[1] Whether re-auction (tender) decision and notice of public auction by the Korea Asset Corporation are an administrative disposition subject to appeal litigation (negative)

[2] In case of re-auction under Article 74(4) of the National Tax Collection Act, whether re-auction may be conducted at a price less than 50/100 of the initial estimated sale price (affirmative)

[1] The decision made by the Korea Asset Corporation to re-auction the pertinent real estate via the Internet is merely an internal decision making and cannot be deemed an administrative disposition subject to appeal litigation. In addition, the notice given by the Korea Asset Corporation is not a requirement for public auction but merely informing the delinquent taxpayer of the fact of public auction itself, and such notice does not directly affect the legal status, rights, and obligations of the other party to the notice. Therefore, it cannot be deemed an administrative disposition.

[2] In light of the provisions of Articles 62(1), 74(1), and 74(4) of the National Tax Collection Act, in selling the attached property in accordance with the disposition procedure for arrears, where the estimated sale price is not sold even if the estimated sale price is reduced by 50/100 of the initial price, the Korea Asset Management Corporation, etc., is not necessarily required to sell the attached property by a free contract pursuant to Article 62(1) of the same Act, but can re-auction at a price less than 50/100 of the initial estimated sale price pursuant to Article 74(4) of the same Act.

[1] Articles 68 and 74 of the former National Tax Collection Act (amended by Act No. 8055 of Oct. 27, 2006); Article 2 of the Administrative Litigation Act / [2] Article 74 of the National Tax Collection Act

[1] Supreme Court Decision 96Nu12030 delivered on June 26, 1998 (Gong1998Ha, 2009) / [2] Supreme Court Decision 97Nu8236 delivered on March 13, 1998 (Gong198Sang, 1091)

Pakistan Co., Ltd.

Korea Asset Management Corporation (Attorney Kim Jae-sub, Counsel for defendant-appellant)

Seoul High Court Decision 2005Nu21004 delivered on April 28, 2006

The part of the judgment of the court below concerning "public auction notification as of February 16, 2005" is reversed, and the judgment of the court of first instance is revoked, and the corresponding part of the lawsuit is dismissed. The remaining appeals are dismissed. All costs of the lawsuit are borne by the plaintiff.

1. Ex officio determination

A. The part concerning the Defendant’s “public auction notification as of February 16, 2005”

The decision of re-auction (tender) through the Internet during the period from 10:00 on March 15, 2005 to 17:00 on March 16, 2005 is merely an internal decision making and cannot be deemed an administrative disposition that is subject to appeal litigation. Moreover, the Defendant’s notice of public auction given on February 16, 2005 to the Plaintiff, etc. is merely informing the delinquent taxpayer of the fact of public auction, not an element for public auction, and it does not directly affect the legal status, rights, and obligations of the Plaintiff, etc. who is the other party to the notice. Therefore, this does not constitute an administrative disposition (see Supreme Court Decision 96Nu12030, Jun. 26, 1998). Thus, in the lawsuit of this case, “the purport of the judgment of the lower court, etc. is indicated as the “disposition of the public auction” as the “disposition of February 16, 2005.”

Nevertheless, the court below erred by misapprehending the legal principles on administrative disposition and thereby adversely affecting the conclusion of the judgment, on the ground that the defendant's "public auction notice" as of February 16, 2005 is deemed an administrative disposition and thereby dismissed the plaintiff's claim on this part.

B. The part concerning the Defendant’s “public auction notification as of November 24, 2004”

According to the above legal principles, the defendant's notice of public auction (the order, etc. of the first instance judgment maintained by the original trial is indicated as the "public auction disposition as of November 24, 2004") is not an administrative disposition, and therefore, the part of the lawsuit in this case seeking the cancellation of the public auction notice as of November 24, 2004 among the lawsuits in this case is illegal. However, the first instance judgment maintained by the court below to the purport that "the plaintiff's rejection of the lawsuit in this part is unlawful because it was filed after the expiration of the period of the lawsuit," unlike this, it is erroneous in the misapprehension of legal principles as to administrative disposition. However, the conclusion that the lawsuit in this part is dismissed is justifiable, and therefore, the argument in the grounds of appeal as to this part is not justified.

2. The grounds of appeal are examined.

Article 74(1) of the National Tax Collection Act provides that re-auction shall be conducted in case where no one desires to purchase the property at a public auction or the price thereof is less than the estimated sale price. The main text of paragraph (4) provides that when there is no bidder at an auction for the attached property, the amount corresponding to 10/100 of the estimated sale price shall be reduced every time the attached property is sold from the next public auction to the extent of the amount corresponding to 50/100 of the estimated sale price. In case where the attached property is not sold at an auction due to the decrease of the amount corresponding to 50/100 of the estimated sale price, the new estimated sale price may be conducted pursuant to Article 63. Meanwhile, Article 62(1) of the same Act provides that where the attached property falls under any of the following subparagraphs, it may be sold by a free contract, and Article 62(5) provides that the attached property may be sold at an initial sale price less than 5/100 of the estimated sale price, and each of the above attached property may be sold at an initial sale price less than 50/10/10 of the attached property:

In the same purport, the court below is just in holding that the public auction (sale decision) of March 17, 2005, which decided to sell each of the instant real estate to the non-party YD Co., Ltd. who participated in the bid price at the price above the estimated sale price at the first estimated sale price (7,454,314,000 won), was not sold at each of the instant real estate at the public auction (3,727,157,000 won) at the auction with the estimated sale price at several times, and held that the public auction (sale decision) at the first estimated sale price at 25% of the estimated sale price is legitimate, and there is no error in the misapprehension of legal principles as to the grounds for disposition, whether to discretion to dispose of the public auction, and deviation and abuse of discretionary power, etc. as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, the part of the judgment of the court below concerning the "public auction notification as of February 16, 2005" is reversed, and this part is sufficient to be directly decided by the Supreme Court, and therefore, it is clear that the judgment of the court of first instance, which judged on the merits as of the judgment of the court below, is also unlawful, and it is so revoked, and the corresponding part of the lawsuit is dismissed, and the remaining appeal is dismissed, and the total costs of the lawsuit are borne by the plaintiff. It is so decided as

Justices Park Si-hwan (Presiding Justice)