Supreme Court Decision 2008Du3685 (No. 12, 2008)

Seoul High Court 2007Nu20258 (Law No. 29, 2008)

Whether the attachment and sale disposition are illegal

The mere fact of filing a lawsuit seeking cancellation of the registration of seizure following the disposition of seizure is that the submission of evidentiary documents that can be confirmed as the owner is difficult to view that the disposition of selling the seized property is unlawful.

The contents of the decision shall be the same as attached.

Article 24 (Requirements for Attachment)

Article 50 (Third Party’s Claim on Ownership)

1. The plaintiff's claims against the defendants are all dismissed.

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

The director of the tax office on the defendant Yananan District Tax Office confirms that each attachment disposition on January 24, 2002 by the director of the tax office of the defendant Yananan District Tax Office on the ○○○○○-22 forest 10,154 square meters and 761 square meters in the same Myeon○○○-25 forest 761 square meters is null and void.

In relation to Defendant Korea Asset Management Corporation, it is confirmed that the sales decision on January 5, 2005 by Defendant Korea Asset Management Corporation was null and void, and the sales decision on January 5, 2005 by Defendant Korea Asset Management Corporation as to Defendant Korea Asset Management Corporation’s forest and ○○○○-22 forest and 10,154 square meters and 761 square meters and 00 square meters and 0,254 square meters and 0,000 square meters and 0,000 square meters and 0,000 square meters and 0.

1. Circumstances and facts of the disposition;

A. Before the division, the 00 square meters of ○○○○ ○○-1 Forest Land in 19.976 square meters (hereinafter “the land before the division”). Around the division, the 00 square meters of the land was owned, but part of the land was designated and sold in installments as follows. However, each buyer completed the registration of ownership transfer by transferring his/her shares without going through the division procedure.

1) On September 6, 1993, the Plaintiff sold 3,941 square meters of the land prior to the instant subdivision to Seocheon, and completed the registration of ownership transfer for shares of 3,941/19,976 of the land prior to the instant subdivision by the Daejeon District Court’s Masan registry as of September 7, 1993, as the receipt of No. 23011 on September 7, 1993.

2) On September 6, 1993, the Plaintiff sold 5,977 square meters of the land prior to the instant subdivision to the Plaintiff, and completed the registration of ownership transfer on the share of 5,977/19,976 out of the land prior to the instant subdivision as the receipt of No. 23012 on September 7, 1993 by the said registry office.

3) On August 16, 1993, the Plaintiff sold 9,061 square meters of the land prior to the instant subdivision to ○○○, Co., Ltd. (hereinafter “○○○○”) and completed the registration of ownership transfer on shares of 9,061/19,976 of the land prior to the instant subdivision as the receipt by the said registry office on September 10, 1993.

4) On May 16, 1999, the Plaintiff sold 97 square meters, which is the remainder of the land prior to the instant subdivision, to ○○ around May 16, 199, and completed the registration of ownership transfer on the portion of the land prior to the instant subdivision as the receipt of No. 21930, Jun. 29, 1993, among the land prior to the instant subdivision, as the registration office completed the registration of ownership transfer.

B. On October 199, the Plaintiff, west, Lee Jong-soo (hereinafter collectively referred to as the “Plaintiff, etc.”) and ○ Jong-si specified each of the above purchase parts of the instant land before the instant subdivision and occupied it. On October 1999, the agreement was made to divide the land before the instant subdivision and to waive share (hereinafter referred to as the “instant agreement”).

1) The part of 9,061 square meters, which was purchased by the ○○ Government and occupied and used, is divided into 0,061 square meters, “○○○-24,061 square meters, Asan-si, ○○○-24,061 square meters. The Plaintiff et al. renounced their shares on that part and owned by the ○ Government alone.

2) The portion of 10,915 square meters that the Plaintiff, etc. purchased and used for each possession and use (i.e., 3,941 square meters + 5,977 square meters + 997 square meters) is divided into “○○○○○○○-22 Forest land in Asan-si” and “○○-25 forest land and 761 square meters”, and the Plaintiff, etc. waives their respective shares (hereinafter “total share of 00 square meters”) with respect to the said land, and jointly owned and used them as previous shares.

