A. Purport of Article 9(4) of the former Inheritance Tax Act, and Article 5-2(2)2 and 3 of the Enforcement Decree of the same Act, and whether the above provision applies to cases where the taxpayer proves that the debtor set up a collateral security at the highest amount of secured debt, which is larger than the actual value of inherited property

(b) Reversion of the inherited property, in case where both wife and person who are the first inheritor have renounced inheritance; and

(c) Whether a disposition to allocate the proceeds of public sale, which preferentially allocates the proceeds of public sale to an heir of a mortgager than the secured claims which take precedence over national taxes, etc., deeming the inheritance tax imposed as the relevant

A. Article 9(4) of the former Inheritance Tax Act (amended by Act No. 4022 of Dec. 26, 198) and Article 5-2 subparags. 2 and 3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12567 of Dec. 31, 198) provide for the purport that the amount close to the market price shall be calculated by supplementing Article 9(1) of the same Act, which provides for the principle of market price. In the event of establishing a right to collateral, the maximum amount of the secured claim shall be determined within the scope of the real value of ordinary property, and if the maximum amount of the secured claim is higher than the amount calculated by other methods, the actual amount of the secured claim can be determined within the extent of the actual value of the ordinary property. Thus, in an exceptional case where a right to collateral security is established with a higher amount than the actual value of the property as the secured claim, there is a reasonable ground to view it as the actual

(b) Where both wife and persons who are the persons having the first inheritance waives inheritance, they shall be their successors as lineal descendants; and

C. Under Article 35 (1) 3 of the former Framework Act on National Taxes (amended by Act No. 4277 of Dec. 31, 190), claims secured by a mortgage which is specifically protected with respect to national taxes are interpreted to the effect that the relationship with the mortgagee at the time of the establishment of the mortgage is based on his/her duty to pay taxes. Even if the mortgagee dies and his/her heir was in arrears with national taxes, the eligibility for protection is not lost under the current law without special provisions. Thus, the inheritance tax which is a national tax imposed on his/her heir cannot be collected first because the deceased mortgager was not in arrears with the national tax imposed on his/her heir without any tax collection prior to the mortgage, but with regard to the concept and scope of the so-called "national tax or additional dues on his/her property" as the concept and scope of the said tax which takes precedence over the claims secured by the security right, and even if the above legal principle is not clear until the Supreme Court precedents were pronounced, it cannot be viewed that the above distribution of the inheritance tax is more objectively null and void.

A. Article 9(4) of the former Inheritance Tax Act (amended by Act No. 4022 of Dec. 26, 198); Article 5-2 subparag. 2 and subparag. 3(b) of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 12567 of Dec. 31, 198); Articles 100 and 1043(c) of the Civil Act; Article 35(1)3 of the former Framework Act on National Taxes (amended by Act No. 4277 of Dec. 31, 1990); Article 19 of the Administrative Litigation Act

A. Supreme Court en banc Decision 91Nu2137 delivered on March 23, 1993 (Gong1993Sang, 1312). Supreme Court Decision 88Meu8385 delivered on September 24, 1991 (Gong1991, 2589) decided Oct. 8, 1991 (Gong1991, 2670) 93Da49581 delivered on March 222, 1994 (Gong194Sang, 1313)

Choung Bank Co., Ltd., Ltd., Kim & Kim, Attorneys Kim In-con et al., Counsel for the defendant-appellant

Korea

Seoul High Court Decision 93Na29626 delivered on January 14, 1994

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The supplementary appellate brief submitted after the lapse of the grounds of appeal and the period are also considered to supplement the grounds of appeal.

1. On the first ground for appeal

In comparison with the lower judgment’s records, the lower court erred by misapprehending the legal doctrine as to the Plaintiff’s assertion that the disposition of imposing inheritance tax in this case has a grave and apparent defect in the assessment method of inherited property and the taxable value of inherited property.

However, Article 9(4) of the former Inheritance Tax Act (amended by Presidential Decree No. 4022 of Dec. 26, 198) and Article 5-2 subparag. 2 and 3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12567 of Dec. 31, 1988) provide that with respect to the value of the property on which a joint collateral security is established, the value of the property shall be the larger of the amount calculated by dividing the maximum amount of the claim secured by the property at the time of commencing the inheritance by the market price or the rate, or by the standard market price under the Local Tax Act, whichever is the higher. The above provision provides, in order to supplement the provision of Article 9(1) of the same Act that provides for the principle of market price, that if the maximum amount of the claim secured by the joint collateral is higher than the actual price of the property, the actual maximum amount of the claim secured by the mortgage shall be deemed to be the maximum amount of claims actually in the transaction. Thus, if the maximum amount of the claim secured claim is established by 3.

However, according to the records, the assessment value of the tax authority claiming a land price refers to the value assessed by the method of multiple rates under Article 9(1) of the Inheritance Tax Act and Article 5(2)1 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 12993 of May 1, 190), or the assessment value under the Local Tax Act, which is assessed by the standard amount of the real value of the real estate in this case. It does not mean that the real value of the real estate in this case does not mean the actual value of the real estate in this case, and in this case where no proof is established as to the establishment of the right to collateral security with the amount of the real value of the real estate in this case, the disposition of the tax authority with the amount calculated in proportion to the maximum debt amount

Therefore, the error of omission of judgment by the court below does not affect the conclusion of the judgment, and it cannot be said that it constitutes an error of law as a ground for reversal of judgment. The argument is without merit.

2. On the second ground for appeal

If both the wife and the first inheritor have renounced inheritance, they shall be the heir as a lineal descendant. Therefore, the judgment of the court below to the same purport is correct, and there is no illegality in the misapprehension of legal principles as to the renunciation of inheritance. There is no reason for this issue.

3. On the third and fourth grounds

According to the reasoning of the judgment below, the court below determined that the legal principle on whether the above inheritance tax has priority over the claims based on the right to collateral security when the person who created the right to collateral security dies after the completion of the registration of establishment of the right to collateral security and his heir is subject to an inheritance tax imposition is not always clear even in the court. However, considering that the public sale price allocation disposition in this case was made by an administrative agency other than the court around December 1986 when the former Framework Act on National Taxes was applied, even if the disposition that preferentially distributed the above inheritance tax was illegal disposition in violation of the proviso of Article 35(1)3 of the former Framework Act on National Taxes due to significant and apparent defects, it can not

In order for an administrative disposition to be deemed null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and the defect is a serious violation of the important part of the law, and it must be objectively obvious (see, e.g., Supreme Court Decision 93Nu1432, Dec. 7, 1993).

However, Article 35 (1) 3 of the former Framework Act on National Taxes (amended by Act No. 4277 of Dec. 31, 1990) is interpreted as a provision to the effect that a claim secured by a mortgage that is specifically protected with respect to national taxes is based on the relationship with the mortgagee at the time of the establishment of the mortgage based on his/her duty to pay taxes. Even if the mortgagee dies and his/her heir was in arrears with national taxes, the eligibility for protection is not lost under the current law without special provisions. Thus, the inheritance tax, which is a national tax imposed on his/her heir in the absence of any tax collection prior to a mortgage, cannot be collected first because it is a national tax (see, e.g., Supreme Court Decisions 8Da8385, Oct. 8, 191; 8Da105, Oct. 24, 1991; 200Da83981, Mar. 22, 1994).

In the same purport, the decision of the court below that the disposition to distribute the proceeds of the public sale of this case is not null and void as a matter of law, and there is no error in the misapprehension of legal principles as to the invalidation of the administrative disposition. We also have

4. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Yong-sik (Presiding Justice)