When the amount of tax received in the auction procedure is determined or revoked, the method of disposition;

In the auction procedure, the amount equivalent to the national tax received when the chief of the tax office determines and revokes the amount of the tax received through the request for delivery shall be returned to the creditor in preference if he did not request the delivery, and the creditor shall be specified and deposited in the deposit.

The contents of the decision shall be the same as attached.

1. The defendant shall pay to the plaintiff 200 million won with 5% interest per annum from November 4, 2003 to May 18, 2007 and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 200,000,000 won with 5% per annum from March 21, 2002 to the sentencing day of this judgment, and with 5% interest per annum from the next day to the day of full payment.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the whole purport of the pleadings in each entry of Gap evidence 1 through 3, Gap evidence 6, Gap evidence 7-1 through 4, Gap evidence 8, Eul evidence 2 and 3:

A. On March 11, 1999, the Plaintiff set up a collateral security on the part of the obligor with respect to the share of the door-to-door’s ○○○○-dong, Seoul, ○○○-dong, 448-○-dong, and third-party plot of land (hereinafter “instant building”) owned by Nonparty 1/2 and the door-to-door, with respect to the share of the Defendant’s ○○, the maximum debt amount of KRW 200

B. As to the instant building and its site, 448-○○-dong 442.8 square meters (hereinafter “○○-dong 448-○”), 447-○ 59.5 square meters, 447-○ 447-○ 7 square meters, 447-○ 70.7 square meters, and 447-○ 41 square meters (hereinafter “instant auction procedure”) with respect to the instant building and its site, a number of compulsory auction and discretionary auction procedures were initiated and conducted (hereinafter “instant auction procedure”).

C. On March 21, 2002, 202, 2,528,872,668 won to be actually distributed after deducting 26,778,05 won to be distributed, among the distribution dates of the auction procedure of this case, 2,55,650,738 won to be distributed, and 701,777,353 won to ○○○○ New Co., Ltd. which is a creditor, and 21,236,730 won to ○○○ Head of the tax office, who is a delivery right holder, in the second order, 104,312,180 won to ○○○○ Office, which is a person holding a branch, and 104,312,180 won to ○○○ Management Corporation, which is a creditor, and 650,000,000 won to ○○○ New Co., Ltd., which is a distribution right holder.

D. On the other hand, the execution claim of ○○ Tax Office, which was distributed to the 7th order in the auction procedure of this case, was based on the title trust of ○○○○-dong 448-○-dong 448 for the purpose of tax avoidance. The title trust of ○○-dong 4410 won was imposed on the ○○-dong 450,629,610 won of gift tax on the ○○-dong 10, and the head of ○○○ Tax Office, who was decided by the Board of Audit and Inspection, revoked the disposition imposing the gift tax on November 4, 2003, after the above auction procedure was completed.

E. Accordingly, on September 3, 2004, the defendant (○○○○ Tax Office) deposited the amount received as dividends from the Seoul Central District Court 2004No. 9695 to 794,50,841 as Seoul Central District Court 2004Da9695, Article 487 of the Civil Code, and Article 487 of the Civil Code, and the facts of the cause of the deposit to the subordinate creditors of the auction procedure of this case, whichever is difficult to be known. The defendant corrected the money received as dividends to the subordinate creditors of the auction procedure of this case or to the extent that the person who received the provisional seizure, seizure and collection order, etc. should pay the money to the above gift tax refund claim received from the ○○ District Court 2004Da9695.

2. The assertion and judgment

A. Determination on the cause of the claim

(1) According to the above facts, as the disposition imposing gift tax was revoked as the cause for a dividend to the ○○○ Head of the tax office, Defendant (○○○○ Head of the tax office) received dividends of KRW 744,589,376, which is a dividend in the auction procedure of this case, without any legal cause, and thereby acquired it without any legal cause. Accordingly, the creditors who would have been entitled to receive a dividend in the above auction procedure would have suffered damages equivalent to the amount that ○○ Head of the tax office could have received. Therefore, in the absence of a dividend to the ○○○ Head of the tax office, we examine whether the Plaintiff could have received a dividend in the auction procedure and the amount thereof.

(2) Criteria for determination

Article 368 of the Civil Act on Joint Mortgages should be applied by analogy in cases where a person liable for tax payment exercises the preferential right to payment of taxes on various real estate owned by the person liable for tax payment, on the grounds that a person liable for tax payment has a preferential right to payment on the whole property within a certain scope. Therefore, in cases where a number of real estate owned by a tax obligor is held in a position similar to a joint mortgagee on the whole real estate, Article 368 of the Civil Act on Joint Mortgages should be applied by analogy (see Supreme Court Decision 2003Da18401

