Plaintiff (Law Firm Sejong, Attorneys Kim Simn et al., Counsel for the plaintiff-appellant)

Korea Asset Management Corporation (Law Firm Jin, Attorneys Lee Jong-min et al., Counsel for the plaintiff-appellant)

March 6, 2015

Busan District Court Decision 2014Guhap732 Decided August 14, 2014

1.The judgment of the first instance shall be modified as follows:

A. The plaintiff's main claim is dismissed.

B. The plaintiff's conjunctive claim part is dismissed.

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

The judgment of the first instance court shall be revoked. In the first instance court, the defendant's decision on March 19, 2013 is revoked. On March 19, 2013, the defendant's disposition to refuse to cancel the attachment against the plaintiff as to the block cement tank and 27.27m2 of the 8610m2 of the Nam-gu Busan Metropolitan Government ( Address 1 omitted) table on the ground of the section 8610 of the 27m27m2 of the 197m2 of the 207m2 of the 195. Preliminaryly, the defendant confirmed that the defendant does not have any obligation of 24,071,070 won against the non-party 1 (the non-party 1) imposed on the non-party 1 (the plaintiff changed the claim of this case to the plaintiff's main claim and the conjunctive claim as above).

1. Basic facts

A. The head of Nam-gu Busan Metropolitan City (hereinafter the head of Nam-gu) (hereinafter the head of Nam-gu) newly constructed a cement structure and a branch roof single-story house (hereinafter the “instant building”) on the land of Nam-gu Busan Metropolitan City ( Address 1 omitted: address omitted) and 214 square meters (hereinafter the “instant land”) which is a general property owned by the State, and owned the instant land without permission. The head of Nam-gu Busan Metropolitan City (hereinafter the “the head of Nam-gu”) imposed indemnity on Nonparty 1 (the person outside the board: the person outside the board) on the ground that Nonparty 1 (the person outside the board) did not pay indemnity by the due date, and on the ground that Nonparty 1 (the person outside the board: the person outside the board) did not pay indemnity by the due date, the Busan District Court of Busan District on February 16, 1995 (hereinafter the “instant seizure”).

B. On March 30, 2002, the Plaintiff purchased the building of this case from Nonparty 1 (OOE) and completed the registration of ownership transfer in the name of the Plaintiff on April 2, 2002.

C. On December 15, 201 and June 15, 2011, the remaining head of the Si/Gun/Gu imposed indemnity on Nonparty 1 (hereinafter “the instant disposition on deficits”) on the part of Nonparty 1 (the Nonparty 1 (the Nonparty 1) on the ground of the death of Nonparty 1 (the Nonparty 1).

D. On December 2, 2012, the Plaintiff asserted that “the indemnity imposed after the instant seizure had already ceased to exist five years after the extinctive prescription of the collection right,” and filed an application for the cancellation of the instant seizure, while paying KRW 2,077,570, the amount of the indemnity up to the time of the instant seizure.

On December 4, 2012, the remaining head of the Gu responded to the Plaintiff on December 4, 2012 to the effect that “it is possible to release the attachment of the entire amount of compensation equivalent to 24,071,070 won (hereinafter “instant compensation”) already occurred from May 10, 1995 to May 7, 2001, the instant disposition on deficits was revoked on December 14, 2012.

E. On March 15, 2013, the Plaintiff requested the South-North Korean head of the South-North Korean government to cancel the instant seizure, but on March 19, 2013, the remaining head of the South-North Korean government responded to the purport of refusing the instant seizure (hereinafter “instant refusal disposition”).

F. On April 2, 2013, the Plaintiff filed an application with the Central Administrative Appeals Commission for a decision with the purport of removing the instant seizure, but the Central Administrative Appeals Commission dismissed the part seeking the implementation of the disposition on deficits on November 26, 2013, and dismissed the part seeking the cancellation of the instant seizure.

G. On December 1, 2005, the Defendant was transferred the management authority over the instant land by the head of the Nam-gu. On the other hand, on or before May 28, 2013, since the agency managing State-owned property claims was dualized, the Defendant was in charge of claims arising before December 1, 2005, but the head of the Southern-gu transferred all indemnity claims managed on or before May 28, 2013 to the Defendant, and thereby, the Defendant was also entitled to the release authority on the instant seizure.

【Unsatisfied Facts, Gap evidence 3, Gap evidence 4, Gap evidence 5-1, 2, Gap evidence 7, Eul evidence 1, Eul evidence 3-1, 2-2, and the purport of the whole pleadings

2. Relevant statutes;

The entries in the attached Table-related statutes are as follows.

