(a) Whether the mortgagee has a legitimate interest in paying the national tax in arrears by the person providing the security by subrogation (affirmative);

(b) Designation of the receiver of performance;

1. If the taxpayer has no other property than the property transferred for security, the mortgagee has a burden to collect the taxpayer’s delinquent national tax prior to his/her own claim, and thus, the mortgagee has a legitimate interest to pay the taxpayer’s delinquent national tax on behalf of the taxpayer.

2. Where a debtor bears several monetary obligations to the same creditor, and the performance which has been provided as the performance fails to discharge the whole of his/her obligation, and if the person performing the obligation has not designated any obligation to be appropriated for performing the obligation, the person accepting the performance may designate a certain obligation and appropriate it for performing

(1) Article 42 of the Framework Act on National Taxes, Articles 469 and 481, and (2) Article 476 of the Civil Act

Attorney Lee Sung-soo, Counsel for the plaintiff-appellant

Defendant Kim Jong-chul, Counsel for the defendant-appellant

Daegu High Court Decision 79Na955 delivered on May 28, 1980

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The defendant's agent's grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below determined that the plaintiff paid the above national tax on January 5, 1977 to the non-party who became the mortgagee of the above real estate on the ground that the plaintiff paid the provisional registration of the right to claim the transfer of ownership on March 4, 1976 on the original real estate owned by the non-party, and completed the registration of October 4 of that year. Meanwhile, on August 7, 1976, the country issued a disposition of seizure of the above real estate on the ground of the non-party's delinquency in national tax, and notified the plaintiff of seizure of the property and registered the purport thereof August 20 of that year, and the above non-party cannot be collected otherwise from the above non-party on the ground that the plaintiff was the mortgagee of the above real estate to pay the national tax on the non-party's delinquent national tax on the ground that the court below did not have any legitimate interest in paying the tax on the non-party's national tax on the non-party's delinquent national tax, and thus, it did not have any legitimate interest in paying other property.

2. In a case where a mortgagee is a physical taxpayer under Article 42 of the Framework Act on National Taxes and pays the national tax in arrears on behalf of the taxpayer, not only the secured debt but also claims for indemnity due to the payment of the national tax may be repaid from the realized money of the mortgaged property. In a case where the obligor bears several monetary obligations to the same obligee, if the benefits provided as repayment are not extinguished, the repayment recipient may designate any obligation and appropriate it for the repayment. According to the records, the plaintiff's declaration of intent to appropriate the above non-party's designated repayment from the sale of the mortgaged property at the original time after the sale of the mortgaged property at the original time and the obligor's declaration of intent to appropriate it from the above sale price to repay the above non-party by designating the indemnity claim due to the payment of the above national tax from the above sale price. Thus, the court below erred in the misapprehension of legal principles, which affected the plaintiff's claim for reimbursement as a matter of course, such as the plaintiff's claim for reimbursement.

3. The judgment of the court below is not erroneous as the theory of lawsuit, since the plaintiff's claim for indemnity, which was acquired by the payment of the above national tax, was clearly made in preference to the loan claims in this case from the proceeds from the sale of the property transferred for security in this case. Thus, the judgment of the court below is not erroneous as the theory of lawsuit.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-tae (Presiding Justice) Kim Jong-young (Presiding Justice)