logobeta
본 영문본은 리걸엔진의 AI 번역 엔진으로 번역되었습니다. 수정이 필요한 부분이 있는 경우 피드백 부탁드립니다.
arrow
(영문) 부산지방법원 동부지원 2007. 11. 08. 선고 2007가합1455 판결
법정기일과 근저당설정권자와의 우선순위 여부[국승]
Title

Whether the statutory date and the person holding the right to create the collateral security are priority;

Summary

If the registration of the establishment of a mortgage was cancelled to simply reduce the maximum debt amount and the mortgage was again created, the effect of the establishment of the first mortgage is not recognized, and the initial disposition allocated according to the dividend order established in the registry at the time of dividend shall be legitimate.

Related statutes

Article 35 of the Framework Act on National Taxes

Article 81 of the National Tax Collection Act

Text

1. The plaintiff's claim of this case is dismissed.

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

Purport of claim

1. Of the distribution schedule prepared on March 29, 2007 by the above court with respect to the case of an application for auction of real estate rent in ○○ District Court ○○○○○○○○ Branch 2006, 7698, 26,746,618 won of the amount of dividends to the defendant and distributed dividends of KRW 23,802,427 won to the plaintiff 50,549,045 won;

2. Of the distribution schedule prepared on March 29, 2007 by the above court with respect to the case of an application for auction of real estate rent in ○○ District Court ○○○○○○○○ Branch 2006, 7704, around 77,706,212 won to the defendant and distributed dividends of KRW 105,659,638 won to the plaintiff, among the distribution schedule prepared on March 29, 2007;

3. Of the distribution schedule prepared by the above court on March 29, 2007, the deletion of KRW 54,872,292 against the defendant in relation to the case of an application for auction of real estate rent as set forth in ○○ District Court ○○○○○○ Branch 2006, 7711, it is corrected that KRW 48,832,106 should be distributed to the plaintiff 103,704,398;

4. Of the distribution schedule prepared on March 29, 2007 by the above court with respect to the case of applying for an auction of real estate rent in ○○ District Court ○○○○○○○ Branch 2006, 7728, the deletion of KRW 26,748,703 of the amount of dividends against the Defendant and distribution of KRW 23,804,282 of the amount of dividends against the Plaintiff 50,552,985 of the amount of dividends to the Plaintiff;

5. Of the distribution schedule prepared on March 29, 2007 by the above court with respect to the case of an application for auction of real estate rent as set forth in ○○ District Court ○○○○○○○○ Branch 2006, 7735, the deletion of the amount of dividends to the Defendant KRW 27,267,652, and distribution of KRW 24,266,107 to the Plaintiff KRW 51,53,759;

6. Of the distribution schedule prepared by the above court on March 29, 2007, the deletion of 27,787,896 won against the defendant from among the distribution schedule prepared by the above court on March 29, 2007 and distribution of 24,729,083 won against the plaintiff as dividends of 52,516,979 won against the plaintiff;

7. Of the distribution schedule prepared on March 29, 2007 by the above court with respect to the case of an application for auction of real estate rent as set forth in ○○ District Court ○○○○○○○○ Branch 2006, 7759, the deletion of 27,818,060 won of the amount of dividends against the Defendant and distribution of 24,75,927 won of the amount of dividends against the Plaintiff at KRW 52,573,987;

8. Of the distribution schedule prepared on March 29, 2007 by the above court with respect to the case of an application for auction of real estate rent as set forth in ○○ District Court ○○○○○○ Branch 2006, 7766, KRW 27,795,176, the amount of dividends against the Defendant is deleted, and the amount of dividends of KRW 24,735,563 to the Plaintiff is distributed KRW 52,530,739;

9. Of the distribution schedule prepared on March 29, 2007 by the above court with regard to the case of applying for an auction for a real estate auction at ○○ District Court ○○○○○○ Branch 2006, 7780, the amount of dividends to the Defendant is deleted KRW 25,475,111, and the amount of dividends to the Plaintiff is distributed KRW 22,670,883,883, the amount of dividends to the Plaintiff is KRW 48,145,994; 10. 26,863,124, among the distribution schedule prepared on March 29, 207 by the above court, the amount of dividends to the Defendant is deleted and distributed KRW 23,906,108,50,769,232, to the Plaintiff; and

11. Of the distribution schedule prepared on March 29, 2007 by the above court with respect to the case of an application for auction of real estate rent in ○○ District Court ○○○○○○○○ Branch 2006taeng7803, it is corrected that the amount of dividends to the defendant was deleted KRW 26,057,98, and distributed KRW 23,189,59,000 to the plaintiff 49,247,587;

12. Of the distribution schedule prepared on March 29, 2007 by the above court with respect to the case of an application for auction of real estate rent in ○○ District Court ○○○○○○○○ Branch 2006, 7810, it is corrected to delete KRW 26,276,128 of the amount of dividends against the Defendant and distribute KRW 23,383,727 to the Plaintiff KRW 49,659,855 of the amount of dividends against the Plaintiff;

13. Of the dividend table prepared by the above court on March 29, 2007, the deletion of KRW 53,761,466 to the defendant in relation to the case of an application for auction of real estate rent in ○○ District Court ○○○○○○○ Branch 2006, 7827, and the distribution amount of KRW 47,843,554 to the plaintiff shall be corrected to distribute KRW 101,605,020 to the plaintiff.

