2018Guhap60718 Revocation of the disposition of rejecting the cancellation of attachment

A

The Ansan Market

July 3, 2018

July 17, 2018

1. The plaintiff's claim is dismissed.

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

The defendant's refusal to cancel the attachment of real estate stated in attached Form 1 (hereinafter referred to as "real estate of this case") against the plaintiff on May 9, 2018 shall be revoked.

1. Details of the disposition;

A. On June 15, 1995, 1/2 of the instant real estate, the public land construction corporation (hereinafter “public land construction”) and ZS Construction Co., Ltd. (hereinafter “JS Construction”) completed the registration of initial ownership.

B. On January 10, 2014, the registration of attachment was completed in the name of Ansan-si on the ground of the attachment due to the delinquency in payment of local taxes (hereinafter “instant attachment”). B filed a lawsuit for the registration of ownership transfer on the instant real estate as of May 22, 1993 or as of April 23, 2015, with respect to the sale of the instant real estate as of May 22, 1993 or as of April 23, 2015, with respect to the instant real estate, as to the instant public land and the instant real estate, as to the ownership transfer registration on April 23, 2015. The above court rendered to B a settlement recommendation (hereinafter “reconciliation recommendation”) that “The execution of each procedure for ownership transfer registration on the grounds of prescriptive acquisition on April 23, 2015” was final and conclusive at the time of the settlement recommendation.

D. B completed the registration of ownership transfer on December 13, 2016, based on the prescriptive acquisition dated April 23, 2015, with respect to the instant real estate.

E. The Plaintiff purchased the instant real estate from B on December 5, 2016, and completed the registration of ownership transfer based on the said sale on December 13, 2016.

F. On January 8, 2018, the Plaintiff requested the Defendant to release the instant seizure under Article 63(1)3 of the Local Tax Collection Act, on the grounds that the grounds for the release of attachment occurred by the decision of recommending the settlement of this case. However, the Defendant rejected the release of attachment on January 15, 2018.

G. On May 8, 2018, when the lawsuit of this case was pending, the Plaintiff filed an application with the Defendant for the cancellation of the seizure of this case to the same purport in addition to the grounds under Article 63(1)2 of the Local Tax Collection Act, but the Defendant rejected the cancellation of attachment on May 9, 2018 (hereinafter “instant disposition”). The Plaintiff’s assertion 2. The Plaintiff’s assertion on May 9, 2018, as a whole, was without dispute.

A. B completed the registration of ownership transfer of the instant real estate in accordance with the decision on the recommendation for reconciliation of this case, which constitutes “when a third party, who is the grounds for cancellation of seizure under Article 63(1)3 of the Local Tax Collection Act, files a lawsuit on ownership against a delinquent taxpayer and obtains a favorable judgment, and proves such fact.”

C. Even if the decision to recommend reconciliation does not constitute a judgment of winning a lawsuit under Article 63(1)3 of the Local Tax Collection Act, B acquired the instant real estate by prescription on April 23, 2015, such decision constitutes “when it is deemed that the third party’s assertion of ownership, which is the grounds for revoking seizure under Article 63(1)2 of the Local Tax Collection Act, has a substantial reason.”

C. Therefore, the seizure of this case should be cancelled, and the defendant's disposition rejecting the plaintiff's request to release the attachment is unlawful.

3. Relevant statutes;

[Attachment 2] The entry is as follows.

4. Determination

A. Article 63(1) of the Local Tax Collection Act provides that "the head of a local government shall immediately release a property from attachment in any of the following cases." Article 63(1) of the Local Tax Collection Act provides that "if a third party's claim on ownership of the attached property is deemed to have considerable grounds," subparagraph 2 provides that "if a third party files a lawsuit on ownership against a delinquent taxpayer and proves the fact, he/she has won a favorable judgment." However, all of the above provisions refer to cases where the assertion that the attached property is owned by a third party at the time of seizure, or where the fact that the property is owned by a third party becomes final and conclusive in civil procedure, if the property at the time of seizure by the head of a local government is owned by a third party, and the property is not thereafter owned by a third party, it shall not be deemed as the requirement for cancellation of attachment as provided in the above Act and subordinate statutes (see, e.g., Supreme Court Decisions 95Nu15193, Dec. 20, 1996; 239.

B. At the time of the instant attachment disposition, the registration of initial ownership in the name of public land was completed with respect to 1/2 shares of the instant real estate at the time of the instant attachment disposition. As such, the said shares were owned by a public land owner, who was a delinquent taxpayer at the time of the instant attachment disposition, and did not belong to a third party’s ownership. Therefore, even if B acquired the instant real estate after the instant attachment disposition, and completed the registration of ownership transfer, it is difficult to deem that such ownership constitutes the cause of cancellation of attachment under Article 63(1)2 and 3

C. Meanwhile, the Plaintiff asserts to the effect that the ownership of the instant real estate B was acquired retroactively from the time of the commencement of possession of the instant real estate by prescriptive acquisition after the instant attachment disposition, and thus, constitutes grounds for cancellation of attachment under Article 63(1)2 of the Local Tax Collection Act. However, as alleged by the Plaintiff, even if B acquired the instant real estate by prescription and the effect of the acquisition by prescriptive acquisition was retroactive to the time of commencement of possession of the instant real estate, as long as the instant attachment disposition and the subsequent attachment registration were made prior to the transfer of ownership registration, it is not acknowledged that the relevant retroactive effect is not recognized in relation to the tax authority that was the third party (see, e.g., Supreme Court Decision 905375, supra). The Plaintiff’s assertion is not accepted ( insofar as 1/2 shares of the instant real estate were owned by public soil as at the time of the instant attachment disposition, it is difficult to interpret that the said shares were owned by a third party as at the time of the instant attachment disposition, based on the retroactive effect of prescriptive acquisition.

D. Therefore, we cannot accept all the Plaintiff’s assertion.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

The presiding judge and the judge certificate;

Judges fixed-type case

Judge Choi Jong-hoon

A person shall be appointed.

A person shall be appointed.