After the head of a tax office seizes real estate owned by Eul on the grounds of Gap's delinquency in tax payment, the case holding that in a case where the Korea Asset Management Corporation prepared a distribution statement with the content that Gap's distribution amount was distributed to the tax office, the second Gun office, the third Gun office, and the fourth Gun office, and the fourth Gun office, and Eul deposited Eul's distribution amount as the government custody upon Gap's objection to the distribution amount, and Eul voluntarily withdrawn the distribution objection, but Eul applied for the payment of the distribution amount to the head of the tax office, but the head of the tax office filed a lawsuit against the State for the payment of the distribution amount on the grounds that "the circumstance that Eul transferred Eul's claim for the distribution amount was confirmed prior to the date of distribution," and the State revised the distribution statement with the content that Gap distributed the distribution amount to the tax office of the mortgagee Eul, the claim by Byung for the payment of the distribution amount was without merit, since the distribution statement became final and conclusive as the withdrawal of the distribution statement in the public sale procedure.

After the head of a tax office attaches real estate owned by Party A on the grounds of delinquency in tax payment by the Korea Asset Management Corporation, the Korea Asset Management Corporation prepared a distribution statement with the content of allocation to Party B, the Korea Communications Corporation’s 2th Gun Office, and the 4th Gun Office, and the distribution statement with the content of distribution to Party B, upon which Party B raised an objection to distribution, and Party B deposited B’s objection to distribution; Party B withdrawn the distribution objection; Party B filed an application for payment of distribution amount with Party B, but the head of a tax office filed a lawsuit seeking payment of distribution amount against the State on the grounds that “the circumstance that Party B fully repaid the secured obligation prior to the date of distribution is confirmed,” and the State’s revised distribution statement with the content of distribution amount distribution statement with the content of distribution to Party B’s tax office, the case holding that the distribution statement can not be seen as invalid or invalid by applying mutatis mutandis the distribution statement with the content of distribution statement with the reason that the distribution statement did not have become final and conclusive (Article 152, 154 and 161 of the Civil Execution Act).

Articles 83(1), 83-2(1), (3), and (4) of the National Tax Collection Act; Articles 152, 154, and 161 of the Civil Execution Act

Plaintiff (Law Firm Low, Attorney Kang Jae-nam et al., Counsel for plaintiff-appellant)

Korea

Daegu District Court Decision 2016Guhap22249 decided May 12, 2017

December 1, 2017

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 5,721,620 won with 15% interest per annum from August 25, 2016 to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

(a) Process of the procedures for public auction and preparation of the original distribution statement;

1) On September 20, 1999, Nonparty 1 completed the registration of creation of a neighboring mortgage (hereinafter “registration of collateral security”) with respect to the instant real estate with the debtor Nonparty 1, the mortgagee 2, and the maximum debt amount of KRW 260 million, which is the owner of the forest land 76,036m2 (hereinafter “instant real estate”).

2) On October 18, 2013, the director of the tax office at the port completed the attachment registration based on the disposition on default on the instant real estate on the grounds of Nonparty 1’s delinquency in tax payment.

3) In accordance with Article 61(5) of the National Tax Collection Act, the Korea Asset Management Corporation conducted a public auction procedure for the instant real estate on behalf of the head of the tax office having jurisdiction over the port under Article 61(5). The Korea Asset Management Corporation prepared a distribution statement (hereinafter referred to as “the first distribution statement”) stating that the amount of KRW 58,563,820, which is to be distributed on July 16, 2014, is to be distributed to KRW 2,066,320, 400, 25,710,000, non-party 25,710,000, the third mortgagee of the third collective security (hereinafter referred to as “the instant amount”), and the amount of KRW 746,740, each of the distribution statements (hereinafter referred to as “the first distribution statement”).

4) When the Korea Asset Management Corporation raises an objection to the allocation of the instant amount from Nonparty 1 on the date of distribution, it granted the remainder of the distribution except the instant amount to each distribution authority, and transferred the instant amount to the head of the tax office on July 25, 2014, and the head of the tax office at the port deposited it as the government custody pursuant to Article 84(1) of the National Tax Collection Act.

