[1] The purpose of cancellation of attachment under Article 53 (1) 1 of the National Tax Collection Act

[2] In case where a request for cancellation of attachment is made on the condition of payment or appropriation of delinquent tax amount, whether the refusal of such request is unlawful (negative)

[1] Article 53 (1) 1 of the National Tax Collection Act provides that the head of a tax office shall release the attachment in cases where the attachment is no longer necessary due to payment, appropriation, suspension of public sale, cancellation of imposition, and other reasons. This is that the head of a tax office must release the attachment in cases where a tax official seizes the taxpayer's property as part of a disposition on default, but the tax office becomes extinct as in the above legal grounds or there is no surplus possibility to cover the delinquent tax amount even after the disposition on default, and thus, it is unnecessary to lose the grounds for

[2] The head of a tax office may release the attachment only when a cause for release under Article 53 (1) 1 of the National Tax Collection Act has already been determined. Thus, in case where a request for release of attachment was made on condition of payment or appropriation of the tax amount in arrears, it cannot be made on condition of conditional release of attachment. Thus, even if such request for release of attachment was rejected, it cannot be deemed unlawful.

[1] Article 53 (1) 1 of the National Tax Collection Act / [2] Article 53 (1) 1 of the National Tax Collection Act

Plaintiff (Attorney Lee Jae-soo, Counsel for plaintiff-appellant)

Head of Yongsan Tax Office

Seoul High Court Decision 94Gu32575 delivered on March 9, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

Article 53(1)1 of the National Tax Collection Act provides that the head of a tax office shall release the attachment when the necessity of the attachment becomes unnecessary due to payment, appropriation, suspension of public sale, cancellation of the imposition, and other reasons. This means that the head of a tax office must release the attachment in the case where the tax official seizes the taxpayer's property as part of the disposition on default, but the tax office becomes extinct as in the above legal grounds, or where the taxpayer's property becomes unlikely to pay the delinquent tax amount even after the disposition on default is taken, or where the taxpayer'

Therefore, the director of the tax office can release the attachment only if the cause for the release was already determined, so if the release of attachment was applied on the condition of payment or appropriation of the tax amount in arrears, it cannot be subject to conditional release. Therefore, even if the application for release of attachment was rejected, it cannot be deemed unlawful.

According to the facts established by the court below, the plaintiff filed an application for the cancellation of the above provisional registration on June 14, 1993 on the condition that the defendant shall pay 5,359,840 won of the total national tax in arrears, which remains in arrears, among the national tax in arrears of the non-party company against the defendant on June 9, 1987, on condition that the defendant shall pay 5,359,840 won of the national tax in arrears, and the defendant, on November 8, 1993, issued a disposition of refusal on November 8, 1993.

In the same way, the court below's conclusion that the defendant's disposition rejecting the plaintiff's request for cancellation of attachment is justifiable, since it does not fall under any of the grounds for revocation of attachment under Article 53 (1) 1 of the National Tax Collection Act.

In light of the principle of equity, the lower court’s determination that Article 35(2) of the Framework Act on National Taxes applies only to provisional registration for the purpose of this case’s security and that provisional registration based on a pre-sale agreement as to this case’s sales is unlawful, or that even if provisional registration is not included under Article 35(2) of the same Act, a right identical to provisional registration for the purpose of security may be asserted in light of the principle of equity, but the propriety thereof does not affect the conclusion of the instant case’s conclusion.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)