[1] In a lawsuit of demurrer against distribution, whether the defendant may assert that the amount of money, which the plaintiff raised an objection against the distribution, was distributed to other claims excluded from the distribution (affirmative)

[2] In a case where the tax authority made a request for the issuance of delinquent tax amount at an auction procedure, whether the priority right under the substantive law is extinguished (negative)

[3] The case holding that in a lawsuit of demurrer against distribution, a priority may be claimed on the actual statutory date in a lawsuit of demurrer against distribution where the tax authority requested the issuance of the tax amount in arrears during the voluntary auction procedure and excluded the statutory date of the tax prior to the date on which the registration date of establishment was erroneously stated as the date after the date

[1] In a lawsuit of demurrer against distribution, the defendant may make all arguments that can dismiss the plaintiff's claim by means of defense. Thus, the defendant may assert that the amount of money that the plaintiff raised against the plaintiff was demanded by the defendant, but excluded from the distribution should be distributed to other claims. This also applies to the case where the defendant did not make an objection against the distribution based on the claims excluded from the distribution.

[2] Even if the tax authority erroneously stated the statutory date in filing a claim for the amount of delinquent tax in the auction procedure, the priority right under substantive law is not extinguished as long as the claim for the amount of delinquent tax is legitimate.

[3] The case holding that the priority can be claimed at the actual statutory date in a lawsuit of demurrer against distribution in a lawsuit of demurrer against distribution where the tax authority requested the issuance of the tax amount in arrears during the voluntary auction procedure and excluded the statutory date of the tax prior to the date on which the registration date of establishment was erroneously stated as the date after the date of establishment registration

[1] Article 154 of the Civil Execution Act / [2] Article 154 of the Civil Execution Act / [3] Article 154 of the Civil Execution Act

[1] Supreme Court Decision 2004Da9398 decided Jun. 12, 2004 (Gong2004Ha, 1242)

Busan Solomon Mutual Savings Bank (Law Firm Samdeok, Attorneys Kim Ba-young, Counsel for defendant-appellant)

Seoul High Court Decision 200Na14887 decided May 2, 200

Korea

Busan High Court Decision 2007Na16946 decided April 8, 2008

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff and the Intervenor to the Plaintiff.

The Plaintiff and the Plaintiff’s Intervenor’s respective grounds of appeal are also examined.

1. Comprehensively taking account of the evidence as stated in the judgment below, the court below found the above 20-100 won for the 20-6-20-6-2-6-6-2-6-2-6-6-6-2-6-6-6-6-6-6-6-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-1-7-7-7-77-77-77-77-77-77-777-7-7-77-77-7-77-777-7

In a lawsuit of demurrer against a distribution, the defendant may make all arguments that can dismiss the plaintiff's claim as defense (see Supreme Court Decision 2004Da9398, Jun. 12, 2004). The defendant may assert that the amount of the plaintiff's objection against a distribution should be distributed to the defendant's other claims on the ground that the plaintiff can be rejected's claim, and the same applies to the case where the defendant did not raise an objection against a distribution based on other claims. Meanwhile, even if the tax authority erroneously stated the statutory date in the auction procedure, the priority right under the substantive law is not extinguished as long as the claim for delivery is legitimate.

Upon examining the facts acknowledged by the court below in light of the above legal principles, even if the court of execution erred by the defendant's distribution of 58,624,729 won of the above earned income tax against the plaintiff, the above amount should be distributed to the defendant which takes precedence over the plaintiff's right to collateral security, and thus, it is reasonable that the court of execution distributes the above amount to the defendant. Thus, the court below accepted the defendant's assertion to this purport and dismissed the claim of this case by the plaintiff and the successor, and there is no violation of the rules of evidence, nor any error of law

Supreme Court Decision 2001Da11055 Decided January 25, 2002 cited in the grounds of appeal may not be invoked in this case with the different purport from the case.

2. The court below rejected the successor's assertion that "the defendant requested delivery on April 1, 2002 with the statutory date of each of the above value-added tax on two auction cases, and the defendant's assertion that the statutory date was wrong even though the auction procedure was in progress, it goes against the good faith principle." In light of the relevant legal principles, the judgment of the court below is just, and there is no violation of law by misunderstanding the legal principles on the good faith principle, contrary to what is alleged in the grounds of appeal.

3. Therefore, all appeals are 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 Lee Hong-hoon (Presiding Justice)