Distribution of inheritance tax by priority on the secured claim of the right to collateral security has been obtained without legal grounds.

If a mortgagee dies while there is no tax in arrears to be collected prior to the secured claim, the inheritance tax imposed on the inheritor cannot be collected prior to the tax in question, and the inheritance tax is distributed prior to the secured claim of the right to collateral at the auction procedure without any legal ground.

2012 Gohap 514036 Undue gains

AA Bank, Inc.

Korea

September 25, 2012

October 18, 2012

1. The defendant shall pay to the plaintiff 00 won with 5% interest per annum from December 22, 2011 to August 14, 2012, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 00 won with 20% interest per annum from December 22, 2011 to the day of complete payment.

1. Basic facts

A. The Plaintiff: (a) lent KRW 000 on January 28, 2005, KRW 000 on November 28, 2002, and on July 11, 2005, the Plaintiff concluded a mortgage agreement with respect to the building title No. 000 of the Dongjak-gu Seoul OOE No. 000-OE No. 00000 (hereinafter referred to as “the building title of this case”) owned by YellowB to secure all the obligations to be borne by YellowB against the Plaintiff at present or in the future; (b) concluded a mortgage agreement with the maximum debt amount of KRW 00 on the building title No. 30689, Seoul Central District Court received the building title of this case.

B. On July 9, 2010, the YellowB delayed the repayment of the above loan, the Plaintiff filed an application for auction of real estate on the instant building with the Seoul Central District Court Decision 2010 another 1935, and the said court rendered a voluntary decision to commence auction on July 9, 2010.

". On May 5, 2008, YellowB died, and succeeded to the building in this case to Non-Party CC, HanE, and HF (hereinafter referred to as "YCC et al."), and on January 2, 2010, GCC imposed inheritance tax of KRW 00 on non-party 3 and then issued a tax notice at that time. After that, on July 20, 2010, NCC and three other parties were delinquent in inheritance tax, and registration was made by the disposition of national tax in arrears on the building in this case on July 20, 2010. The Plaintiff demanded the distribution of KRW 00 as a mortgagee at the above auction, and the Defendant requested the delivery of KRW 00 on non-party 3 and others.

E. On November 24, 2011, the above auction court: (a) deemed the pertinent inheritance tax amount of KRW 000 as the corresponding tax amount; (b) distributed KRW 000 to the Dongjak-gu, with the first priority of KRW 00; and (c) KRW 000 to the Dongjak-gu, with the second priority of KRW 300 to the Plaintiff.

[Ground of Recognition] The facts without dispute, Gap evidence 1, 2, 5 through 9, and Eul evidence 1 to 4, and the purport of the whole pleadings

2. Referral and Determination

A. The parties' assertion

As the Plaintiff had already established the instant collateral prior to the date of sending a notice of inheritance tax to YCC and 3 others, the auction law clerk, despite having priority over the above inheritance tax, asserts that the Plaintiff first distributed the amount of KRW 000 to the Defendant who should receive dividends, and sought the return of KRW 00 to the Defendant. In this regard, the Defendant, and the above inheritance tax is the corresponding tax under Article 35 of the Framework Act on National Taxes, which shall prevail over the instant collateral.

B. Determination

The inheritance tax, which is a national tax, imposed on the inheritor, may not be collected in preference to the other inheritor in the event that the person who established the mortgage, dies without any default on the tax to be collected prior to the secured debt (see Supreme Court Decision 96Da55204, May 9, 1997). Accordingly, on November 24, 2011, the Defendant, at the above auction procedure, received the above inheritance tax prior to the secured debt of the instant right to collateral, gains a benefit without any legal ground and thereby incurred a loss to the Plaintiff. Thus, the Defendant is obligated to return 00 won to the Plaintiff (the maximum debt amount of the instant right to collateral security of the Plaintiff - the amount of the Plaintiff distributed to the Plaintiff 00 won).

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 00 won as above and as from December 22, 201, the following day after the delivery date of a copy of the complaint in this case, to August 10, 2012, the delivery date of a copy of the application for modification of the claim and the cause of claim as of August 14, 2012, and 20% per annum as stipulated by the Civil Act, and as of August 14, 2012, from the next day to the day of full payment, damages for delay by 20% per annum as stipulated by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc., the plaintiff's claim in this case is accepted within the scope of the above recognition, and the remaining claims are dismissed as