A person who receives dividends from a request made by the tax authority for delivery in the auction procedure commenced through the execution of the right to separation of real estate owned by the bankrupt (=trustee in bankruptcy)

In the auction procedure commenced through the execution of the right to separation on real estate owned by the bankrupt, a claim filed by the tax authority for delivery shall be limited to the limited effect that the right to separate settlement shall prevent profits more favorable than that prior to the bankruptcy due to the bankruptcy, and that the right to separate settlement shall deduct the corresponding amount of claims prior to the right to separate settlement for the public interest (public interest) to secure appropriate dividend resources. Therefore, the dividend on the request for delivery shall not be delivered directly to the tax authority which is the creditor, but the trustee in bankruptcy shall be granted to the trustee in bankruptcy so that the trustee in bankruptcy may repay it to

Articles 7, 40, 41, 42, 62, and 86 of the Bankruptcy Act; Article 56 of the National Tax Collection Act; Article 605 of the former Civil Procedure Act (amended by Act No. 6626 of January 26, 2002) (see current Article 88 of the Civil Execution Act)

[Plaintiff-Appellant] Plaintiff 2001Du9486 delivered on March 28, 2003 (Gong2003Sang, 1088)

Korea

The bankruptcy trustee of a bankrupt public land corporation (Law Firm Gyeong, Attorney Kim Jin-young, Counsel for the bankruptcy trustee)

Seoul High Court Decision 2002Na33191 delivered on November 1, 2002

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The Bankruptcy Act grants a trustee in bankruptcy a right to manage and dispose of the bankrupt estate to realize the fair satisfaction of all creditors (Article 7 of the Bankruptcy Act) so that the trustee in bankruptcy can act as a central organization of the bankruptcy procedure. In particular, with respect to the estate claim including a claim that can be collected pursuant to the National Tax Collection Act or the example of collecting national taxes (hereinafter referred to as "tax claim"), the bankruptcy trustee shall reimburse the total amount of the above estate claim in preference to the general bankruptcy claim, but if it becomes clear that the bankruptcy estate is insufficient to repay the total amount of the above estate claim, the repayment of each estate claim shall be distributed according to the ratio of the amount of the unpaid claim (Articles 38, 40 through 42 of the Bankruptcy Act), and in certain cases, the bankruptcy claim shall be distributed equally to the creditors in accordance with the bankruptcy claim under Article 62 of the Bankruptcy Act (Article 62 of the Bankruptcy Act). In addition, the tax authority's claim to grant the right to separate distribution to the creditors prior to the declaration of bankruptcy should be interpreted as having priority over the dividend claim (see Supreme Court Decision 200328Du1, etc.).

The court below acknowledged the facts as stated in its reasoning based on the evidence of employment. The court below determined that the plaintiff's dividends in this case arising from the claim for payment based on national tax claims, such as corporate tax against public land corporation, which is the bankrupt of the defendant, and that the distribution court did not distribute the dividends to the plaintiff who is the debtor for the delivery, and distributed the dividends to the defendant who is the trustee in bankruptcy. The judgment of the court below is just in accordance with the above legal principles

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)