Plaintiff (Attorney Kim Yong-hwan, Counsel for the plaintiff-appellant)

Korea

April 29, 2010

Busan District Court Decision 2008Kadan40483 Decided January 12, 2010

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 defendant shall pay to the plaintiff 70 million won with 5% interest per annum from October 20, 2008 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Facts of recognition;

The following facts are not in dispute between the parties, or there is no counter-proof as to Gap evidence 1, Eul evidence 1 through 3, and the fact inquiry results to the head of the Daegu Innovation City Construction Center at the court of first instance, and the purport of all pleadings.

A. Nonparty 2, on January 28, 1994, filed a registration of the establishment of a neighboring building consisting of KRW 70,000,000 and Nonparty 1 with respect to the 512 square meters (hereinafter “instant real estate”) prior to the Daegu Dong-dong, Daegu-gu (hereinafter “Non-party to the judgment of the Supreme Court”) owned by Nonparty 1 (hereinafter “instant real estate”).

B. Since then, on September 27, 2000, the Plaintiff completed the additional registration on the transfer of the right to collateral security on the same day on the ground that the above non-party 2’s right to collateral security was transferred on the instant real estate.

C. On March 20, 1995, the Seogu Tax Office under the Defendant attached the instant real estate on the grounds of Nonparty 1’s default of national taxes, and completed the attachment registration on March 24, 1995.

D. On August 28, 2008, the Central Land Tribunal decided to expropriate nearby land including the instant real estate as of October 21, 2008 for Daegu Innovation Urban Development Project, and notified the owner, the interested party, and the plaintiff and the defendant, etc. of the exercise of necessary rights by giving notice of land expropriation by means of sending the authentic copy of the written adjudication of expropriation.

E. Accordingly, on October 1, 2008, the director of the Seogu Daegu District Tax Office under the defendant's jurisdiction requested the head of the Daegu Innovation City Construction Project Association to attach the land expropriation compensation claims of Non-party 1 pursuant to Article 41 (1) of the National Tax Collection Act on the ground that Non-party 1 defaulted in payment of capital gains tax of KRW 199,79,796,550. Accordingly, on October 20, 2008, the Korea Land Corporation, which is the project operator, requested the above project operator, to pay the compensation amount of KRW 130,35,780 out of the compensation amount of KRW 130,35,780, the 59,780 out of the compensation amount of KRW 15,612,220 to the Daegu-gu East District Office, Daegu District Office, and KRW 114,683,20 on October 21, 2008.

2. Determination as to the cause of action

A. Determination on the claim for restitution of unjust enrichment

1) The assertion

The plaintiff asserts that the plaintiff should return the amount to the plaintiff as unjust enrichment because the plaintiff is the first priority holder of the right to collateral security, so it should not be paid with the maximum debt amount equivalent to the compensation amount of the land of this case by exercising the right to collateral security by subrogation, even though the defendant received such payment and incurred losses to the plaintiff.

2) Determination

Article 370 and the proviso of Article 342 of the Civil Act stipulate that a mortgagee shall attach money or other things to be received by the mortgagee before the payment or delivery in order to exercise the subrogation right is to maintain the specificity of the claim which is the object of subrogation, to preserve its validity, and not to inflict any loss on the third party. Thus, as long as money or other things which are modified objects of the mortgaged object have already been seized by a third party and the money or things have been specified, the mortgagee may exercise his subrogation right and obtain preferential repayment from the general creditor even though he did not attach them by himself. However, the exercise method is a submission to the court of execution of documents proving the existence of the security right under Article 273 of the Civil Execution Act to request the seizure of the claim and order, or demand the distribution under Article 247(1) of the Civil Execution Act. Thus, the mortgagee cannot obtain preferential reimbursement from the compensation without proceeding to exercise such subrogation right, and even if the mortgagee has not lost his right to preferential reimbursement from other creditors or 201.

With regard to the instant case, the secured claim of the instant mortgage is a claim prior to the above national taxes, and as long as the instant real estate, which is the object of the mortgage, is expropriated, the right to request the payment of land expropriation compensation by Nonparty 1, which is the modified object of the mortgaged object, pursuant to Articles 370 and 342 of the Civil Act, and Article 47 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, has become the object of subrogation. However, as seen earlier, before the Plaintiff, who is the mortgagee, applies for seizure and order for the right to request the payment of land expropriation compensation, the head of Seogu District Tax Office under the Defendant’s jurisdiction, attached the right to claim the payment of land expropriation compensation under Article 41(1) of the National Tax Collection Act as part of the disposition procedure for arrears, acquired the right to collect the land expropriation compensation by subrogation of Nonparty 1, and received the land expropriation compensation from the Korea Land Corporation as part of such collection right holder’s qualification, the Plaintiff’s right to subrogation based on the right has become final and void.

Therefore, since the head of Seogu Tax Office under the defendant's jurisdiction cannot be viewed as a benefit without any legal ground in relation to the plaintiff who lost preferential right to payment of national taxes, the plaintiff's assertion that the defendant's compensation for land expropriation received by the defendant under the premise that the right to preferential payment is maintained is unjust.

B. Determination on the claim under the National Tax Collection Act

1) The assertion

The plaintiff asserts to the effect that the plaintiff constitutes a creditor secured by a mortgage related to the attached property under Article 81 (1) 3 of the National Tax Collection Act, and the defendant first appropriated the amount of the maximum debt to the plaintiff in arrears despite the duty to distribute the maximum debt amount to the plaintiff pursuant to the above Article 81 (1) 3 of the National Tax Collection Act.

2) Determination

In addition, Article 81 (1) 3 of the National Tax Collection Act provides that "a claim secured by the right of lease on a deposit basis, pledge, or mortgage related to attached property" shall be distributed as a claim for distribution in relation to the distribution of money, and Article 81 (5) of the same Act provides that "a claim which takes precedence over the national taxes shall be distributed or appropriated first to the delinquent amount due to an error in the distribution order, an improper request for delivery, or any other similar reasons, if the director of the tax office distributes or appropriates the amount of money in preference to the delinquent amount due to the distribution order in spite of the existence of the claim which takes precedence over the national taxes, the amount of money distributed or appropriated shall be paid to the creditor who takes precedence over the national taxes." However, the term "claim secured by a mortgage" under Article 81 (1) 3 of the same Act means that the attached property is related to the attached property. In this case, the defendant's attached claim for land expropriation compensation by Nonparty 1 is not the real estate of this case, and therefore the plaintiff'

3. Conclusion

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

Judges Heung-Jung (Presiding Judge)