2. The costs of the lawsuit are assessed against the defendant.

A. On April 20, 2010, in order to secure the claim against Gyeongnam Textiles Industrial Co., Ltd. (hereinafter “Seoul Textiles”), the Plaintiff completed the registration of the establishment of a mortgage (hereinafter “registration of the establishment of a mortgage of this case”) with the maximum debt amount as joint collateral, and the debtor, with the registration of the establishment of a mortgage of the non-party 1, 2, 3, 4, 5, 6, and 7 (hereinafter “taxpayer, etc.”) on April 20, 2010.

B. The Plaintiff filed an application for a voluntary auction of real estate on the instant real estate with the Busan District Court ( Busan District Court No. 2009Ma225000, May 21, 2009, hereinafter “instant auction”) with the Busan District Court on the instant real estate based on the instant collateral security, in which Gyeongnam Textiles did not repay its debt. The said court rendered a voluntary decision to commence the auction (hereinafter “instant auction”).

C. Meanwhile, on August 11, 2009, prior to the date of demanding a distribution, the Defendant seized part of the delinquent taxes by the delinquent taxpayer, etc. prior to the commencement of the auction. On August 24, 2009, prior to the date of demanding a distribution, the Defendant requested a delivery of KRW 707,133,590 (excluding acquisition tax, etc. unrelated to dividends) by adding KRW 69,967,350 to the date of distribution of the above property tax, etc. on May 10, 2010 (hereinafter “instant increased tax”) and KRW 335,071,540, including property tax and additional dues (excluding the portion not related to the items of taxation and dividend claimed at the time of requesting a delivery) and KRW 405,038,89,1271,1740, including the property tax and additional dues, and KRW 18,171,1740 (hereinafter “property tax of this case”).

D. On June 1, 2010, the above court distributed KRW 1,112,172,480 to the Defendant, who was the date of distribution, and KRW 3,979,192,837, respectively, in the order of first priority, and 4,5 to the Plaintiff.

E. The Plaintiff appeared on the aforementioned date of distribution, and raised an objection against KRW 405,038,890 out of the amount of distribution against the Defendant, and thereafter filed the instant lawsuit on June 8, 2010.

[Ground of recognition] Facts without dispute, Gap 1 to 4 evidence, Eul 1 and 2 evidence, and the purport prior to pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

In the auction of this case, the Defendant requested the delivery of KRW 707,133,590 as the corresponding tax amount until the final date for the demand for distribution, but thereafter, the increased increased tax amount of KRW 335,071,540, and KRW 69,967,350, which occurred after the final date for the demand for distribution, was additionally requested to deliver KRW 405,038,890, which was unlawful for the auction of this case. Accordingly, the Defendant’s distribution of KRW 707,13,590 against the Plaintiff shall be corrected to KRW 4,384,231,727.

B. Determination

(1) A claim to grant increased amount resulting after the end of the period for demand for distribution

○ Article 27(2) of the Local Tax Act provides that “If delinquent local taxes are not paid, an additional dues equivalent to 12/1,000 of delinquent local taxes (hereinafter referred to as “additional dues”) shall be collected every month after the lapse of each month from the date on which the time limit for payment expires in addition to the additional dues as provided for in paragraph (1). In this case, the period for which additional dues or aggravated additional dues are additionally collected shall not exceed 60 months, and the statutory due date for additional dues or increased additional dues shall not exceed the principal tax, but the additional dues shall be determined on the basis of the additional dues or increased additional dues itself, after the lapse of the due date notified in accordance with the procedure as provided for in Article 27(3) of the Local Tax Act, the date on which the liability for tax payment becomes fixed, and the increased additional dues shall be determined on the date on which

As a result of the delay of tax payment, the additional dues and increased additional dues are the kind of incidental tax, which has the character of damages for delay (interest for delay) naturally created pursuant to the provisions of tax law, and if the tax amount in arrears is not paid within the deadline without the procedure for establishing additional dues and increased additional dues by the person who has the authority to impose taxes, then the amount of such taxes naturally accrue pursuant to the provisions of law and are determined accordingly. Therefore, as in this case, as long as the defendant requested the delivery of the property tax on the land and buildings in arrears before the end of the period for demanding distribution and each additional dues, there is room to interpret that if the delinquent taxpayer requested the delivery again by expanding the increased additional dues created up to the date of distribution

However, this cannot be said to be a reasonable interpretation for the following reasons.

In other words, (1) The increased additional charges do not merely have the nature of damages for delay, but may be deemed to be monetary punishment having the character of sanctions against taxpayers in arrears. (2) In light of the provisions of Article 31(2) of the Local Tax Act, the above provision provides that the increased additional charges shall follow before and after the statutory due date and registration date of national taxes, mortgage, lease on a deposit basis, etc., other than the increased additional charges. (3) The delivery claim under the Local Tax Act is the same as the principal tax. (3) The delivery claim under the Civil Execution Act is limited to the extent of the completion date of demand for distribution under the Civil Execution Act. The purport of such restriction is to prevent excessive auction by confirming the amount of claims from the proceeds of sale of the objects of auction and to avoid the increase of the amount of claims during the distribution procedure, and thus, it is unreasonable for the State to interpret the increased additional charges to the extent that it does not have any legal grounds for requesting the distribution of the amount of claims to be issued until the fixed amount of claims for distribution cannot be deemed to be unlawful.

