Whether the actual impossibility of exercising the right to indemnity due to the insolvency of the principal debtor has an effect on the attribution of capital gains where the ownership of the property owned by the property pledged by the voluntary auction is transferred (=the person to secure another's property).

(negative)

In a voluntary auction for the execution of a right to collateral security, the successful bidder shall acquire the ownership of the real estate by realizing the contents of the right to collateral security. Thus, even though the registration of the establishment of a right to collateral security, which is the basis of the voluntary auction, has been made as the collateral guarantee for the third party's obligation, the transferor of the object of auction is the surety's property and the successful bid price belongs to the transfer income of the surety's property as the owner of the object of auction, and the right to indemnity against the principal obligor is the effect of subrogation as the payment of the successful bid price is recorded in the repayment of the secured obligation which the principal obligor bears, and it is not in accordance with the nature of the auction, and even if it is practically impossible to exercise the right to indemnity due to the insolvency of the principal obligor

Articles 23 (1) and 23 (2) of the Income Tax Act

Supreme Court Decision 86Nu60 Decided May 27, 1986 (Gong1986,826) 85Nu736 Decided September 23, 1986 (Gong1986,2962) 87Nu941 Decided February 9, 1988 (Gong1988,536)

Attorney Kim Jong-chul et al., Counsel for the defendant-appellant

Head of the tax office

Seoul High Court Decision 87Gu11 delivered on May 29, 1990

All appeals are dismissed.

Costs of appeal shall be borne by each party.

1. Plaintiff’s ground of appeal

(1) In the voluntary auction for the exercise of a right to collateral security, the successful bidder acquires the ownership of the real estate by realizing the contents of the right to collateral security. Thus, even if the establishment registration of a neighboring mortgage, which is the basis of the voluntary auction, was made as the collateral guarantee for the third party's obligation, the transferor of the object of auction is the surety's property and the proceeds of the auction are also attributed to the property of the surety's property as capital gains, the owner of the object of auction, and the right to indemnity against the principal obligor of the secured obligation, which is the principal obligor, is not effective as the result of the payment of the secured obligation, and it is not in accordance with the nature of the auction, and it is not in fact impossible to exercise the right to indemnity due to the insolvency of the principal obligor, such circumstance does not affect capital gains (see Supreme Court Decision 87Nu941 delivered on February 9, 198).

In this view, it is proper that the original judgment recognized that the Plaintiff has such capital gains as such, and there is no error in the misapprehension of legal principles or in violation of the rules of evidence.

(2) According to the reasoning of the judgment in the original judgment, the plaintiff rejected the evidence consistent with the plaintiff's argument that the purchase price for the real estate purchased from the non-party Red Net Profit amounting to KRW 202,00,000 on the attached list of real estate in the original judgment, and recognized that the real acquisition price of the above real estate cannot be confirmed by the standard market price based on the conversion method of the acquisition price of the above real estate, and it is reasonable to accept the above evidence and to find facts in the original judgment, and there is no error in the misapprehension of the rules of evidence, as well as in the misapprehension of the rules of evidence, lack of reasons, and inconsistency

2. As to the Defendant’s ground of appeal

According to the reasoning of the judgment of the court below, the real purchase price of the real estate listed in Paragraph (3) of the annexed Table 1 in the original judgment is 434,247,797 won, and as above, since the real acquisition price of the above real estate has been confirmed, the above real acquisition price should be calculated with the acquisition price. The above fact-finding of the court below is proper and it cannot be said that there is an error of law of incomplete deliberation or omission of judgment, such as the theory of lawsuit, and therefore, it is groundless

3. All appeals are dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Yoon Young-young (Presiding Justice)