Where the registration of transfer of ownership is made after the remainder is paid in full, attachment disposition is legitimate.

Even though officetels has been sold in lots and the remainder has been fully paid: Provided, That where the registration of ownership transfer has been made after the date of seizure, attachment disposition is legitimate.

Article 45 of the National Tax Collection Act: Attachment Procedure for Real Estate

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The attachment disposition taken by the defendant on March 25, 2005 against one half of the real estate in the name of ○○ stock company (hereinafter referred to as “non-party company”) among the real estate listed in the separate sheet (hereinafter referred to as the “real estate in this case”).

1. Circumstances and facts of the disposition;

The following facts may be acknowledged in full view of the whole purport of the pleadings in each statement of Gap evidence Nos. 1 through 14 and Eul evidence Nos. 1 through 3:

A. On April 24, 2002, the Plaintiff sold the instant real estate jointly between the non-party company and the ○○ Company.

B. On March 15, 2004, the non-party company and the ○○○ corporation completed the registration of initial ownership relating to one half of each of the instant real estate portion.

C. On March 29, 2004, the Plaintiff paid the acquisition tax, registration tax, and local education tax on the instant real estate to the head of ○○○○○○ on April 20, 2004, after full payment of the remainder for the instant real estate.

D. On October 27, 2004, the Plaintiff paid each of the property tax (building) and aggregate land tax on the instant real estate to the head of ○○○○○ Office.

E. On March 25, 2005, the Defendant seized the shares of the non-party company out of the instant real estate in order to collect KRW 634,929,440 from time to time the non-party company defaulted on February 2, 2005 (hereinafter the instant attachment disposition).

F. The Plaintiff completed the registration of ownership transfer of the instant real estate on May 19, 2005.

2. Determination on the legality of a disposition

A. Summary of the plaintiff's assertion

(1) The assertion that the substance over form principle is violated

The Plaintiff is the actual owner of the instant real estate, and the Defendant also knew of these circumstances, but did not complete the registration of ownership transfer. As such, the instant attachment disposition was rendered.

Therefore, the Defendant’s attachment disposition of this case is against the part of the instant real estate owned by the Plaintiff, and should be revoked as it is against the principle of substantial taxation.

(2) Claim on cancellation of attachment

As alleged above, the Defendant’s disposition of this case’s seizure is null and void as it was conducted against the Plaintiff’s property, which is a third party, not the non-party company, which is the delinquent taxpayer.

(3) argument on violation of the principle of trust protection.

The Defendant notified the Plaintiff of the aggregate land tax, etc. on the premise that the instant real estate is owned by the Plaintiff, and had the Plaintiff pay the said tax, etc., but the instant seizure disposition was rendered by asserting that the instant real estate was owned by the Nonparty Company, etc., other than the Plaintiff.

Therefore, the Defendant’s attachment disposition of this case is unlawful against the principle of trust protection.

(4) Claim as to violation of the principle of balancing interests

Since the property rights of the people are guaranteed under the Constitution, in the execution of the seizure disposition of this case by the defendant, the public interest should be increased by balancing the interests between the public interest achieved by the seizure disposition of this case and the defendant's property rights infringed. The seizure disposition of this case to the extent that the plaintiff's ownership is deprived of, is unlawful, since it violates the principle of balancing profits,

(5) argument as to the defect in administrative procedure

In accordance with Articles 23 and 24 of the National Tax Collection Act, the defendant shall seize the property of the non-party company, among the real property of this case, through a procedure such as demand notice and demand against the non-party company who is liable for tax payment, pursuant to Article 23 and 24 of the National Tax Collection Act, and it cannot be said that the non-party company had undergone such procedure before the seizure disposition of this case. Thus, the seizure disposition of this case

B. Determination

(1) As to the assertion of violation of substance over form principle

The substance over form principle is only applicable to the taxation disposition, which is based on the substance of attribution, in determining the taxation requirements under each tax-related Act, and it is not the principle applied to the collection disposition such as this case. The instant seizure disposition was conducted to secure the tax liability of the non-party company that is the taxpayer, and thus, it cannot be deemed that the said disposition is contrary

Therefore, this part of the Plaintiff’s assertion is without reason to further examine.

(2) On the assertion on cancellation of attachment

In light of the provisions of Article 186 of the Civil Act that the acquisition, loss, and transfer of real rights by a juristic act on real estate takes effect, insofar as the real estate in this case has not been registered by the time of the registration of seizure of this case, the ownership transfer registration under the name of the plaintiff is still owned by the non-party company (see, e.g., Supreme Court Decision 86Nu744, Apr. 14, 1987). There is no evidence to acknowledge that the plaintiff acquired the ownership of the real estate in this case.

Therefore, the Defendant’s seizure disposition of this case is legitimate, and the Plaintiff’s assertion on this part is also without merit.

(3) As to the assertion on violation of the principle of trust protection

Since notification of imposition of aggregate land tax, etc. to the plaintiff is not the defendant but the head of ○○○ Office, the plaintiff's assertion on this part under the premise that the defendant is the same corporate body as the head of ○○ office is without merit.

Even if not, in light of the subject, method, subject, and purpose of taxation, when considering the fact that the head of ○○ head imposed the aggregate land tax, etc. on the Plaintiff, the Defendant expressed a public opinion recognizing the Plaintiff as a legitimate owner of the real estate in this case, or given any trust to the Plaintiff in this regard. Therefore, this part of the Plaintiff’s assertion is without merit.

(4) As to the assertion on violation of the principle of balancing interests

In this case, even if the Plaintiff lost ownership due to the attachment disposition of this case, it cannot be deemed that the Plaintiff violated the Plaintiff’s property right against the principle of profit balancing, and thus, this part of the Plaintiff’s assertion is not final.

(5) As to the assertion on the administrative procedural defect

In full view of the evidence as mentioned above and evidence Nos. 4 and the purport of the argument as a whole, it is reasonable to deem that the defendant was subject to the attachment disposition of this case through necessary procedures such as notice of tax payment and demand notice under the National Tax Collection Act. Thus, the plaintiff's part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in its conclusion, and it is so decided as per Disposition by the plaintiff.