[1] Whether a third party, who is not the direct counter party to an administrative disposition, is entitled to file a revocation suit in cases where the interests protected by law are infringed due to an administrative disposition (affirmative), and the meaning of “interest protected by law”

[2] The purpose of the latter part of Article 83(1) of the former National Tax Collection Act and the scope of claims subject to distribution among claims requested to be distributed before preparing a distribution statement

[3] Whether the director of a tax office, etc. may request the issuance of only the tax claim established and determined before the seizure of the attached property is transferred to the purchaser in the public sale procedure (affirmative)

[1] Even a third party, who is not the other party to an administrative disposition, is subject to legal protection due to an administrative disposition, if the legal protection of the administrative disposition is infringed, a revocation lawsuit shall be instituted, and the legal protection interests here refer to individual, direct, and specific interests protected by the relevant laws and regulations.

[2] The latter part of Article 83(1) of the former National Tax Collection Act (amended by Act No. 10527, Apr. 4, 2011) provides that “A person subject to distribution shall request the head of a tax office to distribute before the preparation of a distribution statement.” This is not a provision that excludes a person subject to distribution who did not request the distribution until the preparation of a distribution statement from the distribution statement, but is merely a principle provision that a person subject to distribution may request the distribution until then. In addition, all claims that requested the distribution before the preparation of a distribution statement are not subject to distribution, but are entitled to distribution, and only the claims eligible for distribution are entitled to distribution

[3] As a matter of principle, seizure in the procedure of disposition on default under the former National Tax Collection Act (amended by Act No. 10527, Apr. 4, 201; hereinafter the same) may be limited to the property owned by the defaulted taxpayer; when the sale price is paid, the property owned by the defaulted taxpayer is transferred to the purchaser and the sale price itself shall be the object of distribution in accordance with the procedure for disposition on default, which is established and determined after the sale price is paid; and it is possible to collect delinquent taxes against other property of the defaulted taxpayer on the basis of a tax claim established and determined after the sale price is paid in full and the attached property is not subject to distribution in the procedure of public sale, even if the claim for delivery of the attached property

Unlike the above, if a claim for delivery is filed after the full payment of the sale price until the date of the preparation of the distribution statement, it can be considered that the sale price can be included in the distribution object if there is no separate provision under the former National Tax Collection Act, and there is an unreasonable result that can be affected by the inclusion of the tax claim established and confirmed after the full payment of the sale price is made according to the time of the preparation of the distribution statement that is left to the director of the tax office.

In full view of these facts, although the former National Tax Collection Act requires the head of a tax office, etc. to distribute tax claims that have been established and determined until any time, there is no explicit provision on whether the sale price, etc. of the attached property can be subject to distribution. However, the head of a tax office, etc. may request the issuance of only the tax claims that have been established and determined before the sale price of the attached property is transferred to the purchaser due to the full payment of the sale price, and the subsequent tax claims established and determined cannot be included in the subject of distribution, such as the sale price of the attached property even if

[1] Articles 1 and 12 of the Administrative Litigation Act / [2] Article 83 (1) of the former National Tax Collection Act (Amended by Act No. 10527, Apr. 4, 2011) / [3] Articles 81 (1) 2 and 83 (1) of the former National Tax Collection Act (Amended by Act No. 10527, Apr. 4, 201)

[1] Supreme Court Decision 2001Du4450 decided Oct. 25, 2002 (Gong2002Ha, 2881) Supreme Court Decision 2004Du6716 decided Jul. 28, 2006 (Gong2006Ha, 1540)

Plaintiff (Attorney Son Ji-yol et al., Counsel for the plaintiff-appellant)

Korea Asset Management Corporation (Law Firm Jungjin, Attorneys Lee Dong-chul et al., Counsel for the defendant-appellant)

Chief Prosecutor of Seoul Central District Prosecutors' Office

Seoul High Court Decision 2013Nu23692 decided January 10, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the legal interest-related argument

Even if a third party who is not the direct counter-party to an administrative disposition is not the party, if the legal interests protected by the administrative disposition are infringed, the revocation lawsuit shall be instituted and the decision of the legitimacy thereof shall be made. The legal interests referred to above refer to individual, direct and specific interests protected by the relevant administrative disposition law and relevant laws and regulations (see Supreme Court Decision 2004Du6716, Jul. 28, 2006, etc.).