In the event that several sites and buildings are sold at the same time and the proceeds of the auction are distributed at the same time, the allotment of claims shall be determined by applying Article 368(1) of the Civil Act to the proceeds of the auction of each real estate, and "the proceeds of the auction of each real estate" refers to the balance obtained by deducting the costs to be borne by the relevant real estate from the proceeds of the auction and senior claims (see Supreme Court Decision 2001Da66291, Sept. 5,

수개의 대지와 건물이 일괄경매되는 경우 개별경매하는 경우와 마찬가지로 대지에 대한 권리자는 내지매각대금에서, 건물에 대한 권리자는 건물매각대금에서 각 배당을 받아야 하고, 따라서 대지와 건물을 일괄매각하는 경우 각 재산의 ㅏ매각 대금에서 배당받을 채권자 및 채권이 다른 때에는 각 부동산의 매각대금마다 구분하여 이른바 개별배당재단을 형성한 후 각 대금마다 따로 배당표를 작성하여야 하며, 설령 대지와 건물에 대한 배당표가 하나로 작성되었다고 하더라도 이는 대지매각대금에 대한 배당표와 건물매각대금에 대한 배당표의 각 채권자의 배당액이 합산되어 하나로 작성된 것에 불과하다.

(3) The sum of the Defendant’s dividends on the instant subject matter (the share in ○○)

(A) In full view of the reasoning of the argument as to Gap's evidence Nos. 3 and 9, and the fact finding to the director of the tax office of this court, ○○○○○ New Company received dividends of KRW 701,777,353 (100%) in the position of a mortgagee on the land 448- dong-dong 448-○, and received dividends of KRW 125,548,910 (100%) in the position of the creditor of Jongno-gu tax office, and the defendant received dividends of KRW 125,548,910 (10%) in the position of the creditor of Jongno-gu tax office. The Korea ○○○○○ Corporation received dividends of KRW 447-O2 and the building of this case from the position of a mortgagee on the ○○○○○○○○○○○, and the defendant received dividends of KRW 650,00,000 among the land and the building of this case.

2. The assertion and judgment

A. Determination on the cause of the claim

(1) According to the above facts, as the disposition imposing gift tax, which caused a dividend to the head of ○○○ Tax Office, was revoked, Defendant (○○○○○ Tax Office) received dividends of KRW 744,589,376, which is a dividend in the auction procedure of this case, without any legal ground. Accordingly, the creditors who could have received a dividend in the auction procedure would have suffered damages equivalent to the amount that ○○○ Tax Office could have received if the dividends were not made against the head of ○○ Tax Office. Therefore, if the dividends were not made against the head of ○○○ Tax Office, the creditors who could have received a dividend in the auction procedure would have suffered damages equivalent to the amount that ○○○ Tax Office could have received. Accordingly, it is examined whether the Plaintiff could have received a dividend in the auction procedure and whether the amount could have been received if the Plaintiff had not received a dividend in the auction procedure.

(2) Criteria for determination

Article 368 of the Civil Act on Joint Mortgages should be applied by analogy in cases where a person liable for tax payment exercises a preferential right to payment of taxes on various real estate owned by the person liable for tax payment, in that a person liable for tax payment has a preferential right to payment on the whole property within a certain scope. Therefore, in cases where a person liable for tax payment exercises a preferential right to payment on several real estate owned by the person liable for tax payment, Article 368 of the Civil Act on Joint Mortgages should be applied by analogy (see Supreme Court Decision 2003Da18401

When several sites and buildings are sold at the same time, and the proceeds of the auction are distributed at the same time, Article 368(1) of the Civil Act shall apply mutatis mutandis to the apportionment of claims in proportion to the proceeds of the auction of each real estate, and the proceeds of the auction of each real estate here refers to the balance obtained by deducting the expenses to be borne by the real estate in question from the proceeds of the auction and the preferential claim (see Supreme Court Decision 2001Da66291, Sep.

In the case of an individual auction where several sites and buildings are put into a blanket auction, a right holder for a site shall receive a distribution from the proceeds from the sale of a site, and a right holder for a building shall receive a distribution from the proceeds from the sale of a building. Therefore, in the case of a blanket auction of a site and a building, if creditors and claims entitled to a distribution from the proceeds from the sale of each real estate are different, each of the proceeds from the sale of each real estate shall form the so-called individual distribution foundation and prepare a distribution schedule separately for each of the proceeds from the sale of each real estate. Even if a distribution schedule for a site and a building was made out as

(3) The sum of the Defendant’s dividends on the instant building (the share in the door, ○○)

(A) In full view of Gap evidence Nos. 3 and 9, and the fact finding to the director of the tax office of this court, ○○○○ New Company received dividends of KRW 701,777,353 (100%) from the position of the mortgagee of the right to collateral security over the land 448- dong 448- dong, and the Korea ○○○ Management Corporation received dividends of KRW 650,00,00 (100%) from the position of the mortgagee of the right to collateral security over the ○○○○'s portion among the buildings of this case. ○○○○ Company received dividends of KRW 100,00,000 (100%) from the position of the mortgagee of the right to collateral security over the ○○○'s portion among the buildings of this case, and the defendant did not receive dividends of KRW 657,00,00,000 (100), 4749,479,479,479, and 4797.64.7.7