5) On July 28, 2014, Nonparty 1 withdrawn an objection to distribution.

B. Refusal to pay the instant amount and preparation of revised statement of distribution

1) On July 1, 2014, Nonparty 2 transferred the instant claim on the instant shares to the Plaintiff, and notified the Korea Asset Management Corporation thereof.

2) On July 28, 2014, the Korea Asset Management Corporation: (a) requested the director of a tax office of the Port on July 28, 2014 to deposit the amount of KRW 5,721,620 (=the amount of KRW 55,710,00 + accrued interest KRW 11,620 + the amount of KRW 11,620) to the Plaintiff’s account and to notify the result of the payment management; (b) however, the director of the tax office of the port of Port refused payment on the grounds of doubt about the instant amount distribution.

3) Accordingly, the Plaintiff filed a lawsuit against the Korea Asset Management Corporation seeking the payment of the instant amount (Seoul Administrative Court 2016Guhap54480), but was sentenced to retirement on May 19, 2016 on the ground that the Korea Asset Management Corporation is not the subject to whom the amount of distribution reverts.

4) On May 2016, the Plaintiff applied for the payment of the instant amount to the director of the Port Office. However, on June 16, 2016, the director of the Port Office rejected the application on the ground that “the circumstance where Nonparty 1 had already repaid the instant amount before the date of the instant distribution is confirmed to have already been repaid all the secured obligation of the instant registration.”

5) On February 2017, the Defendant prepared a distribution statement (hereinafter “revision distribution statement”) with the content that allocates the amount subject to the above distribution amount to KRW 2,066,320, and KRW 40,760, and KRW 40,760, and KRW 740, and KRW 55,721,620 in the order of priority in the order of priority in 1st, 201.

[Reasons for Recognition] Unsatisfy, Gap evidence 6 to 16, Eul evidence 1 to 5, the purport of the whole pleadings

2. Judgment on the main defense of this case

A. The defendant's assertion

The distribution procedure for the proceeds of a public auction is administrative procedure, and the director of the tax office of the port of distribution revoked the original statement of distribution and prepared the revised statement of distribution. Therefore, the plaintiff is only required to file an appeal against the disposition agency seeking its revocation and cannot seek the payment of the distribution amount against the Republic of Korea. Therefore, the lawsuit

B. Determination

In accordance with Article 8(2) of the Administrative Litigation Act, a party suit shall be governed by the provisions concerning the standing to sue in a civil suit. A party suit shall have standing to sue in a lawsuit for performance, and the person who has asserted as the person responsible to perform the suit shall have standing to sue in a lawsuit for performance (see Supreme Court Decision 95Da18451, Nov. 28, 1995, etc.).

The instant lawsuit is seeking the payment of the instant distribution amount deposited as government custody money on the premise that the initial distribution statement becomes final and conclusive, and constitutes party litigation as provided by Article 3 subparag. 2 of the Administrative Litigation Act. Therefore, the Plaintiff’s standing to sue is nominal by the Plaintiff’s claim itself, and its determination is absorptiond into judgment on the propriety of the claim, and thus, a person who asserts the right to demand performance has standing to sue and is asserted as the obligor by the obligor.

Unlike this, the Defendant’s main defense that assumes that the instant lawsuit is an appeal suit seeking revocation of the revised distribution statement is without merit.

3. Judgment on the merits

A. The plaintiff's assertion

Even if no objection has been raised on the distribution date or an objection has been raised with respect to the distribution statement prepared in the public auction procedure, if there is no objection by withdrawal of the objection thereafter, the distribution statement is finalized immediately, and in such cases, the head of a tax office is required to pay the distribution amount to the right holder on the distribution statement, and it should be deemed that there is no authority to separately investigate the relationship of rights and to change the distribution statement that has already been finalized. Since the initial distribution statement prepared in the public auction procedure in this case became final and conclusive as the original withdrawal of the distribution objection by Nonparty 1, the defendant who is keeping the distribution amount in this case is obligated to pay

B. Relevant statutes

Attached Form "Related Acts and subordinate statutes" shall be as stated.

