2014Guhap50743 Nullification of a seizure disposition

A

The Minister of Culture, Sports and Tourism

August 14, 2014

September 25, 2014

1. All of the Plaintiff’s claims are dismissed. 2. Costs of lawsuit are assessed against the Plaintiff.

The attachment disposition taken by the Defendant on August 31, 200 with respect to the size of 608 square meters prior to Chungcheongnam-si on August 31, 200 and the attachment disposition on May 23, 2007 with respect to the area of 330 square meters equal to that taken by the Defendant on May 23, 2007.

1. Details of the disposition;

(a) Possession and ownership relationship;

1) The Plaintiff, along with wife D, cultivated crops, etc. while operating a restaurant in part of each land of the F-river 20,92 meters (hereinafter referred to as “the land of this case”) and G river 939 meters (hereinafter referred to as “the land of this case”) and in the building and facilities located in the G river 939 meters (hereinafter referred to as “the third land”).

2) On February 19, 1986, Republic of Korea completed each registration of preservation of ownership on lands Nos. 1 and 3 of this case, and at the time, the management agency of each of the above lands was constructed, but on February 12, 1996, the management agency was changed to the Ministry of Culture and Sports, and the name of the management agency was changed to the defendant as a result of the government change. Korea completed the registration of preservation of ownership on lands No. 2 of this case on June 14, 1984. At the time, the management agency completed the registration of preservation of ownership, but at the time of construction, the management agency was changed to the Ministry of Culture and Sports and the Ministry of Culture and Sports on March 6, 1993, and thereafter, the management agency was changed to the Ministry of Culture and Sports and the Ministry of Culture and Sports on March 20, 1993

was changed to that.

(b) Disposition of imposing indemnity;

1) On May 7, 1999, the Defendant imposed KRW 3,752 meters among the instant land No. 1 from April 30, 1996 to December 31, 1998 (Provided, That 3,31 meters among them shall be calculated from January 1, 1997), KRW 1,576 out of the instant land No. 2, and KRW 9,688,790 on the ground that the Plaintiff occupied 703 meters from the instant land No. 3 without permission (hereinafter referred to as the “instant first imposition disposition of indemnity”) on the Plaintiff on October 22, 200, the Defendant imposed KRW 3,752 from April 30, 199 to December 31, 198 (the period shall be calculated from January 1, 1997; 300m from the instant land to the date of imposition of indemnity; and 31,194m from the instant land to the date of imposition of indemnity 308m from the instant land No. 13197.

3) On December 1, 2005, the Defendant: (a) on the ground that the Plaintiff occupied the land of this case 4,301m from January 1, 2003 to July 31, 2004; (b) 789m of the land of this case; and (c) 304m of the land of this case 30m of the land of this case without permission during the period from January 1, 2003 to July 31, 2004; (c) on the ground that the Plaintiff occupied the land of this case 53m of the land of this case from August 1, 2004 to November 30, 205; (d) on the ground that the Plaintiff occupied the land of this case 22,606,30m of the land of this case without permission, 28m of the land of this case from among the land of this case 3m of this case without permission (hereinafter referred to as “disposition 3rd”).

(c) Attachment disposition;

1) As the Plaintiff failed to pay the first indemnity and its late payment charges, the Defendant prepared a attachment report on the B B 608m prior to the city of Nam-si owned by the Plaintiff on August 31, 200, and entrusted the registration of attachment on the same day, the registration of attachment was completed on August 31, 200 by the Suwon-nam Branch of the Suwon District Court (hereinafter “the first attachment disposition”).

2) The Defendant did not pay the damages for the second and third indemnities of this case and the late payment charges for them. On May 17, 2007, the Defendant prepared a attachment report as to CJ 330 meters, which was owned by the Plaintiff, and on the same day, entrusted the registration of attachment on the same day, the registration of attachment was completed on May 23, 2007 (hereinafter “the second attachment disposition of this case”). The registration of attachment was completed on May 23, 2007 as the receipt of No. 11343 by the Suwon District Court, Sung-nam Branch Office, Sungnam Branch Office (hereinafter “the second attachment disposition of this case”). The administrative litigation as to each of the instant damages

1) Meanwhile, on February 8, 200 after the first imposition of indemnity, the Defendant calculated the indemnity amounting to KRW 7,997,100 from January 1, 199 to February 31, 199, and notified the Plaintiff of the reduction of KRW 7,97,100 on March 9, 201 to KRW 5,047,40, and on February 8, 2001, the lower court rejected the Plaintiff’s first imposition of indemnity amounting to KRW 9,68,790 from March 9, 200 to February 7, 201 (the first imposition of indemnity amounting to KRW 1,34,600 from March 9, 200 to February 12, 201, the lower court rejected the Plaintiff’s claim for cancellation of the pertinent imposition of indemnity amounting to KRW 305,00 on the ground of the Seoul Administrative Court’s final imposition of indemnity amounting to KRW 201,201.

