In the distribution of the proceeds of public sale under the National Tax Collection Act, whether the prior provisional attachment claim is subject to distribution than the right to collateral security (affirmative)

Article 81 (1) 3 of the National Tax Collection Act imposes an obligation under the public law to distribute the proceeds from the sale of the attached property to the secured party under the above law regardless of whether before or after the seizure, to protect the preferential right to payment of the attached property related to the attached property in the procedure for disposition on default, and it is merely an example of the claims that can be distributed from the proceeds from the sale of the attached property, and it is not a limited list. Thus, it is reasonable to view that the proceeds from the sale of the attached property under the disposition on default of national taxes include not only the secured right under Article 81 (1) 3 of the same Act, but also the claims that are in the same order or priority than the secured party under the provisions of the law or the interpretation of the law, and if such claims are not yet determined due to the relation of the attached property, the amount to be distributed to the security party under Article 84 (1) of the same Act may be

Article 80(1)3, Article 81(1)3, and Article 84(1) of the National Tax Collection Act, Article 79 of the Enforcement Decree of the National Tax Collection Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Lee Jong-soo and 1 other, Counsel for plaintiff-appellant)

National Federation of Fisheries Cooperatives (Attorney Han Han-dae et al., Counsel for the defendant-appellant)

Head of Sungbuk Tax Office

Seoul High Court Decision 99Nu16728 delivered on August 25, 2000

The judgment below is reversed and the case is remanded to Seoul High Court.

According to the reasoning of the judgment below, the court below, based on its adopted evidence, acknowledged that on March 10, 1995, the provisional seizure period registration with the plaintiff as the right holder was completed on March 10, 1995 on each of the real estate listed in the separate list of the judgment below (hereinafter referred to as "real estate in this case"). The defendant attached the real estate in this case on June 22, 1995 to collect the delinquent tax against the non-party 1 and sold the real estate in this case at KRW 53,060,00 on August 5, 1996. The plaintiff applied for the distribution of the proceeds of the public sale on September 23, 1996 to the defendant on September 1, 196, but the defendant was not the right holder of the provisional seizure, the right holder of the provisional seizure, and the non-party 2, the right holder of the provisional seizure, and the right holder of the provisional seizure after the registration of the plaintiff's provisional seizure period, and determined that the remaining proceeds were not distributed to the creditor.

However, Article 81 (1) 3 of the National Tax Collection Act imposes an obligation under public law to allocate the proceeds from the sale of attached property to the secured party under the above Act in order to protect the right to preferential payment related to the attached property in the disposition procedure for arrears (see Supreme Court Decision 92Nu7580 delivered on December 22, 1992), regardless of whether it was before or after the seizure (see Supreme Court Decision 2000Da15869 delivered on June 9, 200). Since it is merely an example of the claims that can be distributed with the proceeds from the sale of attached property, it is not a limited list (see Supreme Court Decision 200Da15869 delivered on June 9, 200). It is reasonable to view that the proceeds from the sale of delinquent tax in accordance with the disposition for arrears include not only the secured party under Article 81 (1) 3 of the National Tax Collection Act, but also those claims in preference to or superior to the secured party under the law interpretation.

Nevertheless, the court below erred in the misapprehension of legal principles as to claims subject to distribution of the proceeds of public auction on the premise that the claims subject to provisional seizure registered prior to the mortgagee are not claims subject to distribution of the proceeds of sale on the premise that the proceeds of sale are not distributed.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)