[1] In a case where the imposition and attachment disposition of excess ownership charges and the attachment registration based thereon are made prior to the decision of unconstitutionality on the whole of the former Act on the Ownership of Housing Site, and each of the above dispositions becomes final and conclusive, whether the subsequent procedures for disposition on default may proceed after the decision of unconstitutionality (negative), and whether dividends may be paid at the auction procedure commenced by another

[2] In a case where the collection of delinquent charges is impossible due to the decision of unconstitutionality as to the former Act on the Ownership of Housing Site, and the seizure disposition is cancelled, whether Article 53(1) of the National Tax Collection Act concerning the cancellation of attachment is applied mutatis mutandis (affirmative)

[3] The nature of the provision of Article 53 (1) 1 of the National Tax Collection Act, which provides the grounds for the requisite grounds for revoking seizure (i.e., exceptional provision) and Article 53 (1) 1 of the same Act, where the need for seizure becomes unnecessary due to other reasons, whether the grounds for seizure or the need for continuation of seizure is included in cases where the subsequent disposition for arrears cannot be carried out due to the decision of unconstitutionality on the grounds of the tax disposition and the procedure for disposition for disposition on default, making it impossible to cover the delinquent tax amount

[1] Article 30 of the former Act on the Ownership of Housing Site (repealed by Act No. 5571 of September 19, 198) provides that "if a person liable to pay charges fails to fully pay the charges, additional dues, etc. by the designated deadline after receiving a demand notice, the Minister of Construction and Transportation may collect them in the same manner as delinquent national taxes are collected pursuant to the provisions on disposition on default of national taxes in Chapter III of the National Tax Collection Act." However, the above provisions of Article 30 became invalid from the date of the decision on unconstitutionality of all the same Act as of April 29, 1999, and further the act of maintaining enforcement or enforcement of an administrative disposition based on the unconstitutional law is not permitted as a violation of the binding force of the decision on unconstitutionality. In addition, there are no other legal grounds for compulsory collection of delinquent charges. Thus, even if each disposition already becomes final and conclusive prior to the decision on unconstitutionality of the charges, the subsequent disposition on distribution, a subsequent disposition on distribution, etc. shall not be made in the auction procedure.

[2] In principle, the excess ownership charges are not a kind of national tax, but a monetary burden imposed by the former Act on the Ownership of Housing Site (repealed by Act No. 5571 of Sep. 19, 198) and merely a means of compelling performance to achieve the purpose of the same Act, and the provisions of the Act on the National Taxes concerning the above charges shall not be applied or analogically applied to the above charges, in different nature from national tax, on the ground that Article 30 of the same Act becomes null and void according to the Constitutional Court's decision of unconstitutionality as to the same Act. However, if the cancellation of attachment based on the delinquent charges pursuant to Article 30 of the National Tax Collection Act, which was recognized under Article 30 of the same Act, does not recognize the cancellation of attachment pursuant to the provision of Article 53 (1) of the same Act, it becomes more likely to go against the constitutional order than before the decision of unconstitutionality is rendered, and thus the cancellation of attachment is subject to Article 53 (1) of the National Tax Collection Act by analogy.

[3] Article 53 (1) 1 of the National Tax Collection Act provides that "when the attachment becomes unnecessary due to the grounds for the necessary cancellation of the attachment, appropriation, suspension of the public auction, cancellation of the imposition, or other reasons". Since the payment, appropriation, suspension of the public auction, and cancellation of the imposition in this context are the examples of the reasons corresponding to "when the need for the attachment becomes unnecessary", "other reasons" refer not only to the cases where the tax liability becomes extinct as provided by the above legal reasons, or there is no surplus possibility to be appropriated for the delinquent tax amount even after the disposition for arrears is made, but also to the cases where the grounds for the attachment is lost or the necessity to continue the attachment becomes unnecessary due to the decision of unconstitutionality on the grounds of the tax disposition and the procedure for the disposition for the disposition for the arrears thereof.

