[1] In a case where a mortgager dies while he is not delinquent, whether the inheritance tax imposed on his heir constitutes the pertinent tax (negative)

[2] Requirements and criteria for determining a defective administrative disposition as a matter of course

[1] Claims secured by a mortgage that is preferentially protected on the national tax are interpreted as based on the duty to pay taxes to the mortgagee, on the basis of the relationship between the mortgagee and the mortgagee at the time of the original mortgage creation. Thus, in the event that the mortgagee dies in a state where there is no tax in arrears to be collected prior to the secured claim, the inheritance tax, which is a national tax imposed on the inheritor, shall not be collected prior to the relevant tax collection.

[2] In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect is a serious violation of the important part of the law, and it should be objectively clear, and the purpose, meaning, function, etc. of the law should be examined from a teleological perspective to determine whether the defect is significant and obvious, and at the same time, reasonable consideration should be made on the specificity of the specific case itself (the case holding that a public sale price allocation disposition, which takes precedence over the national tax, should be considered as the corresponding amount of the inheritance tax imposed on the heir and takes precedence over the secured claim

[1] Article 35(1) of the Framework Act on National Taxes, Article 18(1) of the Enforcement Decree of the Framework Act on National Taxes, Article 29-2(2) of the Inheritance Tax Act / [2] Articles 1 and 19 of the Administrative Litigation Act

[1] Supreme Court Decision 88Da49581 delivered on September 24, 1991 (Gong1991, 2589), Supreme Court Decision 88Da105 delivered on October 8, 1991 (Gong1991, 2670), Supreme Court Decision 93Da49581 delivered on March 22, 1994 (Gong1994, 1313), Supreme Court Decision 94Da11835 delivered on April 7, 1995 (Gong1995, 1817), Supreme Court Decision 96Da21058 delivered on July 12, 196 (Gong196Ha, 2491) / [2] Supreme Court en banc Decision 96Nu196395 delivered on July 16, 194 (Gong1969, 1945, No. 196945 delivered on July 1965)

Han Bank Co., Ltd. (Attorney Cho Jong-soo, Counsel for defendant-appellant)

Korea

Busan High Court Decision 96Na7663 delivered on November 14, 1996

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

We examine the grounds of appeal.

1. On the first ground for appeal

According to Article 35(1)3(b) of the Framework Act on National Taxes, national taxes, surcharges, or expenses for disposition on default shall be collected in preference to other public imposts and other claims in principle. However, in the case of taxes to be determined by the Government, if national taxes or additional dues are collected from the proceeds of the sale of property for which the establishment of a mortgage is proved before the date of the delivery of the notice of tax payment, the claims secured by the mortgage shall not be given priority to the claims secured by the mortgage: Provided, That the so-called "national taxes and additional dues imposed on the property concerned" shall be collected in preference

In this context, it is interpreted that a claim secured by a mortgage is based on the duty to pay taxes to the mortgagee on the basis of the relationship between the mortgagee and the mortgagee at the time of the original establishment of the mortgage. Thus, in the event that the mortgagee died while there is no tax in arrears to be collected prior to the secured claim, the inheritance tax, which is a national tax, shall not be collected prior to the said tax (see Supreme Court Decisions 8Da8385 delivered on September 24, 1991; 8Da105 delivered on October 8, 1991; 93Da49581 delivered on March 22, 1994; 94Da11835 delivered on April 7, 1995; 196Da16219 delivered on July 12, 196, 206). The purport of this decision is that a claim established prior to the statutory due date of the mortgage is established by the Supreme Court, regardless of the statutory provision of this case.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the priority of claims secured by the right to collateral security and national taxes, as otherwise alleged in the grounds of appeal. There is no ground for appeal.

2. On the second ground for appeal

In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect is in violation of the important part of the law and is objectively obvious. In order to determine whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective and reasonable consideration of the specificity of the specific case itself (see Supreme Court en banc Decision 94Nu4615 delivered on July 11, 1995).

However, according to the above legal principles as to the priority order with claims secured by the right to collateral security and national taxes, as seen earlier, it has been apparent due to the repeated precedents of this court. Furthermore, according to the records, although the plaintiff filed an application with the director of the Namsan Tax Office to exclude the distribution of inheritance tax, etc. by citing the above legal principles prior to the disposition of allocation of the public auction price of this case, it is recognized that the director of the Namsan Tax Office neglected this application and preferentially distributed the inheritance tax (including additional dues) and disposition fee for arrears with respect to the non-party rights, which are national taxes, rather than the plaintiff's loan claims. Thus, if the above circumstances are the same, the disposition of allocation of the public auction price of this case by the director of the Namsan Tax Office shall be deemed null and void per annum because

Therefore, the judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the invalidation of administrative disposition.

3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Chang-hun (Presiding Justice)