No objection may be raised against the right holder of the seizure of this case, which was made earlier than the creation of a collateral security.

The defendant who has acquired a security for tax payment from a third party, other than the taxpayer, cannot claim the priority of collection under the tax priority provision of the secured property, and can only receive a dividend in the auction procedure according to the registration order of the secured property, and therefore, it cannot be set up against the right holder of the seizure of this case, which

2012 grouped 24463 of the Demurrer

Seoul Metropolitan Government

Korea

September 27, 2012

October 11, 2012

1. Of the distribution schedule prepared by the same court on May 21, 2012, the Seoul Western District Court 201, regarding the application for auction of real estate rent, the amount of 000 won against the defendant is deleted and the amount of 000 won is distributed to the plaintiff.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Facts of recognition;

The following facts may be recognized in full view of the overall purport of the pleadings in each entry in Gap evidence 1 to 6, Eul evidence 1, and Eul evidence 3 to 5, unless there is a dispute between the parties or in each entry in Gap evidence to 6, and Eul evidence 3 to 5:

A. On November 12, 2010, Yeongdeungpo-gu Seoul District Court attached the apartment of this case (hereinafter referred to as "the apartment of this case") owned by Ansan on the grounds of delinquency in the local income tax (transfer income) of Ansan on November 12, 2010, 161 OOOOOO0 apartment No. 000,000 (hereinafter referred to as "OOOO0 apartment of this case").

B. On December 15, 2010, Defendant (hereinafter the same shall apply) entered into a contract to establish a mortgage of KRW 000 with AA and the maximum debt amount of KRW 000 with respect to the apartment of this case (hereinafter “the instant mortgage”) in order to secure the payment of capital gains tax of KRW 000 to EE, and registered the creation of a mortgage on January 5, 201.

C. However, on October 201, the North Korea Saemaul Bank, which has priority over the instant right to collateral security, filed an application for voluntary auction of the instant apartment with the instant court around October 201, and the instant court rendered a decision to commence voluntary auction (hereinafter referred to as “instant auction procedure”) on October 26, 201, pursuant to the Presidential Decree No. 17935, Oct. 26, 2011.

D. Meanwhile, the Plaintiff enacted and implemented the Seoul Special Metropolitan City City Framework Ordinance on Market Price, which allows the Plaintiff to directly collect the market price in arrears with the amount of at least 000 won for each case, among the market price imposed by the head of the Plaintiff’s autonomous Gu on January 13, 2011, and the head of the Plaintiff’s autonomous Gu, and accordingly, the Plaintiff’s market on April 25, 2012, as indicated below, with respect to AAA in this Court:

A total of 000 won was claimed to be delivered.

E. On May 21, 2012, this Court: (a) opened the date of distribution of the instant auction procedure; (b) determined the amount to be distributed in actual shares as KRW 000; and (c) set up a distribution schedule (hereinafter “instant distribution schedule”) with the content of allocating KRW 000 to the Defendant, who is the mortgagee of the instant case, to the Seoul Mapo-gu, which is the holder of the instant tax payment authority, and to the lessee’s sexual FFF with the second priority, in the order of KRW 00 and KRW 300; and (c) in the order of priority, to the lessee’s sexual FFF with the second priority, who is the holder of the instant tax payment authority. However, on the date of the said distribution, the Plaintiff raised an objection against the total amount distributed by the Defendant through his legal representative.

2. The assertion and judgment

A. The parties' assertion

(1) The plaintiff's assertion

(A) Since the instant collateral security was established and registered after the instant attachment, and in the dividend order, the Plaintiff, who was the subject of the instant attachment, has priority over the Defendant, who was the subject of the instant collateral security.