C. Determination

1) Issues of the instant case

The Plaintiff filed a claim for the payment based on the premise that the initial distribution statement becomes final and conclusive due to the withdrawal of Nonparty 1’s distribution objection in the instant public sale procedure. Therefore, in the public sale procedure under the National Tax Collection Act, if the distribution objection is withdrawn, as in the auction procedure under the Civil Execution Act, the original distribution statement becomes final and conclusive and the head of a tax office cannot modify

2) Relevant legal principles

In contrast to the judicial resolution of the procedure for compulsory execution under the Civil Procedure Act, the procedure for liquidation under the National Tax Collection Act is a procedure for prompt satisfaction of tax claims by administrative agencies. Thus, in a case subject to the National Tax Collection Act, the provisions or interpretation of the Civil Execution Act shall not apply mutatis mutandis (see, e.g., Supreme Court Decision 2001Du7329, Dec. 11, 2001). Therefore, Article 605 of the Civil Procedure Act, which is a provision on the demand for distribution and the time thereof, shall not apply mutatis mutandis to the procedure for liquidation in a disposition for arrears. Article 81(1) of the National Tax Collection Act provides that the head of a tax office shall ex officio determine an amount to be apportioned to the creditors provided for in the Civil Procedure Act and prepare a distribution statement (see, e.g., Supreme Court Decision 98Du10578, Dec. 11, 1998).

○ A disposition agency that performed an administrative act may withdraw its effect by a separate administrative act which would lose its validity, where there was no particular defect at the time of the disposition, and there was no separate legal ground to withdraw it after the disposition, but there was no need to continue the original disposition, or where there was a change of circumstances that became unnecessary to continue the disposition, or where there was a need for the important public interest (see Supreme Court Decision 2003Du10251, Nov. 26, 2004, etc.).

3) Determination

A) When the head of a tax office distributes money pursuant to Article 80, he/she shall prepare the original distribution statement and keep it no later than seven days prior to the distribution date (Article 83(1)), and delinquent taxpayers, etc. (referring to delinquent taxpayers, creditors subject to reporting claims, and creditors who requested distribution; hereinafter the same shall apply) who attend the distribution date may raise an objection against the order of claims or claims entered in the original distribution statement under Article 83(1) within the scope related to their claims before the distribution date expires (Article 83-2(1)); when the head of a tax office deems that there is no objection under paragraphs (1) and (2) or that the objection is justifiable, he/she shall immediately determine it as the original distribution statement (Article 83-2(3)); when the head of a tax office deems that the original distribution statement is justifiable or that there is an agreement between the delinquent taxpayers, etc. different from the original distribution statement, he/she shall promptly revise the distribution statement and determine the distribution statement (Article 83-2(4)). Meanwhile, the amount so designated by the Korea Asset Management Corporation's.

B) As seen earlier, on July 16, 2014, the distribution date of the instant public auction procedure, Nonparty 1 raised an objection to the instant distribution amount by Nonparty 2 among the initial distribution statement on July 16, 2014, but the said distribution was withdrawn on July 28, 2014.

However, in the auction procedure under the Civil Execution Act, where an objection to distribution is withdrawn, the distribution schedule is determined as it is (Articles 152, 154, and 161 of the Civil Execution Act), but the provisions or interpretation of the Civil Execution Act in the public sale procedure subject to the National Tax Collection Act, as seen earlier, cannot be applied mutatis mutandis or applied mutatis mutandis. Thus, the withdrawal of the above distribution objection cannot be interpreted as having become final and conclusive as it is only by the withdrawal of the original distribution statement. The National Tax Collection Act only plans the subsequent confirmation procedure of the head of a tax office by prescribing that the head of a tax office immediately determines the distribution statement as the original distribution statement, or revise it, depending on the existence of an objection to the distribution statement, etc.

