Whether the disposition rejecting cancellation of real estate attachment is unlawful

The disposition of refusal to cancel the attachment is also a disposition of arrears under the National Tax Collection Act and is subject to the prior trial procedure as provided by the Framework Act on National Taxes, but the lawsuit of this case is illegal to have been filed without legitimate prior trial procedure.

Article 24 of the National Tax Collection Act

2016Guhap60615 Revocation of Disposition Rejecting Attachment of Real Estate

BAA

○ Head of tax office

May 31, 2016

July 19, 2016

1. The instant lawsuit shall be dismissed.

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

Cheong-gu Office

On January 7, 2016, the defendant's disposition of rejecting the attachment of real estate against the plaintiff is revoked.

1. Details of the disposition;

A. On November 1, 2011, the Defendant attached Apt ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○”).

B. On May 24, 2012, the Plaintiff completed the registration of ownership transfer on the instant real estate on the grounds of sale on the same day.

C. On February 9, 2015, the Plaintiff: (a) filed a civil petition for grievance with the Anti-Corruption and Civil Rights Commission for the cancellation of the instant seizure disposition on the ground that the Plaintiff’s sales of the instant real estate was in arrears before the instant seizure disposition was taken; and (b) filed a civil petition for grievance with the Anti-Corruption and Civil Rights Commission on March 12, 2015, which was transferred by the Anti-Corruption and Civil Rights Commission to the effect that the Plaintiff would not accept the Plaintiff’s request on March 12, 2015 (hereinafter “Disposition”).

D. On September 8, 2015, the Plaintiff decided that the Anti-Corruption and Civil Rights Commission (“the Anti-Corruption and Civil Rights Commission”) recommended the Defendant to cancel the attachment disposition of the instant real estate. On December 14, 2015, the Plaintiff again requested the Defendant to cancel the attachment disposition of the instant real estate.

E. On January 7, 2016, the Defendant responded to the purport that “the Plaintiff, on February 9, 2015, notified the Plaintiff that the processing result was already dispatched due to the cause overlapping with the grievance filed by the Plaintiff.”

[Reasons for Recognition] Facts without dispute, Gap's statements in Gap's 1, 10 through 16 (including each number in case of a tentative number), the purport of the whole pleadings

2. The parties' assertion

The Plaintiff, prior to the instant attachment disposition, received the instant real estate from Art ○○○ prior to the instant attachment disposition, completed the move-in report in full, and the Plaintiff paid all the relevant tax amount with trust and notification of the tax amount in arrears from the mid-to long-term regional tax office at the time of the Plaintiff’s registration of transfer of ownership concerning the instant real estate. The Defendant’s refusal of the instant attachment disposition on January 7, 2016 violates the principle of trust and good faith, and thus, the Defendant’s refusal of the Plaintiff’s request for cancellation of attachment on the instant real estate should be revoked by unlawful means.

As to this, the defendant's response on January 7, 2016 does not constitute an administrative disposition subject to a revocation lawsuit, and the plaintiff did not go through a prior trial procedure. The plaintiff is a person who completed the registration of ownership transfer concerning the real estate of this case after the instant attachment disposition and completed the registration of ownership transfer due to the cancellation of attachment, and the plaintiff has a de facto and indirect interest, so the cancellation of the attachment disposition of this case has no standing to dispute the cancellation of the attachment disposition of this case, and further, the attachment disposition of this case is lawful.

3. Determination on this safety defense

A. First, we examine whether the Defendant’s answer to the Plaintiff on January 7, 2016 constitutes an administrative disposition subject to revocation litigation regarding the cancellation of the instant attachment disposition.

The issue of whether a certain act of an administrative agency can be the subject of an appeal cannot be determined abstractly and generally, and in specific cases, an administrative disposition is a law enforcement with regard to specific facts conducted by an administrative agency as the subject of public authority, which directly affects the rights and obligations of the people. The decision shall be made individually taking into account the content and purport of the relevant Acts and subordinate statutes, the subject, content, form and procedure of the act, the actual relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law, the attitude of the administrative agency and interested parties related to the pertinent act, etc. (see, e.g., Supreme Court Decision 2009Du23617, 23624, Mar. 10, 201). In addition, a new rejection disposition should be deemed to have been rendered where the competent administrative agency expresses its intention of refusal against a citizen’s application for disposition, and subsequent refusal is again made with respect to a new application for the same content (see, e.g., Supreme Court Decision 96Nu15251).

As seen earlier, the Plaintiff filed a civil petition for grievance with the Anti-Corruption and Civil Rights Commission to the effect that it would request the cancellation of the instant attachment disposition, and received a disposition from the transferred Defendant on March 12, 2015 that the Plaintiff would not accept the Plaintiff’s request for cancellation. After then, the Defendant requested the Defendant to cancel the instant attachment disposition pursuant to the resolution of the Anti-Corruption and Civil Rights Commission. On January 7, 2016, the Defendant sent an answer that “the request for cancellation was already sent for treatment as a cause overlapping with the previous civil petition for grievance,” and expressed that the Plaintiff cannot accept the request for cancellation. In light of the above overall progress, it is reasonable to view that the Defendant’s response to the Plaintiff on January 7, 2016 was a new rejection disposition independent of the previous rejection disposition by again declaring the Plaintiff’s rejection request for the cancellation of the instant attachment disposition (hereinafter referred to as “instant rejection disposition”). Accordingly, this is subject to revocation lawsuit (hereinafter referred to as “instant rejection disposition”).

B. Next, we examine whether the rejection disposition of this case goes through the previous trial procedure.

According to Articles 56(2), 61(1), and 68(1) of the Framework Act on National Taxes, where an administrative litigation is instituted against a disposition under the Framework Act on National Taxes or other tax-related Acts, a request for examination or adjudgment under the Framework Act on National Taxes shall be filed within 90 days from the date (if a notice of disposition is received, the date of receipt) on which the relevant disposition is known. Meanwhile, Article 2 subparag. 2 of the Framework Act on National Taxes stipulates that the National Tax Collection Act as one of the tax-related Acts and the National Tax Collection Act provides for the seizure and cancellation as a procedure for disposition on default under Articles 24(1), 53, and 54 of the National Tax Collection Act. Thus, a person who is dissatisfied with such disposition as a disposition on default under the National Tax Collection

In the case of this case, the plaintiff was aware that the rejection disposition of this case reached the plaintiff on January 7, 2016. Thus, it is clear that the plaintiff did not file a request for examination or a request for trial under the Framework Act on National Taxes within 90 days thereafter. Thus, the lawsuit of this case is unlawful as it is filed without lawful pre-trial procedure. Accordingly, the defendant's defense of this case is justified.

4. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.