[1] Legislative intent of Article 31 (2) 3 of the Local Tax Act and the scope of "national tax imposed on the property" under the proviso of the same Article (the pertinent tax)

[2] Whether the aggregate land tax and urban planning tax referred to in the proviso of Article 31 (2) 3 of the Local Tax Act fall under the so-called "local tax imposed on the property" (affirmative with restriction on aggregate land tax, urban planning tax =affirmative)

[1] The legislative intent of Article 31 (2) 3 of the Local Tax Act is to properly harmonize the judicial request (judicial) to ensure the safety of transaction and the public interest request to secure the realization of tax claims with respect to the secured real right accompanying the public disclosure. Thus, even if the pertinent tax has priority over claims secured by the secured real right, the essential contents of the secured real right shall not be infringed, and therefore, the "local tax imposed on the property" referred to in the proviso of Article 31 (2) 3 of the Local Tax Act means local tax imposed on the property by the person who acquired the secured real right can be predicted to the extent that it would be imposed on the property in the future, and it is only a local tax imposed by recognizing the taxable capacity.

[2] In light of the fact that part of the aggregate land tax has a characteristic as profit tax, it is basically a property tax in light of the fact that it starts from the property tax on land and that the value of land is the tax base under the current law (Article 234-15 (2) of the Local Tax Act). Since it is not considerably difficult for a person who acquires a security interest in light of the taxation requirements such as the object of taxation, taxpayer, tax base, tax rate, etc. to estimate the occurrence of the aggregate land tax on the land in question and the scope of the tax amount, it constitutes a local tax imposed on the property in accordance with the proviso of Article 31 (2) 3 of the Local Tax Act. However, in case of a general aggregate or separate aggregate taxation on all land owned by the same owner, only the part of the land subject to a security interest in real rights among the aggregate land tax imposed on one taxation unit shall be the relevant tax

[1] Article 31 (2) of the Local Tax Act / [2] Article 31 (2) of the Local Tax Act, Article 14-4 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15211 of Dec. 31, 1996) (amended by Act No. 16673 of Dec. 31, 199)

[1] Supreme Court en banc Decision 96Da23184 delivered on March 18, 199 (Gong1999Sang, 715 delivered on September 26, 1989) (Gong2000Da47972 delivered on January 30, 2001 (Gong2001Sang, 535)

Netcheon City

Seongdong Mutual Savings Bank Co., Ltd.

Gwangju District Court Decision 2000Na665 delivered on September 28, 2000

Of the judgment of the court below, the dividend amount equivalent to 39,766,140 won in aggregate of acquisition tax, special rural development tax, and additional taxes and additional dues, and 508,740 won in aggregate of education tax and its additional dues, and the damages for delay are reversed, and this part of the case is remanded to the Panel Division of Gwangju District Court. The defendant's remaining appeal is dismissed.

1. Since the execution of distribution according to the confirmed distribution schedule does not confirm the rights under the substantive law, in case where a person who is obligated to receive distribution did not receive the distribution and received the distribution, he has the right to claim the return of unjust enrichment against the preferential creditor who did not receive the distribution, regardless of whether he raised an objection to the distribution or whether the distribution procedure has been confirmed in the form (see, e.g., Supreme Court Decisions 96Da51585, Feb. 14, 1997; 99Da53230, Oct. 10, 200).

