[1] The method of disposition on default where a taxpayer's property is subject to attachment

[2] Whether the priority of seizure under the Framework Act on National Taxes can be applied not only to the procedures under the National Tax Collection Act but also to the procedures under the Civil Procedure Act (affirmative)

[1] According to Article 28(4) of the Local Tax Act and Articles 56, 14(1), and 57 of the National Tax Collection Act, where a taxpayer’s property is prior to a disposition on default of national or local taxes, where a taxpayer’s property is subject to a disposition on default, a person who intends to make a disposition on default subsequent to such property may participate in the procedures for disposition on default by means of a request for delivery or participation in the attachment, and

[2] The purpose of the principle of priority in the seizure of the Framework Act on National Taxes is to give priority to the pertinent tax claims that have contributed to preventing the debtor from escaping or losing the debtor's responsible property due to the seizure. Thus, if the debtor's property is already initiated in the compulsory execution procedure under the Civil Procedure Act before a seizure based on the tax claim is made and thereafter a participation or a request for delivery by the tax collection office is made by the tax collection office, the above participation or a request for delivery shall take effect equally regardless of the period of time, regardless of whether the distribution procedure is made by the tax collection office in accordance with the Civil Procedure Act or by the distribution court in accordance with the Civil Procedure Act. However, if there is a seizure based on any taxation claim prior to the commencement of compulsory execution under the Civil Procedure Act, prior to the commencement of the seizure of the debtor's property, and there is another request for participation or delivery again, a tax claim related to the seizure shall take precedence over

Article 28 (4) of the Local Tax Act, Articles 14 (1), 56, and 57 of the National Tax Collection Act, Article 36 (1) of the Framework Act on National Taxes

Korea

Dongdaemun-gu Seoul Metropolitan Government and one other (Law Firm Dong-dong Law Office, Attorneys Ansan-soo et al., Counsel for the defendant-appellant)

1. Of the dividend table prepared on February 15, 1995 by a party member with respect to a dividend case of 94 Gaz5353, the amount of dividends to the defendant Mapo-gu and the amount of dividends of 103,896,289 won against the defendant Dongdaemun-gu shall be deleted, respectively, and the amount of dividends of 256,775,172 won against the plaintiff shall be corrected to 498,206,943 won.

2. The costs of lawsuit shall be borne by the defendants.

The same shall apply to the order.

1. Basic facts and determination

(a) Basic facts;

The following facts are not disputed between the parties, or they can be acknowledged by taking into account the whole purport of the pleadings in the descriptions of Gap evidence 1-1, evidence 1-2, 3, evidence 3-1, evidence 3-2, 3, evidence 5-1, evidence 6-1, evidence 7, evidence 8-3 through 12, evidence 8-1 through 3, and evidence 1-2, and there is no counter-proof.

(1) Around January 1992, 192, the Plaintiff-based Cheongyang Tax Office decided to attach the corporate tax, value-added tax, and the estimated amount of tax collected at Gap's neighboring tax in KRW 19,420,234,266 on the 1992 of the 1992 of the 199s of the New Man-man Scule Co., Ltd. (hereinafter referred to as the "Recule Company") prior to the final and conclusive seizure of the tax amount. On the 11st of the same month, the Nonparty-based 1 notified the Non-Party 1 of the attachment of the 18th of the 1992 of the 192 of the 19

(2) After that, on May 16, 1994, Defendant Dongdaemun-gu attached the right to return the above investment to Nonparty Company’s non-party funds in relation to the claim for taxation of KRW 778,236,090 in aggregate of four tax items of the resident tax and four additional taxes on the non-party company, including the non-party company’s resident tax, and KRW 920,760,050 in total of four tax items of the registration tax and four additional taxes, the defendant Mapo-gu attached the non-party company’s claim for return of the above investment, and then notified the non-party funds

(3) In addition, the creditors of the non-party company, including the non-party Credit Guarantee Fund, received a provisional attachment order from the court on eight occasions from January 1, 1992 to August 1994, and the written decision was served on the non-party fund.

(4) On November 23, 1994, the non-party fund deposited KRW 498,226,303 as the refund of the above investment to the non-party company as 94 gold 2128. Accordingly, upon the commencement of the distribution procedure as a party member 94tagi5353, the plaintiff filed a claim against the non-party company for the payment of KRW 1,943,38,810 in corporate tax in 1992, and the defendant Mapo-gu filed a claim against the non-party company for the payment of KRW 1,041,154,780 in aggregate for three tax items, local tax and additional dues, and disposition fee for arrears other than the resident tax, and KRW 786,392,660 in total for four local tax and additional dues.

(5) The distribution court held that all of the tax claims of the plaintiff and the defendants were first priority on the date of distribution, and decided to distribute 498,206,943 won, excluding 19,360 won for enforcement expenses, out of the deposited amount, according to the ratio of the amount of claims by each tax claim holder against the total amount of total claims, and decided to distribute 256,775,172 won to the plaintiff (the amount to be distributed to the plaintiff even according to the method of calculating the distribution court's calculation, is KRW 256,75,812 won. The amount to be distributed to the plaintiff is deemed to be due to mistake, and the amount to be distributed to the defendant Mapo-gu as KRW 256,775,172 is deemed to be due to mistake). However, the plaintiff raised an objection against the total amount of dividends by the defendants present on the date of distribution.

