[부동산압류해제신청거부처분취소][공1997.3.15.(30),788]
Whether a filing of a lawsuit concerning ownership after provisional attachment or disposition of delinquent attachment prior to the disposition of delinquent attachment constitutes grounds for cancellation of attachment (negative)
Article 53(1) of the National Tax Collection Act provides that the head of a tax office shall release the attachment in the case falling under any of the following subparagraphs. Article 53(2)2 provides that "When a third party deems that there is a considerable reason to claim the ownership of a third party pursuant to the provisions of Article 50," subparagraph 3 provides that "when the third party proves the fact that he/she has won a favorable judgment by filing a lawsuit on the ownership against the delinquent taxpayer." However, all of the above provisions provide that the claim that the property seized at the time of the attachment is owned by the third party is reasonable or it becomes final and conclusive in civil procedure, so long as the real estate belongs to the ownership of the delinquent taxpayer at the time of the attachment disposition, it cannot be said that the other creditor attached the real estate before the attachment disposition or filed a lawsuit to claim the transfer registration procedure against the delinquent taxpayer after the attachment disposition.
Article 53 (1) of the National Tax Collection Act
Supreme Court Decision 83Nu32 delivered on August 23, 1983 (Gong1983, 1436), Supreme Court Decision 84Nu520 delivered on May 14, 1985 (Gong1985, 851), Supreme Court Decision 87Nu701 delivered on April 12, 198 (Gong198, 848), Supreme Court Decision 95Nu15193 delivered on December 20, 196 (Gong197, 435)
Seoul Building Comprehensive Materials Exhibition Center
Head of the Gu Tax Office
Daegu High Court Decision 95Gu3818 delivered on January 12, 1996
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined.
Article 53 (1) of the National Tax Collection Act provides that the head of a tax office shall release the attachment in cases falling under any of the following subparagraphs. Article 53 (2) 2 provides that "When it is deemed that a third party has considerable reason to claim the ownership of a third party pursuant to the provisions of Article 50," subparagraph 3 provides that "if the third party has obtained a favorable judgment by filing a lawsuit on the ownership against the delinquent taxpayer, and proves the fact," the above provisions provide that all of the above provisions refer to cases where the assertion that the property seized at the time of seizure is owned by the third party or where the fact that the property is owned by a third party becomes final and conclusive in civil procedure (refer to Supreme Court Decisions 87Nu701 delivered on April 12, 198, 84Nu520 delivered on May 14, 1985, etc.), so long as the real property in this case belongs to the non-party company's ownership at the time of the attachment disposition, the plaintiff cannot file a claim for the attachment registration against the non-party.
In the same purport, the court below's rejection of the plaintiff's request for revocation of the revocation of the revocation of the request to cancel the attachment of this case is justified, and there is no error of incomplete deliberation or misapprehension of legal principles as alleged in the grounds of appeal. The Supreme Court's precedents cited in the grounds of appeal are not purporting that the provisional attachment takes precedence over the validity
Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-ho (Presiding Justice)