[1] Article 30 of the former Act on the Ownership of Housing Site (repealed by Act No. 5571 of September 19, 1998), Article 24 of the National Tax Collection Act, Article 45 of the Constitutional Court Act / [2] Article 30 of the former Act on the Ownership of Housing Site (repealed by Act No. 5571 of September 19, 1998), Article 53 (1) of the National Tax Collection Act / [3] Article 30 of the former Act on the Ownership of Housing Site (repealed by Act No. 5571 of September 19, 198), Article 53 (1) 1 of the National Tax Collection Act

[1] [3] Supreme Court Decision 2002Du3317 (Gong2002, 1970) decided July 12, 2002 / [1] Constitutional Court Decision 94HunBa37 and 66 (Joint) decided April 29, 199 (HunGong34, 337) decided April 12, 2002 (Gong2002Da2294 decided April 12, 2002 (Gong202Sang, 1122), Supreme Court Decision 2001Du1925 decided June 28, 2002 (Gong202Ha, 1830), Supreme Court Decision 2002Du4372 decided August 23, 202 / [2] Supreme Court Decision 2009Du96379 decided Apr. 29, 209 (Gong19659 decided Apr. 29, 2005)

Plaintiff

The head of Seodaemun-gu Seoul Metropolitan Government

Seoul High Court Decision 2000Nu14087 delivered on March 16, 200

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

1. Article 30 of the former Act on the Ownership of Housing Site (amended by Act No. 5571 of Sep. 19, 1998, hereinafter referred to as the "Alternative Commercial Act") provides that "if a person liable for the payment of charges fails to pay the charges and additional dues in full by the designated deadline after receiving a demand notice, the Minister of Construction and Transportation may collect them in the same manner as delinquent national taxes are collected pursuant to the provisions on delinquent local taxes in Chapter III of the National Tax Collection Act." However, the above Article 30 was invalidated from the date of the decision of unconstitutionality of the entire Act on April 29, 199 as well as from the date of the date of the decision of unconstitutionality of the whole Act, and further the execution of administrative dispositions or the maintenance of executive force based on the unconstitutional Act violates the binding force of the decision of unconstitutionality, there is no other legal basis for compelling delinquent charges to be collected.

Therefore, even if the imposition of charges and the registration of attachment and the registration of attachment based thereon have already been made prior to the decision of unconstitutionality and each of the above dispositions became final and conclusive, it is not possible to proceed with the subsequent procedures for disposition on default, such as sale and distribution, which are separate administrative dispositions, after the decision of unconstitutionality, and unless there are special circumstances, the existing registration of attachment or request for delivery cannot be received dividends

In addition, Article 3 (3) of the Addenda of the former Act on the Abolition of the Housing Site Ownership (Act No. 5571 of Sep. 19, 1998, hereinafter referred to as the "Act on the Abolition of the Commercial Act") provides that "the previous provisions shall apply to the imposition, collection, etc. of charges imposed or to be imposed under the previous provisions as charges before December 31, 1997, which are charges that were imposed or to be imposed at the time of the enforcement of this Act." However, the supplementary provisions are based on the premise that the Act is constitutional, and as long as the decision of unconstitutionality for the whole of the Housing Act was made, the supplementary provisions are no longer applicable (see Supreme Court Decision 2002Da2294, Apr. 12, 2002).

The lower court, based on its adopted evidence, determined that the Defendant imposed 30,824,160 won for the year 193, 34,640 won for the 194, and 50,803,350 won for the 1995 portion for the 197-year portion for the 9-year portion for the 9-year portion for the 9-year portion for the 196-year portion for the 9-year portion for the 9-year portion for the 196-year portion for the 9-year portion for the 9-year portion for the 196-year portion for the 9-year portion for the 9-year portion for the 196-year portion for the 196-year portion for the 9-year portion for the 196-year portion for the 9-year portion for the 196-year portion for the 9-year portion for the 9-year portion for the 196-year portion for the 9-year portion for the 9-year portion for the 9-year portion for the 96-year portion.

In light of the above legal principles, the recognition and judgment of the court below is just, and there is no error of law by misapprehending the legal principles on the collection of "collection" under Paragraph 3 of the Addenda to the Door Commercial Act or the procedure for disposition on default.