(b) Markets:

(1) Pursuant to Article 28(4) of the Local Tax Act, with regard to the validity of each disposition of collecting delinquent taxes by the Defendants again against the non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's claims already seized by the Plaintiff, it is stipulated that the disposition of collecting delinquent taxes should be followed except as otherwise provided in the Local Tax Act. Since the effect of double seizure of delinquent taxes is not specifically provided in the Local Tax Act, the international law of collecting delinquent taxes shall apply. According to Articles 56 and 14(1) of the National Tax Collection Act, where the head of a tax office intends to collect other taxes due to reasons such as delinquent taxes due to delinquent national taxes, etc., the head of a tax office who first issued a disposition of delinquent taxes shall request the collection of delinquent taxes, and Article 57 of the National Tax Collection Act provides that "if property is already attached by another agency, it shall not be subject to a request for collecting delinquent taxes.

(2) Next, Article 36(1) of the Framework Act on National Taxes provides that "if a taxpayer's property is seized by a disposition on default of national taxes, if any other national tax, additional dues, or local tax is requested to be paid, the national tax, additional dues, or disposition on default related to the seizure shall be collected in preference to the other national tax, additional dues, or disposition on default related to the seizure requested to be paid." In tax collection, the first priority principle is adopted in tax collection. The same as the request for delivery, and the effect of the participation in the seizure is also the same as that of the request for delivery, and thus, it shall be subordinate to the tax claim related to the seizure. Therefore, even though the Plaintiff's tax claim against each of the tax creditors should be preferentially distributed in comparison with the Defendants' tax claims related to the seizure, the preparation of a dividend schedule in proportion to each of the above tax claims shall be unfair as the priority of claims distribution. Accordingly, each of the above dividends against the Defendants in the above dividend schedule shall be corrected.

2. Judgment on the defendants' assertion

A. The Defendants asserted that the Plaintiff’s assertion on the priority of national tax claims is unreasonable even though there is no heat between the national tax claims and the local tax claims. However, the Defendants asserted that the Plaintiff’s claim as the cause of the instant claim is not the purport that the national tax claims generally take precedence over the local tax claims, but that in the event that the seizure of the tax claims competes with respect to the tax claims, the tax claims related to the seizure which was first conducted are higher than the tax claims related to the seizure which were subsequently conducted. Therefore, the Defendants’ claim is without merit.

B. The defendant Mapo-gu, in the compulsory execution procedure under the Civil Procedure Act, only the validity of the request for delivery to the court of execution is valid in the case where the tax collection authority made a seizure due to a disposition on default. Thus, both the plaintiff and the defendants are in the position of the person who made the request for delivery, and both the claimant and the defendants do not change the distribution order after the date of the request for delivery. Therefore, both the plaintiff and the defendants are in the same distribution order. Thus, applying the priority principle of seizure under the Framework Act on National Taxes to the compulsory execution procedure, it is unreasonable to distribute the

In light of the fact that the purpose of the first priority principle of seizure under the Framework Act on National Taxes is to grant priority to the taxation claim concerned which has contributed to preventing the secession or loss of the debtor's responsible property due to the seizure, the compulsory execution procedure under the Civil Procedure Act has already been commenced prior to the seizure of the debtor's property based on the tax claim, and the subsequent request for participation or delivery by the tax collection authority has already been made after the seizure of the debtor's property (in this case, even if the tax collection authority seizes the new debtor's property, it shall have no effect on the new debtor's participation or request for delivery), the above participation or delivery shall have equal effect regardless of time after the distribution court is made in accordance with the Civil Procedure Act in accordance with the National Tax Collection Act, regardless of whether the compulsory execution under the Civil Procedure Act begins with respect to the debtor's property pursuant to any taxation claim prior to the commencement of the subsequent participation or delivery procedure under the Civil Procedure Act, and if there is another subsequent request for participation or delivery procedure, it shall take precedence over the payment of the debtor's property after the seizure procedure has been made in accordance with the Civil Procedure Act.

However, in this case, even though the plaintiff attached the above national tax claim prior to the commencement of the compulsory execution procedure under the Civil Procedure Act with respect to the above invested claim, the non-party fund, the third debtor, did not pay the debt amount under the jurisdiction of the court and deposited the distribution procedure under the Civil Procedure Act with the court for the concurrent reasons of seizure. Thus, the plaintiff's taxation claim shall take precedence over the plaintiff's taxation claim. Therefore, the above defendant's assertion

3. Conclusion

Therefore, in the above distribution procedure, 137,54,842 won in the dividend amount against the defendant Mapo-gu and 103,896,289 won in the dividend amount against the defendant Dongdaemun-gu, and 256,775,172 won in the dividend amount against the plaintiff shall be deleted, respectively, and 256,775,172 won in the dividend amount against the plaintiff shall be corrected to 498,206,943 won in the amount of 498,206,943 won. Thus, the plaintiff's claim shall be accepted with merit.

Judges Kim Jae-gu (Presiding Judge) and Cho Jae-hee