After finding the facts as stated in its reasoning based on its adopted evidence, the court below determined that the Plaintiff has a legal interest in seeking revocation by an appeal litigation against the distribution of the sales price of the shares of this case, since all creditors have not received the entire amount of their claims in distribution of the sales price of shares issued by Ssarid Korea Co., Ltd. (hereinafter “the shares of this case”) and thus, at the time of sale of the shares of this case, the Plaintiff’s claim for revocation of such distribution does not dispute the distribution order among creditors in the situation where creditors have received their entire amount of claims distribution, not only the creditor’s claim for distribution order, but also the sales price of the shares of this case in preference to the collection charge claim, since the Plaintiff has legal interest in allocating the sales price of the shares of this case to the national tax claim of this case

In light of the above legal principles, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the legal interest in the

2. As to the assertion regarding the scope of taxation claims that can be allocated

A. The latter part of Article 83(1) of the former National Tax Collection Act (amended by Act No. 10527, Apr. 4, 2011; hereinafter the same) provides that “A person subject to distribution shall make a request for distribution before the head of a tax office prepares a distribution statement.” This is not a provision that excludes a person subject to distribution who has not been requested until the preparation of a distribution statement from the distribution, but is merely a principle provision that a person subject to distribution may make a request for distribution until then. In addition, all the claims requested for distribution before the preparation of a distribution statement are not subject to distribution, but only the claims eligible for distribution are subject to distribution.

Meanwhile, in view of the fact that a seizure may be conducted only for the property owned by the delinquent taxpayer in principle in the procedure for disposition on default under the former National Tax Collection Act, the property owned by the delinquent taxpayer is transferred to the purchaser when the sale price is paid, and the sale price itself becomes the object of distribution in accordance with the procedure for disposition on default that is in progress, and that a disposition on default can be taken only for other property of the delinquent taxpayer on the basis of a tax claim established and determined after the sale price is paid, it is reasonable to deem that a tax claim established and determined after the sale price is paid in full and the attached property is not subject to distribution in

Unlike the above, if a claim for delivery is filed after the full payment of the sale price until the date of the preparation of the distribution statement, it can be considered that the sale price can be included in the distribution object if there is no separate provision under the former National Tax Collection Act, and there is an unreasonable result that can be affected by the inclusion of the tax claim established and confirmed after the full payment of the sale price is made according to the time of the preparation of the distribution statement that is left to the director of the tax office.

In full view of these facts, although the former National Tax Collection Act requires the head of a tax office, etc. to distribute tax claims established and determined until any time, there is no explicit provision on whether the sale price, etc. of the attached property can be subject to distribution. However, the head of a tax office, etc. may request the issuance of only the tax claims established and determined before the sale price of the attached property is transferred to the purchaser due to the payment of the sale price in full at the latest, and the subsequent established and determined tax claims cannot be included in the subject of distribution, such as the sale price of the attached property, even if the request for

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

1) On June 17, 2008, the Defendant’s assistant intervenor attached the instant shares owned by the Plaintiff on the ground that the Plaintiff defaulted approximately KRW 17.9,23.5 billion from the additional collection charge, and on January 15, 2009, ordered the Defendant to sell the shares by public auction, transfer of rights, and distribute the sale proceeds by proxy.

2) On December 30, 2009, the Defendant publicly announced the public auction of the instant shares; on August 6, 2012, the sales decision was made to acquire by transfer; and on September 13, 2012, the purchaser of the instant shares paid the sales price in full.

3) On September 21, 2012, the director of the tax office, on the ground of the transfer of the instant shares by public sale as above, requested the Defendant to deliver the sales price of the instant shares to the Plaintiff based on the total amount of KRW 21,759,530,130,00 for the transfer income tax and securities transaction tax accrued in September 26, 2012. On September 27, 2012, the director of the tax office determined the occasional assessment as above, based on the national tax claim and additional dues totaling KRW 22,412,316,030 (hereinafter “instant national tax claim”).

4) On September 21, 2012, the head of Seocho-gu requested the Defendant to deliver the purchase price of the instant shares to the Plaintiff based on the local income tax of KRW 2,124,673,110, the payment deadline of which was September 26, 2012, based on the said public sale of the instant shares. On October 2, 2012, the head of Seocho-gu determined the occasional assessment of KRW 2,188,413,30 (hereinafter “instant local tax claim”).

5) On October 5, 2012, the Defendant prepared a distribution statement on KRW 92,330,061,130 as to the sales price of the instant shares and the deposit interest thereon. The Defendant did not distribute the sales price for the instant national tax claim and the instant local tax claim, but distributed the amount not distributed as such to the Defendant’s supplementary collection charge claim.

C. Examining these facts in light of the legal principles as seen earlier, in the public sale procedure of this case where the prosecutor requested the Defendant to sell the stocks of this case by proxy in the same manner as delinquent national taxes are collected in order to execute the additional collection charge against the Plaintiff pursuant to Article 477(4) of the Criminal Procedure Act, the national tax claim of this case and the local tax claim of this case are merely a final and conclusive tax claim established after full payment of the purchase price of the stocks of this case, and thus, cannot be deemed to fall under the subject of allocation under Article 81(

Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that the instant disposition was unlawful on the premise that the instant national tax claim and the instant local tax claim are tax claims subject to distribution. In so determining, the lower court erred by misapprehending the legal doctrine on claims subject to distribution under Article 81(1)2 of the former National Tax Collection Act, thereby adversely affecting the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and 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.

Justices Kim Jae-hyung (Presiding Justice)