(B) Nevertheless, the instant distribution schedule was prepared by applying Article 37 of the Framework Act on National Taxes, which provides that the national tax, etc. shall be collected in preference to other national taxes, local taxes, etc. from the proceeds of the sale, but the said provision shall not apply to any security for tax payment which was established after the attachment by a

(C) Therefore, among the instant distribution schedule, the dividend amount of KRW 000 against the Defendant should be deleted, and the said distribution schedule should be revised to the effect that the said amount is distributed to the Plaintiff.

(2) The defendant's assertion

(A) Article 37 of the Framework Act on National Taxes provides that, notwithstanding Article 36 of the same Act, the secured national taxes may be imposed prior to other national taxes, local taxes, etc. among the proceeds from the sales of the offered tax, namely, regardless of the order of attachment.

(B) Accordingly, the instant distribution schedule prepared to preferentially distribute the Defendant, a person holding the right to security for the payment of apartment buildings of this case, to the Plaintiff, who is the person holding the right to collect the seizure of this case, is justifiable.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Because attachment by a disposition on default has legal or factual effect to prohibit any disposition on the delinquent property, any unfavorable disposition against the execution creditor such as repayment of the obligation against it, transfer of the obligation, and establishment of the right may not be asserted against the execution creditor.

(2) However, the current tax law, such as the Framework Act on National Taxes, the National Tax Collection Act, and the Framework Act on Local Taxes, does not have any provision on mutual heat between taxes, and all claims, including national taxes and local taxes, are, in principle, the same in the order of collection. However, as an exception thereto, the Framework Act on National Taxes and the Framework Act on Local Taxes (Article 36 of the Framework Act on National Taxes, Article 101 of the Framework Act on Local Taxes), and the provisions on the priority of secured tax (Article 37 of the Framework Act on National Taxes, Article 102 of the Framework Act on Local Taxes, and Article 102 of the Framework Act on Local Taxes) have the provisions on the priority of secured tax (Article 37 of the Framework Act on National Taxes, Article 102 of the Framework Act on Local Taxes, and Article 102 of the Framework Act on Local Taxes). The purpose of the attachment priority is to give the collection right of tax obligor more attention than other tax creditors and to give priority to the collection right of tax obligor (see Supreme Court Decision 2001Da83777, Jul. 111, 20003).

(3) Therefore, when comprehensively considering the contents, structure, and legislative intent of the regulations on the order of tax collection among fin tax in the above paragraph (2), and the effect of the seizure of the property of a delinquent taxpayer due to the disposition on default in fin tax in the above paragraph (1) cannot be deemed to extend to the prohibition of the provision of security for tax payment for other tax payers. In such case, even if there is a prior attachment based on other taxes on the security for tax payment, the tax payer having the right for tax payment can collect the property first from the proceeds of the security for tax payment in accordance with the above provisions on the preferential taxation for tax payment. However, since the tax obligee's right for tax payment is a right to a taxpayer, it is established between the seizure and the establishment of the tax seizure on the property of the taxpayer, and if the third party provided the property as security for tax payment on his own for tax payment, the tax payer having the right for tax payment cannot claim any priority under the above provisions on preferential taxation for tax payment for the taxpayer.

(4) On this premise, the instant facts were examined, and Yeongdeungpo-gu, Seoul, offered the instant apartment as security for tax payment by the Defendant on the ground that the instant apartment was delinquent local taxes of AA, and the security for tax payment established by the Defendant was intended to secure the collection of capital gains tax on EE, the third party. Therefore, the Defendant, who acquired the security for tax payment from a third party, other than the taxpayer, is not entitled to claim the priority of collection under the Tax Priority Regulations, and can only receive dividends from the instant auction procedure in accordance with the registration order of the instant collateral security, and thus, cannot oppose the right holder of the instant seizure, which was made earlier than the said collateral security.

(5) Nevertheless, the instant distribution schedule was prepared to distribute 000 won to the Defendant prior to the Plaintiff, who is the person entitled to the attachment of the instant case, and this was unfair, so the instant distribution schedule must be corrected to delete the above money distributed to the Defendant, and distribute the same money to the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the ground of the reasons.