C. Pursuant to the instant agreement, the land prior to the instant partition was divided into the said ○-24 land on October 14, 1999 and the said ○○-22 land and the said ○○-25 land (hereinafter referred to as the “instant land”), respectively, and the said ○-24 land and the instant land were registered as co-ownership of shares under the name of each ○○○○○-24, respectively, in the register on the instant land, as well as the said ○-24 land and the instant land. As for the register on the instant land, the co-ownership registration was entirely transcribed in the name of each ○○○○○, 3,941/19,976 shares, 5,977/19,976 shares in the Plaintiff’s name, 9,61/19,976 shares in the Plaintiff’s name, and 997/19,976 shares in the name of the

D. Thereafter, on December 3, 1999, the Plaintiff et al. completed a share transfer registration under Article 40400 for each of the above ○-23 land among the above ○○-23 land (the above ○○-24 land was combined with the adjacent “○○-6 site for factory” on July 26, 2002 and “○○○-6 site for factory, 12,488 square meters” on July 27, 2001, and thereafter, “○○-6 site for factory, 12,488 square meters” was combined with the adjacent “○○-6 site for factory, 2002” and “1,654 square meters for factory, 200 square meters” on November 27, 2001.

E. However, ○○○ did not complete the registration of the transfer of shares or the cancellation of shares with respect to the portion of ○○ suspension for which he had decided to waive in accordance with the instant agreement. As to the instant land, ○○○○ did not complete the registration of the transfer of shares or the cancellation of shares with respect to the portion of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW 19,976, supra.).

F. On October 30, 2001, the Korea Workers' Compensation and Welfare Service attached the portion of suspension on the ground of delinquency in the industrial accident insurance premium of ○○○○ on November 1, 2001, and completed each registration of seizure under Article 36646 of the above registry office's receipt of the above registry office on November 1, 2001, and thereafter, on January 24, 2002, the head of the tax office of Yananan District (hereinafter "the head of the tax office") seized the portion of suspension on the ground of delinquency in payment of ○○ national tax (hereinafter "the attachment disposition of this case") on January 26, 202, and completed each of the attachment registration under Article 3492 of the above registry

G. On October 15, 2003, the chief of the defendant letter requested the Korea Asset Management Corporation (hereinafter referred to as the "Defendant Corporation") to conduct a public auction on the suspended portion, and the defendant Corporation continued to conduct a public auction on the suspended portion and made a decision on January 5, 2005 to sell the goods to a purchaser of Kim ○-ran (hereinafter referred to as the "sale disposition of this case").

H. Meanwhile, around August 2004, the Plaintiff, as co-owners of the instant land by Seoul Central District Court Decision 2004Da282160, filed a lawsuit against ○○ Branch against ○○○ Branch, and filed a lawsuit against the Korea Workers’ Compensation & Welfare Corporation and the Republic of Korea seeking cancellation of each of the above registration of seizure, and accepted the claim against ○○ Branch on April 14, 2005, and rendered a judgment dismissing the claim against the Korea Workers’ Compensation and Welfare Corporation and the Republic of Korea, and became final and conclusive around that time.

I. On January 20, 2005, the Plaintiff filed an objection against the sales disposition of this case with the Defendant Corporation. On February 14, 2005, the Defendant Corporation deemed the above objection as an objection or a request for examination under the Framework Act on National Taxes concerning the seizure disposition and sales disposition of this case and transferred it to the Defendant Director.

(j) On March 4, 2005, Kim ○-ran paid in full the proceeds from the sale disposition of this case, and completed the registration of ownership transfer on May 3, 2005.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 10, Eul evidence 1, Eul evidence 1, Eul evidence 1 and 5, the purport of the whole pleadings

2. Determination on the main defense of Defendant Corporation

A. On the grounds that the Plaintiff sought the revocation of the instant sales disposition against the Defendant Corporation, the Defendant Corporation’s assertion that this part of the lawsuit was subject to the filing period.

B. The National Tax Collection Act provides that "the director of the tax office may have the Korea Asset Management Corporation execute the public auction on his behalf, and in this case, the public auction shall be deemed to have been conducted by the director of the tax office (the proviso of Article 61 (1))." Thus, an objection and a request for trial against the sale disposition of Defendant Corporation shall be made under the Framework Act on National Taxes, and furthermore, notwithstanding Article 20 of the Administrative Litigation Act, the administrative litigation against it shall be instituted within 90 days from the date when the decision on

C. However, on January 20, 2005, the Plaintiff filed an objection against the disposition of sale of this case with the Defendant Corporation and the facts that the Defendant Corporation transferred the above objection to the Defendant Company on February 14, 2005 are as seen earlier, and furthermore, if the purport of the entire pleadings is added to the entries in Gap evidence Nos. 5, 6, and Eul evidence Nos. 2 through 4, the dismissal of the above objection on April 14, 2005 by the Defendant Secretary No. 1, ② The Plaintiff filed an appeal with the National Tax Tribunal on June 21, 2005, ② the Plaintiff dismissed the above appeal on November 9, 2006, ③ the Plaintiff filed an action against the Defendant Corporation seeking the revocation of the disposition of sale of this case, respectively.

