Supreme Court-2012-C-45207 ( October 13, 2014)

Return of Unjust Enrichment

Whether there is a cause attributable to the State where the second auction is conducted without transfer of ownership for the first public auction property by the purchaser.

Article 35 of the National Tax Collection Act

2014Na2816 Return of Fraudulent Gains

Park AA

Republic of Korea and one other

November 27, 2014

January 8, 2015

1. The part of the judgment of the first instance against the Defendants shall be revoked.

2. The plaintiff's claims against the defendants falling under the above cancellation part are all dismissed.

3. The plaintiff shall bear the total costs of litigation between the plaintiff and the defendants.

the Gu Office's place and place of action

Defendant Republic of Korea shall pay to the Plaintiff OOO directors and their members from August 10, 2010; Defendant OOO directors and their members from October 7, 2010 to February 15, 201, respectively; and 20% interest per annum from the next day to the date of full payment (the part dismissed in the first instance trial among the Plaintiff’s claims against the Plaintiff’s height became final and conclusive as at the same time as the judgment was rendered before remand); and Defendant OO directors and their members from October 7, 201 to February 15, 201.)

Purport of appeal

The same shall apply to paragraphs 1 and 2.

1.Basics

A. The registration of provisional attachment was completed on January 14, 1999 on the DaB-dong DD 225-4, 136m2 (hereinafter “the instant real estate”), which is the owner of SongB, on the ground that the provisional attachment registration was completed on October 22, 2001, for the reason of delinquency in the local taxes by SongB-B-owned on October 27, 2001, GG Tax Office completed the registration of attachment on each of the instant real estate on the ground of delinquency in the national taxes by SongB-B-owned on October 27, 2001. GG Tax Office requested the HG Corporation to sell the instant real estate by proxy (hereinafter “the instant public auction”) on June 27, 2005. The Plaintiff bid for the public sale procedure of this case and failed to complete the registration of ownership transfer on September 21, 2005 after receiving a decision to sell the instant real estate to the OOB-owned on September 21, 2005.

D. HH on December 13, 2005, after deducting OOO members of the public auction administration cost from the above sale price, HH distributed OO members to Defendant Republic of Korea and OOO members to Defendant Seoul Special Metropolitan City.

E. HH had acquired the above provisional seizure claim from EE bank, a creditor of provisional seizure, and applied for a compulsory auction for the instant real estate under the title of execution on May 23, 2008, 2008, by acquiring title, and then having received a compulsory auction order on May 23, 2008. Land II purchased the instant real estate at the above auction procedure, and completed the registration of ownership transfer by full payment of the sale price on March 2, 2009.

In the absence of dispute (in the absence of dispute under grounds for recognition), Gap evidence 1, Gap evidence 2-1 through 3, Gap evidence 3, Gap evidence 4-1 through 4, Gap evidence 5-1 through 8, Eul evidence 1, Eul evidence 1, Eul evidence 1 through 3, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Determination on the Grounds for Claim

A. The plaintiff's assertion

Since the compulsory execution procedure based on the claim for provisional attachment against the original owner was initiated after the public auction of this case, the land II acquired ownership and the Plaintiff cannot acquire ownership, the public auction of this case is null and void. Therefore, the Defendants shall return the amount equivalent to the amount distributed to the Plaintiff as unjust enrichment.

However, even if not, the plaintiff cancelled the public auction of this case with the seller's warranty liability under Articles 578 and 576 of the Civil Code, and the debtor BB is insolvent, the defendant, who is the distributing creditor, is obligated to return the amount distributed to the plaintiff as unjust enrichment pursuant to Article 578 (2) of the Civil Code.

B. Determination

1) Determination on the assertion that the instant public auction is null and void

As examined below, even if the sale decision and payment were to be made in the public sale procedure for farmland under the Farmland Act, the purchaser cannot acquire the ownership unless the purchaser obtains the qualification certificate for acquisition of farmland under the Farmland Act. Since the national tax default procedure and the civil execution procedure are different from the acquisition certificate for acquisition of farmland under the Farmland Act, the sale of this case cannot be deemed null and void on the ground that the land II purchased the real estate in the compulsory execution procedure based on the claim for provisional attachment against the original owner, while the Plaintiff did not acquire the ownership because it did not obtain the qualification certificate for acquisition of farmland under the Farmland Act, and that the public sale of this case is not invalid.

2) Determination as to the seller's claim of warranty liability (Article 576 and Article 578 of the Civil Act)

Article 576(1) of the Civil Act provides, “If a purchaser of a real estate, who was the object of a sale, is unable to acquire the ownership or loses the ownership of the real estate due to the exercise of a mortgage or chonsegwon established on the real estate which was the object of the sale, the purchaser may rescind the contract.” If a purchaser of a real estate, who was the object of a provisional attachment, loses the ownership of the real estate due to a compulsory execution based on a claim based on the provisional attachment, this is similar to the case where the purchaser loses the ownership of the real estate due to the exercise of a mortgage or chonsegwon established on the object of the sale. In such a case, Article 576 of the Civil Act regarding the seller’s liability for warranty applies mutatis mutandis (see Supreme Court Decision 2011Da1941, May 13, 201). In other words, a person who purchased a real estate which was the object of a provisional attachment by entering into a sales contract after the entry of the provisional attachment registration, cannot oppose the purchaser who acquired the ownership of the real estate in a compulsory execution procedure based on the provisional attachment.

Meanwhile, Article 578(1) of the Civil Act provides that a successful bidder may demand cancellation of a contract or reduction of price to an obligor under the preceding eight Articles. In the case of an auction, Article 578(2) provides that, in the case of the preceding paragraph, a successful bidder may demand a creditor who has received distributions of the price to return all or part of the price. The "auction" referred to in the preceding provision includes a public auction by HH Corporation pursuant to Article 61(9) of the National Tax Collection Act. However, inasmuch as national tax delinquency procedure and civil execution procedure are separate procedures, and there is no provision regulating mutual relations between those procedures, each creditor in both procedures is bound to participate in different procedures, and thus, even if a provisional attachment is executed on real estate, if a disposition of disposal of farmland by a disposition of national tax in arrears is completed, it becomes invalid if the purchaser of farmland fails to acquire ownership of farmland in full due to the reason that the sale of farmland was conducted by the public auction procedure, and thus, it cannot be deemed that the purchaser of farmland is still entitled to acquire ownership in the auction procedure (see Supreme Court Decision 2060.

In light of the above legal principles, the plaintiff cannot exercise the right of rescission under Articles 578 and 576 of the Civil Act to recover the amount distributed to the defendants.

3. Conclusion

Therefore, the plaintiff's claim against the defendants shall be dismissed for all reasons, and since the part against the defendants in the judgment of the court of first instance against the defendants in its conclusion is unfair, the part against the defendants in the judgment of the court of first instance shall be revoked and the plaintiff's claim against the defendants in its revocation part