Whether the disposition on default is valid where an assignment order on some amount of credit has been issued.

If attachment by disposition on default is limited to a part of the claim for the construction price, which is a priority claim of the plaintiff, and the remainder is extended to the whole amount of the claim for the construction price, the defendant may participate in the execution procedures of seizure or request for delivery unless the general public receives an order of seizure or issuance.

Article 35 of the Framework Act on National Taxes

[Supreme Court Decision 2007Da70933, Oct. 14, 2008]

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

We examine the grounds of appeal.

According to the reasoning of the judgment of the court below, the court below accepted the judgment of the court of first instance, and found facts as stated in its reasoning, and found that the attachment based on the disposition on default was limited to KRW 9,751,620 among the claims for construction payment, which are claims subject to attachment, for the plaintiff's priority, and subsequent order was served on ○○○○○, a general creditor, to ○○○○, upon the attachment and assignment order, on the remainder of KRW 6,129,50, and the attachment order was served on the third debtor, as long as the attachment order does not extend the effect of the attachment due to the disposition on default to ○○○○, a third debtor, even if the total amount of the construction payment claims exceeds the total amount of the construction payment claims, the court below determined that the part of KRW 6,129,500 among the construction payment claims is valid in accordance with the assignment order and excluded from the future execution due to the plaintiff's disposition on default. Accordingly, the defendant who is a tax claim can participate in the execution procedure.

In light of the records, the above judgment of the court below is just and acceptable, and there is no error of law such as misunderstanding of legal principles as to the concurrence of seizure, or promotion of judicial precedents as alleged in the grounds of appeal. The precedents cited in the grounds of appeal are different from this case, and it is not appropriate to invoke this case.

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.

Changwon District Court Decision 2007Na5476 (2007.09.07)

1. The plaintiff's appeal is dismissed.

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

제1심 판결을 취소한다. 〇〇지방법원 〇〇지원 2006타경508호 배당절차 사건에 관하여 같은 법원이 2006. 11. 28. 작성한 배당표 중 피고에 대한 배당액 9,751,620원을 삭제하고, 원고에 대한 배당액을 9,751,620원으로 각 경정한다.

The court's explanation on this case is the same as the part of the reasoning of the judgment of the court of first instance, and thus, citing it as it is by the main text of Article 420 of the Civil Procedure

Therefore, the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed.

[Chowon District Court Decision 2006Gadan22612, 207. 26]

1. The plaintiff's claim is dismissed.

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

Of the dividend schedule prepared on November 28, 2006 with respect to the dividend proceedings cases of this Court 2006 Tagi508, the amount of dividends to the defendant shall be deleted from KRW 9,751,620, and the amount of dividends to the plaintiff shall be corrected from KRW 9,751,620, respectively.

1. Facts of recognition;

A. From June 2005 to February 2006, the non-party ○○ Construction Co., Ltd. (hereinafter referred to as the "non-party ○○ Construction Co., Ltd.") did not pay KRW 9,751,620 in total, including the national pension premium of KRW 8,855,100, late 896,520, and late 896,520. The plaintiff was served on April 6, 2006, when it received a seizure and collection order against the construction bond claim (hereinafter referred to as the "construction bond claim of this case") under the contract for the ○○○○ Village Maintenance Construction Co., Ltd., Ltd. (hereinafter referred to as the "non-party ○○ Construction Co., Ltd.") in order to collect the above delinquent national pension premium, the plaintiff was served on the local government on April 6, 2006.

B. Nonparty 1, as a creditor of the non-party company, received an order of seizure and assignment on the instant claim for construction price, which was served on April 7, 2006 by the seizure and assignment order.

C. The Defendant’s ○○ Tax Office received a seizure and collection order as to the claim for construction payment of this case under the order to collect the national taxes in arrears of the non-party company. The above seizure and collection order was served at ○○ on May 22, 2006.

D. ○○○ City deposited KRW 15,917,00,000, which is the amount of other settlement of accounts for the claim for construction price of this case, to the deposit officials of this court under 2006,1568.

E. On November 28, 2006, the date of distribution of the distribution procedure case of 2006 Ma508, the court prepared a distribution schedule that deducts KRW 35,880,00 from the dividend amount of KRW 15,917,00 as above, KRW 15,881,120, the total amount of KRW 9,751,620 from the amount of credit to the ○○○ Tax Office affiliated with the defendant, and distributed KRW 6,129,50 from the amount of credit amount of KRW 50,158,960 from the amount of credit amount of KRW 50,158,960, the plaintiff raised an objection against the whole amount of credit of the defendant by asserting that the plaintiff must attend the above distribution date and distribute the plaintiff's credit amount in one priority order.

[Reasons for Recognition]

Facts without dispute, Gap evidence 1 through 3, the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

As long as an assignment order is valid with respect to 6,129,50 won, excluding the amount of 9,751,620 won specified by the Plaintiff’s disposition on default, among the claim for construction price of this case, the Defendant, who is an execution creditor subsequent to 200,000 won, is no longer entitled to participate in the execution procedure following the seizure, and thus, the Plaintiff shall receive a dividend in the first order.

B. Determination is based on Article 79(3) of the National Pension Act provides that delinquent pension premiums shall be subject to the example of disposition on default. In light of the purport of Article 43 of the National Tax Collection Act regarding delinquent pension premiums upon the disposition on default, where a new seizure order is issued in excess of the remainder after a part of the claims is partially attached, each seizure shall be effective only when a part of the claims is specified in a compulsory execution based on a general claim, which shall affect the whole amount of the claims, and the effect of the seizure shall not be extended to the whole amount of the claims subject to seizure even if there is a seizure by compulsory execution and the total amount of the claims subject to seizure exceeds the total amount of the claims subject to seizure. Thus, the assignment order by a subsequent execution creditor shall not be deemed null and void, and the remaining part of the claims other than the specific part shall be limited to only the remaining part of the claims subject to seizure.

Therefore, in this case, ○○○, a subsequent execution creditor, was entirely bound by the above ○○○. However, 9,751,620 won of the remainder of the claims except the claims entirely paid to ○○○○, among the construction cost claims of this case, was specified due to the Plaintiff’s disposition on default, and the Plaintiff and the Defendant can participate in the execution procedure under the principle of equality. According to Article 81 of the National Pension Act, the order of priority in the collection of pension premium and other charges under the above Act shall be the same order as the insurance premium under the National Health Insurance Act. According to Article 73 of the National Health Protection Act, the insurance premium shall be collected in preference to national taxes and other claims except the national taxes and local taxes, and the order of priority in the insurance premium shall be higher than national taxes. Accordingly, as to the remainder of claims except the claims entirely paid to ○○○○, the Defendant should be paid dividends in preference to the Plaintiff, and thus, the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.