D. According to the above facts, even though the initial objection raised against Defendant Corporation other than the chief of a tax office was “Bbert”W, the Defendant Secretary dismissed the objection after receiving the above objection within the period for raising an objection against the instant disposition, and the Plaintiff filed a request with the National Tax Tribunal for the adjudication of the instant disposition within the period for raising an objection against the instant disposition. As the National Tax Tribunal dismissed the above request, it can be known that the Plaintiff filed a lawsuit within 90 days from the date of the decision of dismissal. Thus, this part of the lawsuit complies with the period for filing a lawsuit under the main sentence of Article 56(3)

E. Therefore, the main defense of Defendant Corporation is without merit.

3. Whether the attachment disposition and sale disposition of this case are legitimate

A. The plaintiff's assertion

The Plaintiff asserts that the attachment and sale disposition of this case are unlawful for the following reasons, and thus, should be invalidated or revoked.

1) Since the Defendants did not notify the Plaintiff of the instant attachment and sale disposition, the instant attachment and sale disposition violated Article 68 of the National Tax Collection Act.

2) The Plaintiff filed a civil lawsuit seeking the cancellation of registration in accordance with the instant attachment disposition, and filed an objection against the instant attachment disposition and sale disposition. The instant sale disposition, which was conducted without suspending a public auction, by disregarding this, violated Articles 50 and 61(3) and (4) of the National Tax Collection Act, and Article 55(1) of the Enforcement Decree of the National Tax Collection Act.

3) In the instant attachment disposition, there are grounds for cancellation of attachment under Article 53(1)2 or 3 of the National Tax Collection Act and Article 55(2) of the Enforcement Decree of the National Tax Collection Act.

4) The instant attachment disposition and sale disposition are considerably larger than the public interest pursued by the Defendants, and the Defendants intentionally concealed the fact of public auction with respect to the ○○ Suspension portion to the Plaintiff. As such, the instant attachment disposition and sale disposition violated the principle of proportionality.

5) The Defendants committed the instant attachment disposition and the instant sale disposition in accordance with the public auction that took place by hand without deceiving the Plaintiff, etc. while disregarding the fact that the actual owner of the ○○ Suspension is the Plaintiff, etc. and the dispute on the ○○ Suspension continues to exist. As such, the instant attachment disposition and the sale disposition violated the principle of good faith.

(b) Related statutes;

Article 24 (Requirements for Attachment)

Article 50 (Third Party’s Claim on Ownership)

Article 53 (Requirements for Release of Attachment)

Article 61 (Public Auction)

Article 67 (Method and Public Notice of Public Auction)

Article 68 (Public Auction Notice of National Tax Collection Act)

C. Determination

1) As to the Plaintiff’s first argument

A) Pursuant to Article 68 of the National Tax Collection Act, when the head of a tax office issues a public auction notification, he/she shall immediately notify the delinquent taxpayer (Article 1), the owner of the security for tax payment (Article 2), the co-owner (Article 3) in cases where the property for public sale is the share of the common property, and the owner of the right to lease on a deposit basis, the pledge right, the mortgage, or any other right (Article 4). Here, the plaintiff asserts that he/she is the person subject to notification under Article 68 (1) 2 or 4 of the National Tax Collection Act. However, although the plaintiff asserts that he/she was in an internal title trust relationship with the ○ branch, the plaintiff cannot be deemed as the "owner of the security for tax payment" or "person who has the right to lease on a deposit basis, the pledge right, the mortgage or any other right to the property for public sale (Article 68 (1) 3).

B) However, according to the overall purport of evidence Nos. 4-1, 4, 7, 10, 13, 16, and 19 of the evidence Nos. 4-2 and the whole purport of the pleadings, the defendant Corporation issued a public auction notification as to the suspended portion on February 18, 2004 and sent a public auction notification stating the contents thereof to the plaintiff seven times from February 18, 2004 to November 3 of the same year. In light of the above, since the defendant Corporation appears to have given a public auction notification as proxy and notified the plaintiff immediately after the public auction notification, it cannot be deemed that Article 68 of the National Tax Collection Act has been violated.

C) On this point, the Plaintiff asserted to the effect that, although the Defendant Corporation was aware of another address of the Plaintiff that could be served through the relevant civil procedure and was able to notify the Plaintiff of the details of the public auction, the Plaintiff continued to send the notice of the public auction to the Plaintiff’s weather address, and thus, it was no longer effective. However, it is difficult to deem the above Defendant’s notice to be null and void only with the circumstances required by the Plaintiff, and even if otherwise, in light of the fact that the Plaintiff had been well aware of the public auction at the time of the above public auction notice, such as filing a civil lawsuit in relation to the instant attachment disposition, etc., it is difficult to see that the defect in the notification procedure is so serious as to make the instant attachment disposition and sale unlawful, this part of the Plaintiff’s assertion is without merit.