(2) As to the claim for modified delivery after the end of the demand for distribution

The request for delivery under Article 56 of the National Tax Collection Act is to seek a distribution of delinquent national taxes by joining the compulsory refund procedure, which is already in progress by the tax authority, and it is in the same nature as the demand for distribution in the real estate auction procedure under the Civil Execution Act. Thus, only if the tax authority requested a delivery by the successful bid date, the national taxes can be distributed. The amount of tax which is not legitimate request for delivery shall not be distributed regardless of whether the national tax claims take precedence over other claims under the substantive law (see Supreme Court Decision 91Da4834 delivered on April 28, 1992, etc.). Meanwhile, where the attachment registration by the disposition on default was completed before the commencement of the auction procedure, even if the request for delivery was not made under Article 56 of the National Tax Collection Act, it becomes effective as a matter of course until the successful bid date is declared, and even if the State fails to submit evidential documents that can calculate delinquent national taxes by the successful bid date, it shall be deemed that there is no special reason to report the amount of the relevant auction within 20.5.

Pursuant to the aforementioned legal doctrine, a claim for the delivery of a tax claim may be made only by the completion period for the demand for distribution, as in principle, as in the case of the demand for distribution. However, in a case where the seizure is registered as a procedure for the disposition of default of national taxes prior to the registration of the decision on commencing the commencement of auction, a claim for delivery was filed prior to the completion period for the demand for distribution, but there is room to view that any tax claim constituted after the registration of the seizure that was made after the request for the delivery may be

However, (1) If a security right established and publicly notified first and becomes incapable of performing the collateral function in accordance with its original purpose without any reasonable grounds, it may be deemed that there is a violation of the security right as well as the essential contents of the private property system. (2) As seen earlier, a request for delivery under the Local Tax Act is identical to the demand for distribution under the Civil Execution Act, and the demand for distribution under the Civil Execution Act is limited to only the completion period for the demand for distribution under the same procedure. As such, the reason why the purport of the request is to prevent the excessive auction by determining the amount of the claim to be collected from the proceeds of the sale of the object of auction in the distribution procedure, and to prevent the excessive auction by preventing the increase of the amount of the claim in the distribution procedure, and such need does not differ from the amount of the claim, and thus, the request for the delivery of local tax may only be made by the completion period for the demand for distribution, and (3) only after the legitimate request for the delivery of the local tax claim, regardless of whether the claim for distribution had already been made by other unlawful claims under the Local Tax Act.

In light of the above legal principles, given that the property tax of this case does not include the property tax of this case as to the instant case in the delinquent local tax claim that was the cause of the attachment indicated in the attachment report by the Defendant, the claim that can only be distributed prior to the completion date of the demand for distribution, and where the Defendant first requested the delivery thereof on May 10, 2010, which was later than August 24, 2009, which was the completion date of the demand for distribution of this case, the Defendant cannot be deemed to have lawful demand for distribution.

Therefore, even though the taxation claim is prior to the order of dividend priority over the registration of the establishment of the plaintiff's neighboring mortgage, it is not the seizure prior to the registration of the establishment of the auction, but the decision of the auction court which paid dividends prior to the plaintiff's claim, considering that the property tax of this case, which did not have a legitimate demand for distribution, is the same as the current tax having completed the registration of the seizure in the previous order, cannot be exempted. Therefore, the

○ Meanwhile, according to Article 47(2) of the National Tax Collection Act, the Defendant asserts that the attachment under the disposition on default is effective as the initial attachment against the new delinquent tax amount of the relevant delinquent taxpayer. Accordingly, the instant property tax arising prior to the completion date of the demand for distribution also becomes effective, and accordingly, it is lawful to distribute the dividends in accordance with documents, evidence, etc. submitted within the scope of the initial attachment registration

However, Article 47 (2) of the National Tax Collection Act provides that the effect of the seizure of real estate, etc. conducted by the head of a tax office shall also extend to the delinquent amount of the national taxes for which statutory due date has arrived at before the ownership of the relevant attached property is transferred pursuant to the provisions of Article 35 (1) of the Framework Act on National Taxes. The purport of the above provision is only that if the seizure is registered once, it does not have a new seizure registration for the delinquent tax amount incurred after the registration of the seizure against the same person, and it does not recognize a special priority of the national tax claim arising after the seizure (see Supreme Court Decision 87Nu827 delivered on January 19, 198). This is due to the policy consideration for securing the collection of national taxes (see Supreme Court Decision 87Nu827 delivered on January 19, 198), and even if the effect of the seizure by a disposition on default extends to the delinquent tax amount arising after the registration of the seizure, the claim for the delinquent tax amount arising after the registration of the seizure shall also be made by the expiration date, and it cannot be justified.

C. Sub-decision

Therefore, it is unlawful for the Defendant to distribute the amount of KRW 405,038,890 (the increased amount of KRW 69,967,350 + the property tax of this case + KRW 335,071,540, the property tax of this case) to the Defendant, who did not demand a distribution by August 24, 2009, which was the final date for the demand for distribution of this case, even though the Defendant submitted a claim statement on May 10, 2010, which was the completion date for the demand for distribution, and requested a correction of the claim statement on May 10, 2010, it cannot be distributed preferentially to the Plaintiff’s registration for the establishment of the right to collateral security. Therefore, the distribution amount of KRW 1,12,178,478,471,4739,379,379,379,379,379,379,47,29,79,79,7137, etc.

4. Conclusion

Thus, the plaintiff's claim shall be accepted on the ground of the reasons.

[Attachment]

Judge Lee Il-young (Presiding Judge)

Note 1) Isin, the issue of dividend under the Civil Execution Act (Seoul: Jinwon, 208), 758 pages

Note 2) 757-758 et al.