Reasons

1. Basic facts

The following facts are not disputed between the parties, or acknowledged in full view of Gap evidence 1-1-13, Gap evidence 2, Eul evidence 1-1-1-15, Eul evidence 2, Eul evidence 2, witness ○○, testimony of ○○, and the whole purport of arguments.

A. From July 2002 to March 2004, the Plaintiff extended a loan to the winners of ○○○○○○○○-dong ○○○○○○○○-ground officetels, and the said loan guaranteed the said ○○○○○○○ Office’s executor and ○○ Construction Co., Ltd. (hereinafter “○○○○ Construction”).

B. Although ○○○ Construction completed the registration of ownership preservation on March 25, 2004 on the instant officetel, some buyers failed to obtain the registration of ownership transfer because they failed to pay any balance. On March 25, 2004, the Plaintiff completed the registration of ownership creation (the first collateral mortgage) of the debtor ○○ Construction and the maximum debt amount of 11 billion won as a collective security against the 178 households that failed to transfer the ownership for the purpose of preserving the loan claims.

C. The Plaintiff demanded ○○○ Construction to set the maximum debt amount of the right to collateral security at 120% compared to the loan amount per each household. As a result, only 15 households among the buyers of the right to collateral security (hereinafter the instant officetel), the registration of creation of the right to collateral security, which is a joint security interest, was cancelled. On December 29, 2004, the registration of creation of the right to collateral security (the second collateral security) was again completed, which was reduced to KRW 65,00,000 to KRW 69,000,000 for each household as separate security of the above 15 households.

D. As ○○ Construction did not pay KRW 460,00,000 of value-added tax on KRW 4,200,000,000 of value-added tax, which was sold to ○○○○ Construction Co., Ltd. as a customer, the Defendant had completed the registration of attachment on the instant officetel as a cause of delinquency in payment of national taxes under No. 8138 of the receipt of 2005, 1,31.

E. After that, there was a decision to commence voluntary auction on the instant officetel, and on March 29, 2007, the Defendant received the first-order distribution on December 1, 2004 at the statutory due date of national tax in each of the instant officetels distribution procedures.

2. The parties' assertion

A. The plaintiff's assertion

The plaintiff, in order to carry forward the time of payment of value-added tax for the third and fourth quarter of 2004, caused the report of value-added tax in bad faith, and caused the defendant to be exposed to and pay the tax, and requested the defendant to postpone and pay the tax on the ○○ Tax Office under the defendant, and the ○○ Tax Office decided to approve the installment payment by reducing the maximum amount of the tax payable for the establishment of a mortgage over the instant officetel in the third quarter of 2004 by reducing the maximum amount of the tax payable for the establishment of a mortgage over the instant officetel so that the amount of KRW 150,00,000 may be seized. Therefore, during the process of reducing the rate of the maximum amount of the tax payable for the instant officetel without changing the actual amount of the loan, the registration of reduction under the current registration law was not adopted, but the registration of the establishment of a mortgage is not completed again.

As above, at the time of cancelling the registration of the first collateral mortgage creation and again completing the registration of the second collateral mortgage creation, the Plaintiff and the genuine intent of the ○○ Tax Office at the time of completing the registration of the second collateral creation intends to reduce the amount of the establishment of collateral security to the amount of loans per household and appropriate the remainder to the Plaintiff’s claims for the amount of taxes at ○○ Tax Office. Therefore, upon recognizing the validity of the registration of the first collateral security establishment completed on June 17, 2004, each distribution to the Defendant ought to be deleted and the dividends to the Plaintiff

B. Defendant’s assertion

In regard to this, the Defendant asserted that each of the instant dividends was duly made in accordance with the dividend order, since the Plaintiff registered the creation of a collateral security on June 17, 2004 but the auction for the instant officetels was conducted, and the sale price was distributed, only the registration for the establishment of a collateral security was cancelled, and there was only the registration for the establishment of a collateral security on December 29, 2004, which was later as of December 29, 2004.

3. Determination

In the event of seizure based on a tax claim that has become due on the statutory due date and a tax claim that has become due after the date of establishment of the security right with respect to the real estate on which the security right has been established, the priority between the tax claim and the security right except for the relevant tax shall be determined by the statutory due date and the date of establishment of the security right (Supreme Court Decision 2005Du9088 Decided November 24, 2005), and the security right holder of the security right shall continue to continue to exist in the register until the dividend is made in the auction procedure, except in extenuating circumstances.

Therefore, with respect to the instant case, the statutory due date for the instant tax claim was December 1, 2004, and the Plaintiff’s registration for the creation of the first priority mortgage was cancelled on June 17, 2004 with respect to the instant officetel, and the fact that the registration for the establishment of the second priority mortgage was again made on December 29, 2004 is as seen above. Each of the instant dividends was duly made in accordance with the distribution order, and even if there were grounds as alleged by the Plaintiff in the process of cancelling and establishing the first priority mortgage and the second priority mortgage, it cannot be said that the relevant grounds alone misleads each of the instant dividends.

In addition, as alleged by the plaintiff, the reason why the registration of creation of the first collateral mortgage was cancelled on June 17, 2004 and the second collateral collateral mortgage was registered again on December 29, 2004, again, in the course of adjusting the maximum amount of the debt, cannot be registered in the case of joint collateral under the current registration law, and such cancellation and re-registration was impossible, and there is no evidence to prove that the ○○ Tax Office, ○○ Bank, and ○○ Construction agreed to appropriate the disposition price of the instant officetel to the Plaintiff’s loan by the buyer, and that the remaining portion was appropriated to the delinquent tax amount.

4. Conclusion

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

arrow