Order of distribution of successful bid price

The priority of seizure may be applied to the determination of the priority among the taxation claims, but it shall not be applicable to the determination of the priority between the taxation claims and the security rights accompanying the public notice.

Article 36 of the Framework Act on National Taxes priority by seizure

Article 37 of the Framework Act on National Taxes priority to the national tax with security

1. Of the dividend table prepared by the above court on January 20, 2006 with respect to the distribution of the real estate auction case of ○○○○○○○○○○○○○, the amount of dividends of KRW 144,474,050, and the amount of dividends of KRW 92,438,00 to the plaintiff shall be corrected to KRW 145,466,48, respectively.

2. The plaintiff's claim against the defendant Republic of Korea is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and Defendant ○○○○ City is assessed against the Plaintiff, and the part arising between the Plaintiff and the Defendant Republic of Korea, respectively.

The primary purport of claims is as stated in paragraph (1) of this Article.

Defendant Republic of Korea shall pay to the Plaintiff 144,474,050 won with 20% interest per annum from the day following the delivery date of a copy of the instant complaint to the day of complete payment.

1. Facts of recognition;

A. On September 16, 2002, the Plaintiff entered into a mortgage-backed contract with Park ○, Park △, and Park △△△ on the same day with respect to ○○○○○○○-dong 2276-1, 943, 803, 813 (hereinafter referred to as “○○○○○○○○○-dong 2276-5, 803, 803, hereinafter referred to as “803, 813”) and completed the registration of establishment of a mortgage as follows.

Real estate

803

804 HS Heading

805

806

807

808

809

810 HS Heading

811

812 HS Heading

813

Bonds

Maximum amount

2,500

00 Won

2,400

00 Won

3,900

00 Won

2,500

00 Won

2,300

00 Won

2,300

00 Won

3,400

00 Won

10 million won

1,700

00 Won

1,000

00 Won

2,100

00 Won

2,000

00 Won

Park ○

Park ○

Park ○

Park ○

Park ○

Park ○

Park ○

Park △△△

Park △△△

Park △△△

Park △△△

Beneficiary of the Collateral Security

B. The plaintiff filed an application for voluntary auction at around 2003 *3, 2003 **03 *0, 2003 *03 **7, 2003 ***7 *****4 'previous auction procedure' (hereinafter referred to as "previous auction procedure"), which had been first sold at the 812 auction procedure (**** 7) which was first sold at the 812 '○○○○○, and '○○○○○○○' under the defendant's Republic of Korea (hereinafter referred to as "○○○○○') filed a claim for delivery as follows with the tax claim against ○○, who is its owner. Meanwhile, the defendant ○○○○○ was seized on January 23, 2003 and December 18, 2003, respectively.

(1) Defendant ○○○○○○

(A) Acquisition tax (the above site portion) 33,000,000 won, statutory due date: June 28, 2002

(B) Acquisition tax (building portion) 89,973,510 won, statutory due date: August 19, 2002

(C) Additional dues for acquisition tax (the above portion of land): 14,867,400 won, statutory due date: August 10, 2002

(D) Additional dues of acquisition tax (building portion) 39,249,530 won, statutory due date: September 10, 2002

(At least 177,090,440 177,000 177,000 1,000 1,000

(e) disposition fee for arrears 15,000

(2) ○○ Tax Office

(A) Wage and salary income tax of 123,840 won, statutory due date of August 10, 2002

(B) Legal date prior to the date of creation of the right to collateral security of the plaintiff

(B) Wage and salary income tax of 109,970 won, statutory due date October 10, 2002

(C) Value-added tax of 156,795,220 won, statutory date October 25, 2002

(D) Wage and salary income tax of 80,350 won, statutory due date of November 10, 2002

(E) Value-added tax of 5,901,310 won, statutory due date of April 10, 2003

(c) In the previous auction procedure successively sold KRW 170,787,901 (****77, 2003 on November 26, 2003, KRW 39,256,034 on March 16, 2004, KRW **5,209,142 on March 35, 2004, KRW ****33 on April 1, 2004, KRW 80,846,526 on April 1, 2004, KRW ***00 on May 15, 2004, KRW 476,199 on May 28, 2004).

D. The Defendant ○○○○○○○○○ issued a public auction on November 18, 2002, following the attachment of 805 as a procedure for the disposition on default of local taxes, and then appropriated the proceeds from the sale to KRW 20,042,020 on March 24, 2004 as the additional charges for acquisition tax on the site calculated at the time and principal tax amounting to KRW 9,576,00,00 and KRW 10,46,020.

E. Meanwhile, on August 2004, the Plaintiff filed an application for voluntary auction on the basis of the registration of establishment of a neighboring establishment, and filed a request for the issuance of the tax claim against ○○○○○○○○○, and Defendant ○○○○○○○○○○○, upon which the Plaintiff completed the auction on the basis of the registration of establishment of a neighboring establishment, KRW 803, 804, and KRW 806 through 809, and this Court 2004 ***02 (hereinafter referred to as “instant auction procedure”).

F. On January 20, 2006, at the instant auction procedure, the distribution was made as follows.

(1) The actual dividend amount of 147,553,868 won after deducting the cost of execution from the proceeds of sale.

