Daegu High Court-2014-Nu-4307 (No. 11, 2014)

The binding force of the ruling shall only affect the judgment on specific grounds for illegality of the disposition.

Even if the previous disposition has been revoked by the adjudication, it shall not be kept at the speed of the previous disposition for any reason different from the time of the previous disposition.

2014Du40029 Nullification of a seizure disposition

○ School Foundation

○ Head of tax office

Daegu High Court Decision 2014Nu4307 decided July 11, 2014

February 9, 2017

The part against the defendant is reversed, and that part of the case is remanded to the Daegu High Court.

The grounds of appeal (the supplemental appellate brief not timely filed)

(1) The court shall make decisions to the extent of supplement in case of any kind.

1. The binding force of the ruling extends only to the recognition and judgment of the facts constituting the order of the ruling and the requisite facts constituting the premise thereof, i.e., the judgment on the specific grounds for illegality of the previous disposition, even if the previous disposition was revoked by the ruling, it does not conflict with the binding force of the previous disposition. Here, whether the same grounds exist or not should be determined on the basis of whether the previous disposition was illegal, and whether it is a reason recognized as identical in basic factual relations (see, e.g., Supreme Court Decision 2003Du7705, Dec. 9, 2005).

2. Review of the reasoning of the lower judgment and the evidence admitted by the lower court reveals the following facts.

A. The Plaintiff is an educational foundation that operates the ○ Information High School and the ○○ Middle School. From around December 3, 1983, the Plaintiff registered ○○○-do 1295-1, 8,549 square meters and 1295-2 square meters and 6,255 square meters and 1295-2 square meters and 1295-2 square meters and 255 square meters (hereinafter referred to as “○○-ri land”) owned by the Plaintiff as an fundamental property for education, and used it as a practice place for the ○○-gu and the head of the stable-gu.

B. On April 4, 1990, the Plaintiff applied for permission to change the purpose of use and substitute disposal to the superintendent of education to dispose of the land of 00 Ri as fundamental property for profit and to manage the disposal price in substitution for a fixed deposit on the ground that the land was not exploited due to the dissolution of the camping-do and the financial security for the school relocation plan.

C. On May 7, 1990, the Superintendent of the Office of Education of Gyeong-do has granted permission on the deposit of a fixed deposit with the disposal price and the disposal until August 20, 1990. However, the Plaintiff failed to dispose of ○-ri land by the above deadline, and thereafter, did not obtain permission again to change the use of ○○-ri land to the basic property for education.

D. The Defendant, on May 8, 1996, issued a seizure disposition on real estate owned by the Plaintiff, including ○○ land, (hereinafter “previous seizure disposition”) upon the Plaintiff’s default of corporate tax of KRW 1,361,18,760.

E. On November 21, 1996, the Plaintiff appealed against it and filed a request for a trial with the National Tax Tribunal on November 21, 1996. The Plaintiff asserted that ○○ land, etc., as fundamental property for education, cannot be seized because it is a real estate which cannot be an object of auction pursuant to the relevant Acts and subordinate statutes, such as the Private School Act. The Defendant argued to the effect that it may not be an object of compulsory auction, regardless of whether it

F. The National Tax Tribunal confirmed on April 14, 1997 that certain real estate, including ○○ land, is registered as an fundamental property for education, according to the current state of the Plaintiff’s property, which was confirmed by the superintendent of the Office of Education, and confirmed that it was registered as an fundamental property for education. However, among the Plaintiff’s real estate subject to attachment disposition, on the ground that the Plaintiff’s real estate, which is recognized as an fundamental property for education in private schools, is not allowed to seize certain real estate, such as ○○ land, etc., which is recognized as an fundamental property for education in private schools, was partially accepted among the Plaintiff’

G. On October 15, 2004, the Defendant again issued a disposition of seizing ○○ on the grounds of delinquency in the payment of the above corporate tax, and on August 18, 2010, 19 square meters out of 1295-1 Doz. 8,549 square meters out of 1295-6, and 1,782 square meters out of 1295-2 Doz. 6,255 square meters out of 1295-7, respectively (hereinafter “instant attachment disposition”).

H. Meanwhile, for ○○○ land, Kim○-○ received direct payments compensating for rice income from 2004 to 2008 and from 2009 to 2010.

3. In full view of the following circumstances revealed by the facts and records as above, i.e., (i) in the judgment of this case, the National Tax Tribunal recognized that the ○○○ land was registered as an fundamental property for education, and judged that it was an fundamental property for education, without any fact-finding or decision as to the actual status of its use; (ii) at the time of the previous seizure disposition, the Defendant attached the real estate owned by the Plaintiff without examining whether it was an fundamental property for education directly used for private school education; and (iii) even at the time of the seizure disposition of this case, the Plaintiff and the Gyeongbuk-do Office of Education entered the ○○○○○ land as an fundamental property for education in the school foundation registry, etc., but the Defendant attached only the real estate owned by the Plaintiff, it is reasonable to view that the reason for the seizure disposition of this case was that the actual status of its use, such as the ○○○ land used as farmland by a third party, was not an fundamental property for education purposes, which is not in conflict with the basic property for education of this case at the time of this case.

Nevertheless, solely for the reasons indicated in its holding, the lower court determined that the instant attachment disposition violates the binding force of the instant judgment on the grounds that the grounds for the instant attachment disposition are identical to the grounds for illegality and basic facts determined in the instant judgment. In so determining, the lower court erred by misapprehending the legal doctrine on the binding force of the judgment, thereby adversely affecting the conclusion of the judgment

4. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.