statutory due date of national taxes in arrears, even if the provisional registration for security was made prior to the due date of national taxes in arrears, the provisional registration for seizure made after the provisional registration for security is still effective until the security right is exercised. Moreover, even if the provisional registration for security was executed based on the provisional registration for security, the original effective seizure disposition is not naturally invalidated and thus the registration for seizure is not invalidated (see Supreme Court Decision 2000Da63677,

(2) Pursuant to Article 35(1)3 and 35(2) of the Framework Act on National Taxes, the priority among secured claims, such as national taxes and mortgages and provisional registration security, shall be determined by the statutory due date of national taxes and after the date of registration for establishment (excluding the pertinent taxes), and the statement in the evidence No. B. 1, the amount of national tax claims against the Defendant’s ○○ Construction prior to the statutory due date, among national tax claims against the instant provisional registration, may be recognized as having been KRW 131,421,160 (attached Form 2 1 through 5, 7, 8) except the value-added tax attributed to the second due date of 201, as shown in attached Table 2.

Therefore, the plaintiffs' assertion that the registration of seizure of this case constitutes "when the seizure is no longer needed due to other reasons" under Article 53 (1) 1 of the National Tax Collection Act is a whole assertion that the plaintiffs' secured claims take priority over the defendant's national tax claims. Therefore, it is without merit to review further.

In addition, even if the plaintiffs completed all the liquidation procedures for the exercise of security right after completing the registration of ownership transfer for each real estate of this case, as long as the defendant's national tax claim takes precedence over the plaintiffs' secured debt, the seizure disposition of this case is null and void as a matter of course and the registration of seizure is null

3. Conclusion

Therefore, all of the plaintiffs' claims in this case are dismissed without merit, and the judgment of the court of first instance is just in this conclusion, and all of the plaintiffs' appeals are dismissed as it is without merit. It is so decided as per Disposition.