C) Furthermore, we examine whether the chief of a tax office can revise and confirm the original distribution statement after the aforementioned distribution objection and withdrawal.

In light of the following circumstances, in cases where the sales price of the attached real estate is below the total amount of national taxes and other claims and the senior mortgage which takes precedence over delinquent national taxes is deemed null and void after the withdrawal of the distribution objection, a public auction institution, such as the head of a tax office, etc., may refuse to distribute the distribution order and revise the distribution statement. In such cases, a creditor who has an objection to the contents of the revised distribution statement shall only be dissatisfied with the method of seeking revocation of the distribution order.

(1) As seen earlier in the relevant legal principles, the agency which has performed an administrative act may withdraw it by a separate administrative act which would lose its effect, unless there is any change in circumstances, or if it is necessary for the important public interest.

② In addition, since the provisions of the Civil Execution Act on the objection to distribution cannot be applied mutatis mutandis to the procedure of public auction, any creditor who has an objection to the contents of the distribution statement is bound to appeal by the method of seeking revocation of the disposition of distribution.

(3) The procedure for disposition on default under the National Tax Collection Act is concurrently held by the head of a tax office as the person in charge of the procedure (such as in this case, he may entrust the procedure to the Korea Asset Management Corporation), and at the same time, as creditors of a claim who intend to obtain satisfaction by the procedure (see Supreme Court Decision 9Da35447, Mar. 15, 2002, etc.). As such, the head of a tax office is not entitled to seek revocation of the disposition on distribution after the disposition on distribution because he/she was a person who voluntarily distributes the claim. Thus, in preparing the first distribution statement, when the proceeds from sale fall short of the satisfaction of the total amount of national taxes and other claims, he/she shall be deemed to have the authority to prepare a distribution statement or revise it before the final determination thereof so that his/her claim (national taxes) is not infringed by an invalid senior collateral security. In other words, in the procedure for disposition on default under the Civil Execution Act, the State, who is a taxation authority, may claim the invalidity of senior collateral and protect his/her taxation obligation.

④ Unless seen as above, the head of a tax office (the State) who is a national tax obligee in the public sale procedure failed to raise an objection to the distribution statement made by mistake, and subsequently claims the return of unjust enrichment on the money paid to the mortgagee by asserting the invalidity of the relevant right to collateral security in a separate civil procedure after the distribution amount for the right to collateral security, which is suspected of invalidation, was established. This would result in unilaterally compelling the tax obligee to take double procedures and disadvantage solely on the ground that it is a disposition procedure for arrears

⑤ The National Tax Collection Act does not stipulate the form of automatic confirmation of the distribution statement according to whether there is an objection to the distribution statement, and the chief of a tax office stipulates that the distribution statement should be immediately finalized or revised and confirmed as the original copy of the statement, and it also includes such intent.

(6) On the contrary to the instant case, there was an objection to the instant distribution statement among the original distribution statement, and as long as the chief of a tax office conducted an investigation with a doubt as to the amount of secured claims of the instant collateral security registration on which the instant amount was the basis for the instant distribution amount, he cannot be deemed to constitute “when there is no objection or the content of the objection is not recognized to be justifiable,” which is prescribed by Article 83-2(3) of the National Tax Collection Act as the grounds for immediate confirmation as to the original distribution statement.

4) Sub-determination

Therefore, the portion of the original distribution statement of this case concerning the distribution amount of this case was not confirmed by Nonparty 1’s objection and the revised distribution statement of the chief of the tax office. Thus, the Plaintiff’s assertion seeking the payment of the distribution amount of this case on the premise that all of the original distribution statement is finalized is without merit (the Plaintiff’s appeal seeking the cancellation of the revised distribution statement that is actually confirmed by the chief of the tax office of the tax office of the port of port or the civil lawsuit seeking the return of unjust enrichment against the unentitled person who is not originally

4. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, it is revoked and the defendant's appeal is accepted and the plaintiff's claim is dismissed. It is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Sung-manon (Presiding Judge)