3. Judgment on the main claim

A. The plaintiff's assertion

(1) The first argument

The purpose of Article 47(2) of the National Tax Collection Act is to make a registration of seizure only once, and it is to be effective without a new registration for the delinquent amount that occurred after the registration of seizure for the same person. Even if Article 73(2) of the State Property Act provides that a collection may be made by applying mutatis mutandis the provisions of the National Tax Collection Act’s provisions on the disposition of default on indemnity with respect to the disposition of default on indemnity, Article 47(2) of the National Tax Collection Act cannot be applied mutatis mutandis to the disposition of default on indemnity, since the national tax and its intrinsic nature are completely different from that of the national tax, and thus, Article 47(2) of the National Tax Collection Act cannot be applied mutatis mutandis to the disposition of default on indemnity. Accordingly, since the obligation imposed by the Plaintiff from the seizure of this case to the transfer of ownership from Nonparty 1 (the person other than the party other than the party) is already extinguished five years after the expiration of the statute of limitations on the collection right.

(2) The second assertion

Pursuant to Article 96(1) of the Framework Act on Local Taxes, the head of South and North Korean government, on December 15, 2010 and June 15, 201, issued a disposition of deficits on the ground of Non-Party 1’s death with respect to the obligation to compensate, etc. of this case, but again issued a disposition of cancellation of deficits as of December 14, 2012 pursuant to Article 96(2) of the Framework Act on Local Taxes and restored the obligation to compensate, etc. of this case. However, according to Article 96(2) of the Framework Act on Local Taxes, the head of a local government should cancel the disposition of deficits and make a disposition of arrears. (1) Since Non-Party 1 (non-party 1) already died on August 13, 2002, there is no possibility of other assets because it is unlawful to notify the non-party 1 of the grounds and scope of the cancellation of the disposition of deficits as of December 14, 2012 (the non-party 1).

(3) The third assertion

The remaining head of South and North Korea impose indemnity money on Nonparty 1 (the party who was not the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party who was the party.

B. Determination

(1) Determination on the first argument

(A) Article 73(2) of the State Property Act provides that the head of a central government agency, etc. may collect the State-owned property compensation and late payment charge thereof by applying mutatis mutandis the provisions on dispositions on default under Article 23 of the National Tax Collection Act and Article 23 of the same Act. The National Tax Collection Act provides that “The disposition on default under Chapter III of the National Tax Collection Act” is a part of Article 47(2) of the National Tax Collection Act. Article 47(2) of the National Tax Collection Act provides that “The seizure of real estate shall have effect on any default of national taxes, the statutory due date of which comes due under Article 35(1)3 of the Framework Act on National Taxes prior to the transfer of the ownership

(B) The purport of Article 47(2) of the National Tax Collection Act is due to policy consideration to secure the collection of national taxes, and if the seizure is registered once, the effect of the seizure naturally extends to the delinquent amount that occurred after the registration of the seizure for the same person without any need to complete a new registration (see, e.g., Supreme Court Decisions 8∑ 17174, May 9, 1989; 2010Da50625, Jul. 26, 2012); and it does not recognize any special priority of national tax claims that accrue thereafter (see, e.g., Supreme Court Decision 2003Du6115, Nov. 12, 2004).

(C) On the other hand, in applying the law in a way of legislative technology, if all of the provisions in the law are unable to be explained daily, the provisions of other law shall be amended to the extent that it does not go against its essential nature. In the case of indemnity for which the provisions of the National Tax Collection Act on the disposition of arrears shall apply mutatis mutandis, if it does not go against the above essential purport of Article 47(2) of the National Tax Collection Act that provides for the special provisions of seizure under the general civil law, the above provisions of Article 47(2) of the National Tax Collection Act shall also apply mutatis mutandis to the procedure for default

(D) Therefore, it is reasonable to view that Article 47(2) of the National Tax Collection Act is applied mutatis mutandis to the collection of indemnities and late payment fees in full view of all the following circumstances that can be acknowledged by comprehensively taking into account the following circumstances as a whole: (a) whether it does not go against the essential purport of Article 73(2) of the State Property Act in collecting indemnities pursuant to Article 73(2) of the State Property Act; (b) content and purport of Article 47(2) of the National Tax Collection Act; (c) content and purport of Article 73(2) of the State Property Act; and (d) the purport of Article 73(2) of

① Since national taxes are not directly accompanied by any consideration, the possibility of performance of such consideration is imminent than that of ordinary claims, and thus, measures are necessary to secure its performance. In cases of indemnity imposed on a person who uses, benefits from, or occupies State property without any loan agreement, the possibility of performance of such consideration is less than that of ordinary claims. Therefore, measures are necessary to secure its performance.