2) As to the second argument of the Plaintiff

A) According to Article 50 of the National Tax Collection Act and Article 55 (1) of the Enforcement Decree of the National Tax Collection Act, a third party who wishes to claim ownership of the attached property and request the return thereof shall submit evidentiary documents proving the ownership of the attached property to the head of a tax office (the Defendant Corporation) by no later than five days prior to the sale, and in such a case, the tax official shall suspend the execution of the disposition on default of the property. However, as seen earlier, the Plaintiff filed a lawsuit against the Republic of Korea for the cancellation of the registration of the seizure in accordance with the seizure disposition of this case on August 2004. However, the Plaintiff cannot be deemed to have violated the above provisions on the premise that “the Plaintiff submitted evidentiary documents proving the ownership of the Defendant Corporation.” In addition, the cases cited by the Plaintiff in relation to this part shall not interfere with this interpretation). In addition, as seen earlier, the Plaintiff did not raise an objection against the sale disposition of this case to the Defendant Corporation on January 20, 2005, since it did not comply with the above provisions after the sale disposition of this case.

B) Article 61(3) of the National Tax Collection Act provides that "property attached to the extent of the estimated amount of national taxes which could not be collected after the determination of national taxes," shall not be put up for a public auction until the obligation to pay the national taxes related to the attachment becomes final and conclusive. Article 61(4) provides that "property attached due to the delinquency in payment of the national taxes for which an objection, a request for review, or a request for a trial is pending under the Framework Act on National Taxes, shall not be put up for a public auction before the decision on the objection or request becomes final and conclusive." Thus, unless there is any evidence to deem the suspended amount of national taxes as the attached property stipulated in the above provisions, the sale disposition of this case shall not be

3) As to the third argument by the Plaintiff

According to Article 53(1) of the National Tax Collection Act, when the head of a tax office deems that a third party’s claim for ownership by a third party under Article 50 of the National Tax Collection Act is well-grounded (Article 50(2)) or when the third party proves that he/she has won a favorable judgment by filing a lawsuit on ownership against the delinquent taxpayer (Article 50(3)), he/she shall immediately release the attachment. Meanwhile, Article 55(2) of the Enforcement Decree of the National Tax Collection Act provides that where a reason for other claim is justified under Article 50 of the National Tax Collection Act, the seizure must be immediately cancelled. However, unless the Plaintiff did not submit evidentiary documents which can be confirmed as the owner of the Defendant Corporation pursuant to Article 50 of the National Tax Collection Act (see Article 50(2)) in a civil lawsuit against the head of the tax office at the time of the instant attachment disposition or the instant sales disposition, it cannot be deemed that there are any other reason for cancellation

4) Even when considering all the circumstances alleged by the Plaintiff as to the Plaintiff’s fourth assertion, it is difficult to readily conclude that the private interest infringed upon by the instant attachment disposition and sale disposition is much larger than the public interest pursued by the Defendants. Moreover, there is no evidence to support that the Defendants intentionally concealed the public sale of the ○ Suspension portion to the Plaintiff (i.e., the Plaintiff appears to have specified his/her address in the said civil lawsuit only in its corporate registration, on a different premise, since the Plaintiff appears to have specified his/her address in the said civil lawsuit, it is difficult to view that the Defendant corporation sent a notice of public sale to the said address on a different premise, on the other premise, that the Plaintiff intentionally concealed the public sale of the instant case to the Plaintiff.) and on another premise, the attachment disposition and sale disposition cannot

5) As to the plaintiff's fifth argument

In light of all other circumstances asserted by the Plaintiff, the attachment disposition and sale disposition of this case cannot be deemed to have violated the principle of good faith, even if the Defendants intentionally concealed the public sale of the ○ Suspension portion, or the actual owner of the ○ Suspension portion was aware of the fact that they were the Plaintiff, etc. in performing the attachment disposition and sale disposition of this case.

6) Sub-decisions

Therefore, all of the plaintiff's arguments are without merit, and there is no error of law as alleged by the plaintiff in the attachment and sale disposition of this case.

4. Conclusion

Therefore, all of the plaintiff's claims seeking nullification or revocation of the attachment disposition and sale disposition of this case are dismissed as it is without merit. It is so decided as per Disposition.