(2) ○○○○-si: 2,087,380 won (if applicable)

(3) Defendant ○○○○○: 144,474,050 won (acquisition tax)

Acquisition tax on a building site amounting to 28,83,980 won and its additional dues amounting to 8,489,800 won, acquisition tax on a building site amounting to 89,973,510 won and additional dues amounting to 17,176,760 won

(4) Plaintiff: 92,438 won (the date of September 16, 2002)

Demand for distribution of 217,615,458 won, aggregate of the maximum debt amount of the right to collateral security, 154,00,000 won

[Grounds for Recognition: Evidence A(including each number), Evidence A(including each number), Evidence B(including each number), Evidence B(1) through 5(including each number), Evidence B(1) through 10, the whole purport of the pleadings.

2. The assertion and judgment

A. The plaintiff's assertion

The attachment priority principle can only be applied to determining the priority among the tax claims, but it cannot be applied to determining the priority between the tax claims and the secured rights accompanying the public notice. As such, the portion of the dividend paid by ○○ Tax Office in the previous auction procedure exceeds KRW 123,840 prior to the date of the Plaintiff’s establishment of the right to collateral security should have been distributed to Defendant ○○○○○○○○○○○. Therefore, Defendant ○○○○○○○ in the instant auction procedure did not have to have to have to receive dividends or did not have to have to do so. Thus, Defendant ○○○○○○○○○○○○ was seeking correction of the distribution schedule of the instant auction procedure as stated in the primary purport of the claim, and Defendant ○○○○○○○○○○○○○ in the instant auction procedure, and Defendant 1 did not have any error in the instant auction procedure with regard to Defendant 123,840 won, Defendant Republic of Korea was obligated to return the dividend amount to Defendant 14,005.

B. Determination on the claim against the primary defendant ○○○○○○○

The legislative purport of Article 35(1)3 of the Framework Act on National Taxes and Article 31(2)3 of the Local Tax Act is to harmonize the judicial request to guarantee the safety of transaction and the public interest request to realize tax claims with respect to the secured real rights accompanying public disclosure. As such, the taxation claims shall not be infringed on the essential contents of the secured rights, and the taxation claims may be collected in preference to the secured rights of the secured rights that are adopted under Article 36(1) of the Framework Act on National Taxes and Article 34(1) of the Local Tax Act. The purport of the so-called seizure priority principle adopted under Article 36(1) of the Framework Act on National Taxes and Article 34(1) of the Local Tax Act is to give priority to the collection right holder, who has the right of priority listed in tax collection, to determine the priority between the secured rights accompanying public disclosure and the secured rights (see, e.g., Supreme Court Decision 2005Du9888, Nov. 24, 2005).

Therefore, the order of priority between the taxation claims and the security rights except for the corresponding tax shall be determined by the statutory due date and the prior date of the establishment of the security rights, and after the distribution of the proceeds in such order, the priority order between each taxation claim shall be determined by the prior date of the security rights and the security rights.

In this case, the sum of KRW 170,787,90,00,00 (legal due date: June 28, 2002) acquisition tax of Defendant ○○○○○○○○○○○○○ prior to the statutory due date than the Plaintiff’s establishment date of a right to collateral security, additional acquisition tax of KRW 14,867,40 (legal due date: August 10, 2002), earned income tax of KRW 123,840 (legal due date: August 10, 2002); acquisition tax of KRW 89,973,510 (legal due date: August 10, 200); additional tax of acquisition tax of KRW 39,249,530 (legal due date; August 19, 200); acquisition tax of ○○○○○○○○○○○○’s prior to the statutory due date of collateral security; seizure of KRW 39,249,530 (legal due date: September 319, 2001).

However, in the auction procedure of this case, when the auction court pays dividends of KRW 145,46,48,00, excluding the corresponding KRW 2,087,380, the amount to be actually distributed at KRW 147,553,868, the dividends of KRW 146,488, the amount to be paid at KRW 145,46,480, which is the remainder of KRW 2,087,380, which is the amount to be paid by the auction court, are distributed in preference to the plaintiff on the ground that the statutory due date is prior to the date of the establishment of the plaintiff's right to collateral, the fact that the statutory due date is prior to the date of the establishment of the plaintiff's right to collateral security has been prior to the date of the right to collateral security has been prior to the date of seizure adopted to set the priority among the tax claims has resulted in a change in the existence and scope of the right to collateral security, and as a result, the tax authority may not be granted any disadvantage to the secured party in the auction procedure.

Therefore, among the above distribution schedule, the amount of 144,474,050 won for Defendant ○○○○○○○○○, and the amount of 92,438 won for the Plaintiff should be corrected to 145,46,488 won (=92,438 won + 144,474,050 won).

The plaintiff's right to collateral security against the plaintiff's 803 through 810 is different from the debtor's and the maximum debt amount. Thus, the plaintiff's right to collateral security against the plaintiff's 803 through 810 cannot dispute the order of priority with the plaintiff's right to collateral security. Thus, the plaintiff's right to collateral security against the plaintiff's 803 through 813 is an individual right to collateral security, not a joint collateral security, but a joint collateral security against the plaintiff's right to collateral security against the plaintiff's 803 through 813. However, the plaintiff's right to collateral security against the plaintiff's 803 and 804,806 through the previous auction procedure and the public auction procedure of this case's 803 through 813, the remaining object of collateral security excluding the real estate whose collateral is extinguished, and there is no reason to assert the right to collateral security within the scope of 154,000,000 won.

C. Determination on the claim against the conjunctive defendant Republic of Korea

Since the claim against the primary defendant ○○○○○○○○, this part of the claim is not judged.

3. Conclusion

Therefore, the plaintiff's claim against the main defendant ○○○○○○○○○ is justified, and the conjunctive defendant's claim against the Republic of Korea is dismissed as it is without merit. It is so decided as per Disposition.