② In light of the fact that the State unilaterally collects indemnity in addition to the loan charges or usage fees to be paid in cases where the imposition of indemnity is permitted for loan, use, and profit-making, etc., in addition to the amount equivalent to the loan charges or usage fees to be paid by the State in a punitive sense, and that in cases of default, the State is obliged to collect indemnity under the National Tax Collection Act, it shall be deemed that the nature of the right to impose and collect indemnity is completely different from the rights under public law. Therefore, the legal relationship related to the imposition and collection of indemnity is clearly distinguishable from the legal relationship related to the collection of loan charges or usage fees of State property, which is basically a private legal relationship, which is basically a private legal relationship, and on the other hand, it is similar to the imposition and collection of taxes in terms

③ If the attachment of indemnity claims against a person who uses state property without permission does not have the effect of the attachment, it is difficult for the State to realize the amount in arrears of indemnity after the attachment, if the delinquent transfers the attached property to another person. Ultimately, the Office of Administration, whenever the amount in arrears of indemnity claims occur, should seize the delinquent’s property from time to time and when the delinquent amount in arrears occurs, shall waste enormous administrative power in managing

④ As seen earlier, the purpose of Article 47(2) of the National Tax Collection Act is to make a registration of seizure once, and if the registration of seizure is completed, it is only a special provision on the procedure that does not require a new registration of seizure on the delinquent amount arising after the registration of seizure, and it does not give a special priority to the national tax claim arising after the seizure. Thus, even if the indemnity claim takes precedence over the national tax claim unlike the national tax claim, there is no particular problem in applying Article 47(2) of the National Tax Collection Act mutatis mutandis. Meanwhile, the purpose of the State Property Act is to properly protect and efficiently manage and dispose of State property, and the state property is a single element that form the finances of the State. Thus, the necessity to secure the national finance by properly protecting the State property and efficiently managing it is higher than the collection of taxes. Therefore, there is a need to recognize such procedural special exception

⑤ The National Tax Collection Act, which is an essential part of the collection of national taxes, can apply mutatis mutandis to the usage fee or indemnity for State property, to the procedures for delinquency in payment, such as seizure, directly without a separate title of execution. It is difficult to find the necessity or justification to exclude the application of the special provisions on seizure under Article 47(2) of the National Tax Collection Act, which are stipulated in the head of the procedure for arrears, just with the provisions on self-performance right.

(E) Therefore, the effect of the seizure of this case also extends to the indemnity debt of this case, and accordingly, the statute of limitations has been interrupted. Thus, the plaintiff's assertion on this part, which is premised on the premise that the indemnity debt of this case has already expired over the five-year statute of limitations, is without merit.

(2) Judgment on the second argument

(A) As the non-party 1 (the non-party 1) died, the head of South and North Korea cancelled the disposition of loss of this case pursuant to Article 96 (2) of the Framework Act on Local Taxes in order to correct the damages of this case with the knowledge that the damages of this case remains effective by the seizure of this case, after which the non-party 1 (the non-party 1) made the disposition of loss of this case pursuant to Article 96 (1) of the Framework Act on Local Taxes. Although the State Property Act does not provide any provision on the disposition of loss of indemnity claim, the remaining head of South and North Korea did not take measures to cancel the disposition of loss of indemnity obligation after the disposition of loss of indemnity obligation

(B) However, a disposition agency which has conducted an administrative act may cancel it on its own without a separate legal basis, even if there is a defect in the act. However, when the disposition agency which has conducted an administrative act is cancelled, it may cancel it only when it is a strong case to justify the disadvantage of the party in need of public interest (see Supreme Court Decision 2013Du1611, Nov. 27, 2014, etc.) after comparing and comparing the necessity of the public interest to cancel it and the disadvantage such as the protection of trust and the infringement of the stability of legal life, etc. to be suffered by the party due to the cancellation, and it cannot be said that there is a serious and obvious defect in the disposition of this case, since the disposition of this case is based on mistake, it is possible for the remaining head of South Korea to cancel it on his own without a separate legal basis. The necessity and cancellation of the disposition of this case are compared with the necessity of the public interest to cancel the disposition of this case, and it cannot be deemed that there is a serious and obvious defect in the disposition of this case.

(C) Meanwhile, even though the State Property Act does not have any specific provision on the disposal of deficits of indemnity claims, it may be applied or referred to in the relevant provisions such as the Framework Act on National Taxes or the Framework Act on Local Taxes.

