Suwon District Court 2012dan4324 (O26 December 2013)

A lawsuit of demurrer against distribution is filed.

The plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Article 80 of the National Tax Collection Act

2013Na50702 Demurrer against distribution

OraA

Korea

Suwon District Court Decision 2012Da43324 Decided February 26, 2013

October 24, 2013

November 21, 2013

1. The plaintiff's appeal is dismissed.

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

The judgment of the court of first instance is revoked. With respect to auction cases for partition of co-owned property, the above court's judgment is revoked. As to the distribution table prepared on September 21, 201, which was prepared by the above court on September 21, 2012, the amount of dividends to the defendant shall be changed to OOO, and the amount of dividends to the plaintiff shall be changed to OOOOO (the entry in the claim of the judgment of the court of first instance is deemed to be erroneous due to error).

1. Basic facts

A. OO also shared 1/6 of EOB, ECC, ED, EE, EE, and EF, respectively, at the respective rates of 1/24 EG, EG, EM, EH, EH, and this II, respectively. On August 3, 2011, the Plaintiff completed the provisional registration of the rightF’s right to claim partial transfer of shares (hereinafter “the instant provisional registration”).

B. On June 15, 201, the FF filed a lawsuit claiming partition of co-owned property against other co-owners as to the instant real estate (Korean Government District Court Decision 2010Da56777) and received a decision to recommend reconciliation that "the real estate shall auction the instant real estate and distribute the remainder remaining after subtracting the auction expense from the proceeds of sale in proportion to the share ratio" (the above decision became final and conclusive at that time). On October 5, 201, the F applied for auction based on the settlement recommendation decision as to the instant real estate, and the registration of voluntary decision to commence auction was completed on October 5, 201 by the Government District Court Decision 201Mo32146, the registration of voluntary decision to commence auction was completed (hereinafter referred to as the "auction of this case").

C. On October 19, 2011, the Defendant completed the attachment registration with respect to the FF share among the instant real estate, and on October 26, 201, issued a delivery office as to the total amount of global income tax and value-added tax on the FF as indicated in the table below. Meanwhile, on October 26, 2011, the Plaintiff filed an application for demand for distribution on October 31, 201, while the instant provisional registration was a provisional registration to secure the Plaintiff’s right FF’s claim, at the instant auction procedure, the Plaintiff filed an application for demand for distribution on August 31, 2012.

See Table 3 of the Court Decision

D. In the instant auction procedure, on September 21, 2012, the executing court prepared a distribution schedule stating that the OOOOO members equivalent to the ratio of the shares in the KF (1/6) among the OO members who are actual dividends other than the execution expenses, are distributed to the Defendant who is the seizure authority and the distribution authority. The Plaintiff appeared on the aforementioned distribution date and raised an objection against the total amount of the dividends to the Defendant on the same day.

E. After August 28, 2012, the registration of cancellation of the provisional registration of this case was completed on the ground of sale by auction of this case.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4 through 8, 10, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. The plaintiff's assertion

The auction for partition of co-owned property, such as the auction of this case, constitutes a formal auction for realization, and thus, the burden of limited real rights, etc. existing on sold real estate including the provisional registration of this case should be taken over to the buyer as they are, and as long as the above burden is extinguished, it is reasonable to first distribute the amount of the claim against the Plaintiff’s rightF after the provisional registration of this case to the Defendant on the ground

3. Determination

A. In the case of an auction for partition of co-owned property, Article 274(1) of the Civil Execution Act provides that "the auction under the lien and the auction for realization pursuant to the provisions of the Civil Act, the Commercial Act, and other Acts shall be conducted in accordance with the same manner as the auction to exercise the security right." Thus, in the auction for partition of co-owned property conducted pursuant to Article 269 of the Civil Act, whether the purchaser acquires full ownership by extinguishing the burden of the real estate above the target real property, or whether the purchaser takes the so-called acquiring the burden on the target real property or not, shall be determined by taking into account the purpose and purpose of the auction, the purpose and nature of the auction, the purport of the substantive law based on which the auction is based, the interests of the owner, the creditor and the purchaser, etc.

However, Article 91(2) through (5) of the Civil Execution Act provides that all mortgages on sold real estate shall be extinguished by sale, and superficies, easements, chonsegwon, and registered leases shall be extinguished by sale if they cannot oppose claims for mortgaged, attached, or provisional seizure: Provided, That they may oppose claims for mortgaged, attached, or provisional seizure among superficies, easements, chonsegwon, and registered leases, or they shall be acquired by a purchaser without extinguishment." In addition, Article 268 of the same Act provides that the auction shall apply mutatis mutandis to auction proceedings for exercising a security right and auction proceedings for exercising a security right (in the case of real estate whose provisional registration as security is completed, the right to provisional registration as security shall also be extinguished by the sale of such real estate (Article 15 of the Civil Execution Act). If the auction proceedings for co-ownership of real estate are to be held in an auction procedure for co-ownership of real estate without taking into account the existence and content of the above real estate, and if the auction proceedings for co-ownership of real estate are to be conducted with a reasonable share of co-owners or auction proceedings for sale without taking into account the so-owned share.

With respect to this case, the plaintiff's assertion on the premise that the auction of this case is enforced as a formal auction, is without merit, unless there is any evidence to prove that the executing court of the auction of this case did not extinguish the burden on the real estate of this case and rendered a decision to change the conditions of sale that let the buyer take over.

B. Distribution order in the auction procedure of this case

According to Article 35 (1) of the Framework Act on National Taxes, national taxes and mortgage shall be determined by priority after the statutory date of national taxes and the registration of establishment of collateral security, and Article 13 of the Provisional Registration Security Act, provisional registration of collateral security shall be deemed a mortgage in the event compulsory sale by auction, etc. is commenced, and the registration of establishment of collateral security is completed at the time of completion of the provisional registration. The fact that each statutory due date of national taxes against the defendant's rightF is prior to the completion of provisional registration of this case is equal as seen earlier. Therefore, the defendant's claim as national tax shall be paid in full to the defendant, prior to the plaintiff's claim, the amount equivalent to the FF's share out of the proceeds of sale

As to this, the Plaintiff asserts to the effect that the above distribution schedule, which distributes to the Defendant prior to the Plaintiff, is illegal in violation of the above reconciliation recommendation decision having the same effect as the final and conclusive judgment. However, as long as only the amount equivalent to the amount of the FF’s share out of the sales price of real estate of this case, other than the execution cost, was distributed to the Defendant, who is a tax claim holder prior to the Plaintiff, pursuant to the purport of the above reconciliation recommendation decision, as long as the amount equivalent to the amount of the FF’s share was distributed to

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.