2. Where a tax authority seizes a taxpayer's property as a part of a disposition to collect delinquent taxes, but thereafter a ground for cancellation under each subparagraph of Article 53 (1) of the National Tax Collection Act occurs, the head of a tax office shall release the attachment. A taxpayer and a person legally interested in the cancellation of the attachment may apply for the cancellation of attachment to the tax authority at any time unless a ground for cancellation of attachment exists. If the tax authority refuses a request for cancellation of attachment by a party, the other party may take the disposition of refusal against the disposition of cancellation (see Supreme Court Decision 95Nu15193, Dec. 20, 1996). The charges are monetary burdens imposed as a sanction for breach of duty under the Commercial Act, rather than a kind of national tax, and are merely an enforcement means to realize the objective of alternative commercial law, and thus, the provisions of the Act on National Taxes cannot be applied mutatis mutandis or applied by analogy to the above charges without permission for cancellation under Article 30 (1) of the Commercial Act, which is contrary to the Constitutional Court's decision of cancellation of attachment under Article 15 (2).

In light of the above legal principles in light of the facts of this case, the part of the court below's explanation as if the plaintiff could apply for the cancellation of attachment to the defendant by applying mutatis mutandis Article 53 (1) of the National Tax Collection Act is inappropriate, but its conclusion is justified in rejecting the defendant's assertion that the taxpayer did not have the right to request the cancellation of attachment, and that Article 53 (1) of the National Tax Collection Act shall not apply mutatis mutandis due to the decision of unconstitutionality under Article 30 of the selective Commercial Act, and there is no error of law by misapprehending the legal principles

3. Article 53 (1) 1 of the International Collection Act provides that "when the attachment is no longer necessary due to payment, appropriation, suspension of public auction, cancellation of the imposition, or any other reason as the reason for the necessary reason for the cancellation of the attachment." Since the payment, appropriation, suspension of public auction, or cancellation of the imposition is an example of the reasons corresponding to "when the need for the attachment becomes unnecessary", "other reasons" refers to the case where the tax liability becomes extinct as in the above legal reasons or where there is no possibility of surplus to be appropriated for the delinquent tax amount even after the disposition on default is made (see Supreme Court Decisions 95Nu5189 delivered on June 11, 1996, Supreme Court Decisions 95Nu15193 delivered on December 20, 196, and Supreme Court Decisions 95Nu15193 delivered on December 20, 196) and the grounds for the disposition on default and the decision on the unconstitutionality of statutes based on the procedure for the disposition on default, it should be deemed that the attachment is no longer necessary.

The lower court determined that the Defendant is liable to rescind the instant attachment inasmuch as it is unnecessary or impossible to collect the instant delinquent charges on the grounds that: (a) the effect of the instant attachment is limited to the instant delinquent charges that occurred after the registration of attachment under Article 47(2) of the National Tax Collection Act; (b) even if the imposition of charges and the subsequent disposition on attachment became final and conclusive prior to the decision of unconstitutionality as to the instant delinquent charges; (c) subsequent procedures for the disposition on default, such as public sale, are not possible to collect the delinquent charges after the decision of unconstitutionality; and (d) in this case where there are no special circumstances, the existing registration of attachment or the request for delivery cannot receive dividends from the auction procedure commenced by another person; and (e) in such a case, it is not necessary or impossible to collect the delinquent charges from the taxpayer voluntarily by continuing the effect of

In light of the above legal principles, the judgment of the court below is just and there is no error in the misapprehension of legal principles as to the grounds for cancellation of attachment under Article 53 (1) of the National Tax Collection Act.

In addition, as alleged by the defendant, even though the defendant can collect the plaintiff's delinquent charges by obtaining a separate title of debt due to a party suit or civil lawsuit, it is not possible to use the seizure of this case based on the above separate title of debt, which was conducted based on the seizure disposition as part of the procedure for disposition on default, as part of the procedure for disposition on default, and it is not permitted to have the defendant maintain the seizure before replacing it with other preservation measures on the seizure of this case, or until the commencement of compulsory execution by obtaining a separate title of debt. Thus, the defendant cannot refuse

4. Therefore, the defendant's appeal is dismissed and the costs of appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices who reviewed the appeal.

Justices Shin Shin-chul (Presiding Justice)