[2] Criteria for application of grounds for cancellation of attachment under Article 53 (1) 2 of the National Tax Collection Act

[3] The relationship between the validity of the registration of national tax seizure where the registration of national tax seizure has been completed between the preceding provisional registration and the principal registration based thereon

[4] In a case where there is no room for the remainder after appropriating the priority claim and disposition fee for arrears even if the public sale is conducted, whether the cause of cancellation of attachment is (affirmative)

[2] The provisions of Articles 50 and 53(1)2 of the National Tax Collection Act and Article 55(2) of the Enforcement Decree of the same Act on the cancellation of attachment are based on the premise that the third party’s assertion of ownership is reasonable as of the time of the seizure of property. Thus, if the subject matter of attachment at the time of the seizure disposition by the head of a tax office is not owned by a third party, even if the subject matter of attachment was not owned by the third party, it does not constitute the requirements for the cancellation of attachment under the above Act.

[3] In a case where a provisional registration to preserve the right to claim ownership has been made prior to the registration of seizure and the principal registration has been made thereafter, if such provisional registration is a provisional registration to preserve the order of priority on the basis of the promise to sell and purchase, the registration of seizure completed thereafter shall lose its effect and be cancelled. Thus, Article 53(1)2 of the National Tax Collection Act on the ground of cancellation of attachment does not have room for applying Article 53(1)2 of the National Tax Collection Act, while if such provisional registration is a provisional registration for debt security, i.e., a provisional registration

[4] Even if the tax authority at the time of filing an application for cancellation of attachment, it is clear that the amount of claims secured by provisional registration security interest in the attached land which takes precedence over the amount of national taxes in arrears exceeds the value of the land, and if it is proved that there is no possibility that the remainder will be generated by appropriating the disposition for disposition for arrears by public auction, it constitutes "when the seizure becomes unnecessary due to other reasons" under Article 53 (1) 1 of the National Tax Collection Act, and thus the head of the tax

1. On the first ground for appeal

In cases where a taxpayer’s property was seized as part of disposition on default, but a cause for cancellation under the subparagraphs of Article 53(1) of the National Tax Collection Act occurs thereafter, the head of a tax office shall release the attachment, and the taxpayer and the person who has legal interest in the cancellation of the attachment may apply for the cancellation of attachment to the tax office at any time unless a cause for cancellation exists. If the tax office refuses a party’s request for cancellation of attachment, it is natural that the other party may file a request for review within 60 days from the date of receipt of notification of the relevant refusal disposition under Articles 5(1) and 61(1) of the Framework Act on National Taxes (see Supreme Court Decisions 89Nu4024 delivered on December 12, 1989; 92Nu1505 delivered on April 27, 1993).

Therefore, even if Article 48(1) and (2) of the National Tax Collection Act provides that the head of a tax office shall notify the mortgagee, etc. of the attachment of property and the creditor having priority over national taxes shall report to the head of a tax office within 10 days to exercise his/her right, the date of receipt of the notification shall be the starting point of the appeal period or the date when the plaintiff becomes aware of the seizure on the date when the principal registration procedure of the transfer of ownership in this case was completed, such date shall not be the starting point of the appeal period.

In addition, even though the plaintiff lost the State by means of civil procedure, since the principal registration procedure of this case was completed after the plaintiff completed the principal registration procedure of this case and the registration of the defendant was completed after provisional registration of the plaintiff, it cannot be asserted against the plaintiff, the plaintiff cannot seek cancellation of the disposition against the defendant who rejected the cancellation of attachment on the ground that the grounds that the plaintiff had a ground for cancellation of attachment that completely differs from the litigation procedure of this case, the plaintiff cannot seek cancellation of the disposition by an appeal litigation. The judgment of the court below to the same purport is just, and the grounds for appeal against this objection

2. On the second ground for appeal

A. According to the reasoning of the judgment below, the court below decided that the provisional registration of this case was unlawful on July 26, 198 for the purpose of preserving the claim against the non-party company's transfer of ownership on the ground that the plaintiff rejected the above provisional registration of this case on July 29, 198 for the purpose of preserving the claim against the non-party company's transfer of ownership on July 29, 198, and that the provisional registration of this case was made to secure the above claim against the non-party company's transfer of ownership, and that the non-party company's provisional registration of this case was made based on the above provisional registration of this case on July 29, 198, on the ground that the non-party company's provisional registration of this case was not made for the purpose of securing the ownership of the non-party company's provisional registration of this case on September 15, 1989, and that the provisional registration of this case was not made for the purpose of securing the claim against the non-party company's transfer of ownership.

