Cheongju District Court-2014-Kadan-1683 (2014.09)

It is also valid that the mortgagee's disposal of collateral by the mortgagee or seizure of collateral by the creditor is also valid because it is treated as the owner.

Since the external ownership of a taxpayer at the time of the seizure disposition on the object of transfer is the ownership of a taxpayer, it cannot be deemed unlawful to seize it and sell it, or null and void as an anti-social legal act

Article 50 of the National Tax Collection Act, Article 53 of the National Tax Collection Act

Cheongju District Court 2014Kadan1683 Compensation for Damages

AAA Construction Company

Korea

July 9, 2014

October 7, 2016

January 6, 2017

1. The plaintiff's appeal and the plaintiff's conjunctive claim added in the trial are all dismissed.

2. The costs of lawsuit after the appeal shall be borne by the Plaintiff.

Cheong-gu Office

The judgment of the court of first instance shall be revoked. The defendant primarily pays to the plaintiff 86,19,00 won and 5% per annum from June 2, 2004 to the date of delivery of a copy of the application for modification of the claim as of September 1, 2016, and 15% per annum from the next day to the date of full payment, and 38,766,340 won and 19,497,190 won among them, preliminaryly, from September 28, 2001 to June 11, 2004 to the date of delivery of a copy of the application for modification of the claim as of September 1, 201 to the date of full payment, and from the next day to the date of full payment to the date of full payment (the plaintiff shall be additionally paid).

1. Basic facts

This Court's reasoning is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this Court's reasoning is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Judgment as to the plaintiff's primary claim

A. The plaintiff's assertion

The Defendant was aware of, or could have known, the fact that the Plaintiff registered the preservation of ownership in the name of △△ Construction, the creditor for the purpose of collateral security, as the owner of the instant tenement house (hereinafter referred to as “house of this case”) through inquiry of the fact about the Defendant (DD Tax Office) committed in the △△ District Court 2000Kahap2983, which was brought against the construction of △△△△△△, and the civil petition against the Defendant (DD Tax Office) on the part of the BB, which was brought against the Defendant (DD Tax Office). In addition, the Plaintiff asserted and claimed ownership of the instant house against the Defendant, and filed a lawsuit against the construction of △△△△, the Defendant was awarded a favorable judgment, and thus, the Defendant was obligated to suspend the execution of the disposition on default and to release the seizure of the instant house pursuant to Article 53 of the former National Tax Collection Act (amended by Act No. 8832, Dec. 31, 2007) and Article 55 (1) of the

Nevertheless, the Defendant, without any specific confirmation procedure, sold the instant house, which was owned by the Plaintiff against the good faith principle and was not owned by △△ Construction, a taxpayer, thereby causing damage to the Plaintiff’s loss of ownership by public sale. In addition, the Defendant, on December 27, 2012, expressed its opinion that the instant house was owned by the Plaintiff and the Plaintiff would cancel the receipt and return the proceeds thereof, and thus, reversed it in violation of the principle of trust protection.

Therefore, the Defendant is obligated to pay the Plaintiff the sales price of KRW 86,199,00,00 (=the sales price of KRW 44,778,000 + the sales price of KRW 507 + the price of KRW 41,421,00) and damages for delay, which is the sum of the sales price of August 14, 1993 of the instant housing, as damages for the said tort.

B. Determination

If a building permit of a building newly constructed by a debtor at his/her own expense and effort to secure a debt under the name of the creditor is deemed an agreement on the creation of a security right to provide a building to be completed as a security for transfer (see, e.g., Supreme Court Decisions 2001Da48347, Jan. 11, 2002). The ownership of a completed building is once the debtor who constructed the building, after the debtor acquired it initially and completed registration of preservation of ownership in the name of the creditor, its ownership is transferred to the creditor within the scope of the secured purpose (see, e.g., Supreme Court Decision 9Da47501, Jun. 26, 2001). It is externally treated as the owner, and the mortgagee’s disposal of collateral or seizure of the creditor’s collateral is also valid (see, e.g., Supreme Court Decisions 201Da62431, Oct. 11, 2012; 2012Na10205, May 12).

Therefore, even if the Defendant knew or could have known that there was an agreement between the Plaintiff and △ Construction at the time of the seizure disposition of the instant housing, the instant housing is owned by △△ Construction, a taxpayer, and thus, it cannot be deemed unlawful for the Defendant to sell the instant housing by seizure or null and void as an anti-social legal act.

In addition, Article 53(1) of the former 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, and that the third party who wishes to claim the return of the attached property shall submit evidentiary documents proving the ownership to the head of a tax office by no later than five days before the sale of the attached property) under Article 50 (Article 50) of the former National Tax Collection Act provides that the third party who wants to claim the return of the attached property shall obtain a favorable judgment by filing a lawsuit on the ownership against the delinquent taxpayer. The above provision provides that the third party's claim on the ownership is deemed reasonable as at the time of seizure, or that the attached property is owned by a third party at the time of seizure, and that the execution of the attachment should be revoked because it is unlawful (see, e.g., Supreme Court Decisions 87Nu701, Apr. 12, 198; 84Nu520, May 14, 1985).

Furthermore, it is difficult to view that the Defendant expressed his opinion to the Plaintiff that the instant house was owned by the Plaintiff, and thus, the Defendant would cancel the receipt and return the sales price, and there is no other evidence to acknowledge it.

Therefore, the plaintiff's primary claim on different premise is without merit.

3. Judgment on the plaintiff's conjunctive claim

A. The plaintiff's assertion

The attachment disposition against the housing of this case, which is the Plaintiff’s property owned by the Defendant, is null and void as a matter of course. Even if the taxation disposition is lawful, the act of collecting taxes based on the invalid attachment disposition is null and void or nonexistent, and the tax amount of 38,766,340 won paid due to such collection act constitutes erroneous payment and thus ought to be returned to the Plaintiff as unjust enrichment. Accordingly, the Defendant is obliged to return to the Plaintiff the amount of 38,766,340 won as unjust enrichment and the interest or delay delay

B. Determination

However, the seizure disposition on the housing of this case is valid as seen earlier, and there is no evidence to deem otherwise that the defendant obtained a benefit without any legal ground. Thus, the plaintiff's preliminary claim is without merit.

4. Conclusion

Therefore, the plaintiff's main claim and the conjunctive claim are all dismissed as they are without merit, and the judgment of the court of first instance is just, and the plaintiff's conjunctive claim added at the plaintiff's appeal and the court of first instance are all dismissed as they are without merit. It is so decided as per Disposition.