In the same purport, the court below is justified in rejecting the defendant's assertion that a claim for return of unjust enrichment is not allowed even if the plaintiff did not receive any distribution in domestic affairs, inasmuch as the plaintiff's failure to appear on the date of distribution and the distribution schedule became final and conclusive, even if the plaintiff did not appear on the date of distribution, and there is no misapprehension of the legal principles as to the confirmation of

2. In full view of Articles 4, 6(2)1(a) and 53 of the Local Tax Act and Article 41(1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15489, Oct. 1, 1997) (amended by Act No. 4995, Dec. 6, 1995); even if acquisition tax is paid on the Do tax after being paid on the Do tax is merely a performance of the Do tax and thus, the subject to imposition and collection of acquisition tax is the Do (see, e.g., Supreme Court Decisions 97Da8427, Nov. 11, 1997; 9Du2765, Sept. 8, 200) and Article 2 subparag. 1(m) and (e) of the Framework Act on National Taxes or Article 41(1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15489, Oct. 1, 1997);

Nevertheless, the court below erred by misapprehending the legal principles as to the above acquisition tax, special rural development tax, and education tax, and the subject of additional tax, and ordering the plaintiff to return unjust enrichment against the defendant who received erroneous dividends by deeming the subject of attribution of the acquisition tax, special rural development tax, education tax, and additional tax as the plaintiff. Therefore, the defendant's appeal is justified without any need to determine the remaining grounds of appeal as to the above tax, etc. whose subject of attribution is different.

3. Whether it falls under the aggregate land tax, etc.; and

Article 31 (2) 3 of the Local Tax Act (amended by Act No. 4995, Dec. 6, 1995; hereinafter referred to as the "Act") provides that where local taxes and additional dues are collected from among the amounts arising from the sale of property which is the object of the right of lease on a deposit basis, pledge, or mortgage established prior to the statutory due date of local taxes as an exception to the principle of priority of local taxes, claims secured by the right of lease on a deposit basis, pledge, or mortgage shall be excluded from the local taxes and additional dues imposed on the property under the proviso in common title, and the so-called tax imposed on the property sold shall take precedence over claims secured by mortgage, etc. before the statutory due date, and Article 14-4 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 15211, Dec. 31, 1999; hereinafter referred to as the "Enforcement Decree").

Article 31(2)3 of the Act aims to harmonize the judicial request to guarantee the safety of transaction with respect to the secured real right accompanying the public notice with the public interest request in order to secure the realization of tax claims. Thus, even if the pertinent tax has priority over the claims secured by the secured real right, it does not infringe on the essential contents of the secured right. Therefore, the above "local tax imposed on the property" means only the local tax imposed by recognizing the taxable capacity on the property owned by the person who acquired the secured real right, as it can be reasonably predicted that it will be imposed on the property in the future (see, e.g., Supreme Court Decisions 87Meu2515, Sept. 26, 1989; 96Da23184, Mar. 18, 199).

In addition, even if the aggregate land tax has part of the nature as profit tax, it is basically a property tax in light of the fact that it starts from the property tax on land in a historical aspect and the fact that the value of the land is the value of the land under the current law (see Supreme Court Decision 92Nu8163, Apr. 27, 1993). (See Supreme Court Decision 92Nu8163, Apr. 27, 1993).

If so, the aggregate land tax is the "local tax imposed on the property" as provided in the proviso of Article 31 (2) 3 of the Act. However, in the case of general aggregate or separate aggregate taxation imposed on all land owned by the same owner by summing up all land of the same owner, only the part of the land which is the object of the real estate tax, among the aggregate land tax imposed on one taxable unit,

In addition, the urban planning tax of this case imposing 2/1,00 of the land value on a taxpayer of aggregate land tax on land within the area publicly notified as the area subject to imposition of urban planning tax shall be deemed to fall under the relevant tax in light of the nature and predictability of tax.

Therefore, the court below is just in holding that the aggregate land tax and urban planning tax constituted the pertinent tax, and there is no misapprehension of the legal principles as to the pertinent tax, as otherwise alleged in the grounds of appeal.

4. Conclusion

Therefore, without omitting the remaining grounds of appeal, the amount of dividends equivalent to 39,766,140 won in aggregate of acquisition tax, special rural development tax, and additional taxes, and 508,740 won in aggregate of education tax and its additional dues, and each part of the damages for delay are reversed, and this part of the case is remanded to the Panel Division of the Gwangju District Court. The remaining appeal by the defendant is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)