3) On March 30, 2006, the Plaintiff filed a lawsuit with the Seoul Administrative Court seeking confirmation of invalidity of the part exceeding KRW 29,149,760 of the imposition disposition of KRW 45,068,860 of the instant secondary indemnity, and a lawsuit seeking revocation of the portion exceeding KRW 22,606,30 of the amount exceeding KRW 22,606,30 of the instant third indemnity (2006Guhap12685). During the period from January 1, 2003 to November 30, 2005, the Plaintiff’s claim for revocation of the imposition of indemnity exceeding KRW 288 square meters of the instant secondary indemnity and KRW 214 square meters of the instant land, and KRW 289,760 of the instant third land was dismissed on September 15, 2006 (Seoul High Court’s dismissal of the Plaintiff’s claim for revocation of the imposition disposition of indemnity exceeding KRW 374,297,2970 of the instant indemnity (the instant appeal).207).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, Eul evidence Nos. 1, 2, 4, and 7 (including each number), and the purport of the whole pleadings

2. Whether each of the attachment dispositions of this case is legitimate

A. The plaintiff's assertion

1) The imposition of indemnity on the ground of illegal occupancy of each of the instant lands must be imposed on the possessor. The Plaintiff’s wife only occupied each of the instant lands and did not have any possession by the Plaintiff. Therefore, each of the instant imposition of indemnity on a different premise is null and void, and each of the instant attachment dispositions based thereon is null and void (hereinafter “instant allegation 1”).

2) The instant first disposition of imposition of indemnities, which served as the basis for the instant first disposition of seizure, was revoked ex officio due to the instant second disposition of imposition of indemnities, and became retroactively null and void. Therefore, the instant first disposition of seizure is null and void as it was conducted without any grounds (hereinafter “instant second assertion”).

3) The judgment of revocation was rendered by the court with respect to the part of the second imposition disposition of indemnity in this case, which became the basis of the second imposition of indemnity in this case, and the second imposition of indemnity in this case becomes retroactively null and void in accordance with the legal principles of partial invalidation. As such, the second imposition of indemnity in this case becomes retroactively null and void as a result, without any grounds. If the second imposition of indemnity in this case becomes null and void only with respect to the part on which the judgment of revocation became final and conclusive, the second attachment disposition in this case concerning the said part is null and void (hereinafter referred to as the “third assertion”).

B. Relevant statutes

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

C. Determination

1) Determination as to the assertion of this case 1

According to the above facts, since the plaintiff occupied a part of each of the lands of this case independently or together with the plaintiff's wife, in light of each of the statements in the evidence Nos. 3, 5, 6, and 8 (including a Serial number), each of the statements in the evidence No. 3-1 to No. 4-2 cannot be denied the above fact of the plaintiff's possession. The plaintiff's assertion on this different premise is without merit.

2) Determination on the instant assertion 2

A) As long as there is no delay in the taxpayer’s tax liability and there is no delay in the tax amount in arrears, the attachment disposition is deemed to be an invalidation disposition with a grave and obvious defect in the subject of the attachment (see Supreme Court Decision 86Nu61, Jul. 8, 1986). However, if the delinquent tax amount still remains, it is reasonable to deem that the attachment disposition based on the delinquent tax amount is legally effective. The above legal principle also applies to the imposition disposition of indemnity and the attachment disposition based on which it is based on the illegal occupancy of public property as in this case.

B) In full view of the following circumstances, based on the above legal principles, the second imposition of indemnity in this case is naturally invalidated and its subsequent attachment disposition is not null and void. Thus, the Plaintiff’s assertion on this part is without merit, which is premised on the premise that the first imposition of indemnity in this case is null and void as a matter of course.

(1) On February 8, 2001, the first imposition disposition of indemnity (the first imposition disposition of indemnity: from January 1, 1999 to December 31, 199) and the first imposition disposition of indemnity of this case became final and conclusive (Seoul Administrative Court 2001Gu6202), and after the first imposition disposition of indemnity of this case (the first imposition disposition period: from April 30, 1996 to December 31, 198), the second imposition disposition of indemnity of this case including the first imposition disposition period (the first imposition disposition period: the object period: from April 30, 1996 to December 31, 2002 to December 31, 199) and the first imposition disposition of indemnity of this case became invalid as a matter of course, it is difficult to view that the first imposition disposition of indemnity of this case became invalid as a replacement of the second imposition disposition of indemnity of this case.

(2) Even if the first disposition of imposing indemnity of this case was revoked ex officio, it can be seen that the disposition of imposing indemnity of this case constitutes "when the need for seizure becomes unnecessary due to the cancellation of imposition, which is the grounds for cancellation of seizure under Article 53 (1) 1 of the National Tax Collection Act, or other reasons," and considering the purport of the above provision on cancellation of attachment, it is difficult to deem that the disposition of seizure based on the above reasons is void as a matter of law.

3) Determination as to the argument of this case 3

In full view of the following circumstances revealed in light of the purport of the entire pleadings, even if the judgment revoking part of the disposition imposing the third indemnity of this case became final and conclusive, the attachment disposition does not become null and void in whole or in part. Thus, the Plaintiff’s assertion on the premise that the second attachment disposition of this case is null and void in whole or in part is without merit.

(1) Even if the judgment revoking the part of the disposition imposing the second and third indemnities among the disposition imposing the second and third indemnities of this case, which served as the basis of the second and third indemnities of this case, becomes final and conclusive, as long as part of the disposition imposing the second and third indemnities of this case imposed by the Defendant on the Plaintiff remains effective, since the Plaintiff’s obligation to pay the second and third indemnities of this case is not all extinguished, the Defendant may proceed with the disposition imposing the second and third indemnities of this case on the basis of only the obligation to pay the remainder of the indemnity and late payment penalty. Accordingly, the second and third indemnities of this case, which are effective for collecting part of the second and third indemnities of this case, cannot be deemed as null and void automatically.

(2) Even if the second attachment disposition of this case was partially revoked due to its nature as an indivisible disposition, a part of the attachment disposition does not become null and void. However, it is only limited to the amount allocated to the defendant in the distribution procedure following a public auction based on the attachment disposition.

3. Conclusion

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

The judge of the presiding judge;

Judges Cho Jae-chul

Judges Kim Jae-sung

1) The area on the registry of the instant land 1 is 16,589m, but the actual area is 16,249m.