B. Article 50 and Article 53 (1) 2 of the National Tax Collection Act and Article 55 (2) of the Enforcement Decree of the same Act on the cancellation of attachment stipulate that the third party's claim for ownership is deemed reasonable as at the time of the seizure of property. Thus, if the subject matter of attachment at the time of the seizure disposition by the head of a tax office does not belong to a third party as the ownership of a delinquent taxpayer, even if the subject matter of attachment at the time of the seizure disposition is not the ownership of a third party, it cannot be deemed as a requirement for the cancellation of attachment under the above Acts and subordinate statutes (see Supreme Court Decision 87Nu701, Apr. 12, 198). Meanwhile, in a case where a provisional registration for the preservation of right to claim ownership has been made prior to the registration of seizure and the principal registration has been made after the provisional registration is made based on the priority preservation order, the subsequent registration becomes void and thus, there is no room for application of Article 53 (1) 2 of the National Tax Collection Act as to the grounds for cancellation.

Nevertheless, the court below recognized that the provisional registration under the Plaintiff’s name was made for the purpose of security, but held that the provisional registration for the purpose of preserving the order of priority in ownership transfer constituted “where the third party’s assertion on ownership is deemed reasonable” under Article 53(1)2 of the National Tax Collection Act by understanding that the effect of the registration of seizure is extinguished by this registration, as in the case where the provisional registration for the purpose of preserving the order of priority in ownership

C. However, according to the facts and records established by the court below, since the value of the land of this case at the time when the plaintiff notified the execution of the right to collateral under the procedures under the Provisional Registration Security Act was KRW 382,928,00,000, which is above 436,350,000, which is the original amount of the secured claim, and it can be seen that the amount of the secured claim was above 6 months after the provisional registration of this case was completed, barring any special circumstance, it is evident that the amount of the secured claim is below the land value. However, in light of the fact that Article 1 of the Provisional Registration Security Act provides that the provisional registration of this case is applied only when the amount of the secured claim at the time of the reservation exceeds the borrowed amount and the interest accrued thereon, the provisional registration of this case is not subject to the Provisional Registration Security Act (see Supreme Court Decisions 89Da2125,12132, 2132, 191; 200Da35949, Dec. 19, 209, etc.

However, even if the procedure of seizure, etc. due to the default of national taxes was conducted before September 3, 1990 by the Constitutional Court on the portion of "one year from ........." under Article 35 (1) 3 of the former Framework Act on National Taxes (amended by Act No. 4277 of Dec. 31, 1990), the part concerning the decision of unconstitutionality in the above provision cannot be applied (see Supreme Court Decision 93Da24995, Sept. 28, 1993). Thus, even if the time of provisional registration is within one year from the time of payment of national taxes, the provisional registration should prevail with the national taxes in cases of mortgages. Meanwhile, according to the facts and records established by the court below, if the defendant at the time of the request for cancellation of the attachment of the land in this case exceeds the amount of the plaintiff's claim for provisional registration taking precedence over the amount of national taxes in arrears, if there is no room for the remaining attachment under Article 15 (19) of the National Tax Collection Act.

D. Therefore, the defendant's disposition rejecting the plaintiff's request for cancellation of attachment is clear and thus it should be revoked, and the court below's decision that the ground for cancellation of attachment corresponds to the case where the third party's claim of ownership as provided by Article 53 (1) 2 of the National Tax Collection Act, other than other grounds stipulated by Article 53 (1) 1 of the National Tax Collection Act, is justified as seen above, in light of the provision on the case where the above provision is found not to be owned by the delinquent taxpayer as of the time of seizure, but it is found that the disposition of rejection of the cancellation of attachment of this case was illegal, but the above error is not a ground for reversal of the court below's decision. The grounds for appeal

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)