However, even though the "Disposition on Deficits" stipulated as one of the grounds for extinguishment of tax liability under Article 26 subparagraph 1 of the former Framework Act on National Taxes prior to the amendment by Act No. 5189 of Dec. 30, 1996 was excluded from the grounds for extinguishment of tax liability under the revised Framework Act on National Taxes, it has been maintained as it is under Article 86 (2) of the former National Tax Collection Act (amended by Act No. 6053 of Dec. 28, 1999), which provides that "when another property that can be seized at the time of the disposition on deficits is discovered," the disposition on deficits should be revoked without delay and the disposition on default should be revoked, and it is difficult to accept as "when another property that can be seized is discovered" in accordance with the purport of the amended Framework Act on National Taxes (amended by Act No. 5189 of Dec. 30, 199), it is difficult to accept as "when another property is found that the disposition on deficits did not have an effect on the plaintiff's rights and 20.

(D) Therefore, the plaintiff's assertion on this part is without merit under the premise that the cancellation of the disposition on deficits in this case is null and void as a matter of course.

(3) Judgment on the third argument

(A) First of all, it is difficult to view that there is a significant and apparent defect in the disposition imposing indemnity, even if the head of South and North Korea did not send a prior notice of indemnity, even if he/she did not present the prior notice of indemnity, on the grounds that there is no significant and apparent defect in the disposition imposing indemnity.

(B) In addition, in the case where the other party asserts that the head of the Gu did not properly send a notice for payment to Nonparty 1 (hereinafter referred to as Nonparty 1), the burden of proof as to the defect in the service procedure exists as to the defect in the service procedure, in a case where the other party asserts that an administrative disposition is void due to the defect in the delivery of a notice for payment (see Supreme Court Decisions 2009Du3460, May 13, 2010; 97Nu8977, Feb. 13, 1998). It is difficult to recognize that the reasons alleged by the Plaintiff did not send a notice for payment to Nonparty 1 (hereinafter referred to as Nonparty 1) or that there was a defect in the service procedure.

Rather, if Gap evidence 3, Gap evidence 5-1, Eul evidence 12 and Eul evidence 2 show the purport of the whole pleadings, the copy of the real estate register concerning the building of this case is changed from "Yansan-gu" to "Yansan-gu" around October 7, 1998, the address of non-party 1 (the address of non-party 2 omitted) was changed to "Yansan-gu (the address of non-party 3 omitted)" from "Yansan-gu" around October 7, 1998. The remaining head of South Korea shows that the non-party 1 (the address of non-party 1: the address of the non-party 1) was delivered from January 1, 200 to December 31, 200 for the period of occupation and use of the non-party 1 (the address of the non-party 1) to the changed non-party 1 (the address of the non-party 1 (the counter-party 1) and the fact that the plaintiff appears to be the non-party 1 (the counter-party 1).5).

(C) Therefore, there is no reason for the plaintiff's assertion on this part, which is premised on the fact that the imposition of indemnity is void as a matter of course of the payment notice of indemnity against the non-party 1 (the non-party 1).

3. Determination on the conjunctive claim

As to the plaintiff's conjunctive claim seeking confirmation of the absence of the indemnity obligation of this case, the defendant asserts that the plaintiff, not the other party to the disposition, has no legal interest in seeking confirmation of the absence of the indemnity obligation of this case.

Therefore, it is understood that the defendant has no direct interest with the defendant since the indemnity obligation of this case was imposed on the non-party 1 (the non-party 1). Ultimately, the defendant is seeking confirmation of the non-existence of the indemnity obligation of this case in order to release the seizure of this case on the ground that there is disadvantage such as the restriction on the disposal of the building of this case due to the seizure of this case. In case where the real estate owned by the non-party 1 is seized according to the procedure for disposition on default to collect the indemnity, the transferee of the real estate which became the registration of seizure after the transfer of the real estate has no direct and indirect interest with regard to the above seizure disposition or the public sale under the National Tax Collection Act which is based on the above seizure disposition and it does not have any direct and specific interest, and therefore there is no standing to seek the invalidation or nullification of the seizure disposition or public sale disposition (refer to Supreme Court Decision 96Nu3241 delivered on February 14, 197, etc.).

4. Conclusion

Therefore, the plaintiff's primary claim added in the trial is dismissed as it is without merit, and the conjunctive claim is dismissed as it is unlawful, and the judgment of the court of first instance is modified as above, and it is so decided as per Disposition.

[Attachment]

Judges Park Jae-soo (Presiding Judge)

1) The filing date of an application for change of the purport of the claim made on December 31, 2014 is September 19, 2013, but it appears to be a clerical error as of March 19, 2013.