(B) Meanwhile, according to the evidence evidence No. 8, the appraisal price of this case at the auction procedure of this case is 2,308,138,560 won for the building of this case and 448-0 won for the land of this case 1,096,960,960,000 won for the land of this case and 447-8,000 won for the land of this case 447,840,000 won for the land of this case 447-8,000 won for 2,528,872,68 won for actual dividends, the sale price of the building of this case calculated according to the appraisal price ratio of 1,476,620,108 won (=1,476,620,108 won x 1,000 won for the land of this case among the amount distributed to the defendant is 1,500,000 won for the sale price of the above sentence of this case (attached calculation).

(4) The amount of dividends to subordinate creditors

However, in full view of the purport of the pleadings in the written evidence Nos. 4 and 6, among the instant buildings, there are only the right holder entitled to receive dividends prior to the Plaintiff, who is a senior mortgagee, in the order of Kim○ (the maximum amount of claims KRW 45 million), senior mortgagee and senior mortgagee (the maximum amount of claims KRW 60 million, the security deposit amount of KRW 120 million), and ○○○○○○ Telecom Co., Ltd. (the lease deposit amount of KRW 20 million), which is the senior mortgagee, and the amount distributed to the said right holder is a maximum of KRW 245 million.5 million.

(5) Sub-decisions

Therefore, inasmuch as the Plaintiff could have received 200 million won from the maximum debt amount as a mortgagee with respect to the portion of the instant auction procedure without any dividends to the head of ○○○ Tax Office, the Plaintiff could have received 200 million won from the date when the Board of Audit and Inspection decided to revoke the disposition imposing gift tax on the Plaintiff with respect to the return of unjust enrichment, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at each rate of 5% per annum under the Civil Act from November 4, 2003 to May 18, 2007, which appears to have been aware of the fact of unjust enrichment, and from the next day to the date of full payment (the Plaintiff claimed for the payment of damages for delay from March 21, 2002, which is the date of the date of the instant auction procedure, but there is no evidence to acknowledge that the Defendant had received dividends from that time with knowledge that there was no legal cause).

B. Judgment on the defendant's defense of repayment

The defendant asserts that it is impossible to respond to the plaintiff's claim because he has deposited the money distributed in the auction procedure, and the plaintiff asserts that the payment deposit of the defendant is unlawful. Therefore, the defendant's payment deposit satisfies its requirements and satisfies its requirements to determine whether it is legitimate and effective.

According to the above, the defendant deposited 794,507,841 won in total of the amount distributed on September 3, 2004 and damages for delay under Article 487 of the Civil Code as to whether the person who received the payment is not the person who received the payment, and the underlying provision. This is an absolute deposit as to whether the person who received the payment is not specified at all.

The latter part of Article 48 of the Civil Act provides that a person performing obligation may make a deposit for repayment in cases where the obligee is unable to identify the obligee without any negligence. Thus, in order for such obligee to be duly deposited, the obligee or the person holding the right to receive reimbursement exists objectively, but the obligor cannot be identified even if he/she fulfills his/her due care as a good manager. In light of the following circumstances, the Defendant cannot be said to be a case where the obligee (the person receiving the deposit was unable to identify

In other words, the defendant first deposited the dividend amount to the subordinate creditors of the auction procedure of this case on the ground that no one can know how much it should be paid. The debtor under our deposit system is obligated to designate the creditor because, in principle, the deposit of the relative uncertainty specified by the creditor or at least the creditor is allowed, and the deposit of the absolute uncertainty, the creditor of which is not known at least, should be exceptionally allowed only under special circumstances. It is difficult to view that there are special circumstances where the defendant cannot at all specify the creditor and the deposit amount merely because a large number of real estate was sold at the auction procedure of this case in the auction procedure of this case. Thus, the above deposit cause alone cannot be said to be a case where the defendant took due care of a good manager.

Then, the defendant corrected that it should not be paid to the junior creditor of the auction procedure of this case or that it should not be paid to the person who received the provisional seizure, seizure, and collection order, etc. as to the gift tax refund credit which he received from the literature ○○'s subordinate creditor of the auction procedure of this case. In the auction procedure, when the chief of the tax office requested the delivery of the national tax and received it thereafter, if the disposition of national tax was revoked, the amount equivalent to the national tax received shall be returned to the junior creditor according to the priority order of the claim in the auction procedure without the request for delivery (see, e.g., Supreme Court Decisions 91Da9537, Jun. 28, 1991; 98Ma363, Jan. 8, 1999).

Therefore, the defendant's above repayment deposit is an illegal deposit which fails to meet the requirements under the latter part of Article 487 of the Civil Code, and the defendant's defense of repayment is without merit.

3. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Conclusion