Supreme Court-2014-Du-40029 (2017.09)

The fact-finding and judgment shall not conflict with the binding force of the ruling, unless the basic facts are identical.

In fact-finding and judgment, if the basic facts are not identical, it shall be able to re-disposition if it does not conflict with the binding force of the ruling, and the basic property for profit-making purposes shall be able to be seized.

2017Nu445 Nullification of a seizure disposition

○ School Foundation

○○ Head of tax office

The third instance decision

February 9, 2017

September 8, 2017

September 29, 2017

1. A seizure disposition taken by the Defendant on October 15, 2004 with respect to 00 ○○○○○○○-1295-1 , 1295-2 4,473 m2, 1295-7 m2, 1295-7 m2, and 1,782 m2 m2 of the same Ri (the receipt on October 18, 2004)

59808) The plaintiff's appeal as to the claim for nullification confirmation is dismissed.

2. The plaintiff shall bear the total costs of the lawsuit after the appeal.

The judgment of the court of first instance is revoked. The defendant's judgment of the court of first instance is revoked. It is clear that the defendant's seizure disposition of October 18, 2004 (No. 59808, Oct. 18, 2004, which was issued on October 15, 2004) is invalid in relation to ○○○○○○ ○○ ○○ ○○ ○○ ○○ ○ ○ ○○ 1295-1, 8,530 square meters, and 1295-2 ○ 4,473 square meters, and 1,782 square meters per annum, which was filed on October 15, 200 ○○ ○○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○ ○ ○ ○ 266,694 square meters, other than the above claims, the defendant filed an appeal seeking nullification of the seizure of the above part.

1. Objects to be adjudicated by this Court;

The plaintiff at the first instance court, on March 10, 1999, filed a request for the invalidation confirmation of 12,694 square meters of forest ○○○○○○○, 00,000 m26 m2,000 m2,000,000 m2,000 m2,000 m2,000 m2,0000 m2,000 m2,0000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,01.

2. Details of the disposition;

A. The Plaintiff is a school juristic person operating ○○ High School and ○ High School, which owns ○○○○○○-1295-1 Doz. 8,549 square meters and 1295-2 Doz. 6,255 square meters per annum.

B. The Defendant imposed corporate tax of KRW 1,361,188,670 on the Plaintiff (the due date of February 29, 1996), but did not pay the corporate tax. The Defendant seized each of the above 00 Ri land on October 15, 2004 (hereinafter the above attachment disposition of this case as of October 15, 2014).

C. On the other hand, on August 18, 2010, 1295-2 ○○○○○, ○○○○, 255-7, and 19 square meters among 1,782 square meters of the same Ri 1295-1 8,549 square meters of the same Ri 1295-6 square meters of the same Ri 1295-6, were divided into 1295-6, respectively (hereinafter referred to as “instant land”), and on March 29, 2012, each registration of ownership transfer was completed in the name of the Republic of Korea on the grounds of expropriation on the ground of the same month 7th day of the same month.

D. The Plaintiff filed an appeal on January 25, 2013, but the Tax Tribunal rendered a decision to dismiss the appeal on the ground that the period for filing the appeal expires on March 28, 2013.

Facts that there is no dispute over recognition, Gap's 3, 7, 18, Eul's 1 and 3 (including each number), the purport of the whole pleadings.

3. Determination on the defense prior to the merits

A. Summary of the defendant's assertion

The instant lawsuit shall be deemed to be a lawsuit seeking revocation of the instant disposition on the grounds that the Defendant’s grounds for invalidation exist. The instant lawsuit ought to be subject to a prior trial procedure regarding the disposition under the National Tax Collection Act, such as the instant case. However, even after the Plaintiff’s receipt of the instant attachment disposition on October 15, 2013 after the lapse of eight years and three months from the receipt of the instant attachment disposition, the Plaintiff filed a petition for a trial on the ground of the instant attachment disposition with the Tax Tribunal and filed a petition for a trial on the grounds of the lapse of the period for filing the petition, and thus, the instant lawsuit is unlawful.

B. Determination

It is apparent that the instant disposition is seeking confirmation on the premise that the instant disposition is void as a matter of course. It is not necessary to go through a pre-trial procedure in a lawsuit seeking confirmation of invalidity of an administrative disposition, including a lawsuit subject to a necessary pre-trial procedure, and there is no limit on the filing period. Therefore, the Defendant’s defense prior to the merits cannot be accepted.

4. Whether the seizure disposition of this case is legitimate

A. Summary of the plaintiff's assertion

1) The Plaintiff used the instant land as a camping ground in ○○ High School under the Plaintiff’s control and left it unattended due to the abolition of the camping ground, but as such, the instant land is fundamental property for education, given that it is expected to be used as a site for growing a field for practical training in the above school cooking. The Plaintiff initially set the disposal period from ○○ superintendent of education up to August 20, 1990 and obtained permission to change the use (for educational purpose and profit-making) of the instant land and fails to dispose of the instant land within the said period, the permission becomes void. Since the said permission was invalidated by the said period, the instant land still remains as fundamental property for education.

On May 30, 2011, the Superintendent of the Office of Education sent a reply to the Defendant along with the Plaintiff’s basic property list stating the instant land as the Plaintiff’s fundamental property for education. On April 14, 1997, the National Tax Tribunal of the Ministry of Finance and Economy rendered a ruling to revoke the attachment disposition of the Defendant’s land on the ground that the instant land is an fundamental property for education.

In full view of the above facts, the pertinent land falls under the basic property for education prohibited from disposition and seizure as it falls under the land area (No. 1), practical training, or research facilities (No. 4) as stipulated in Article 28(2) of the Private School Act and Article 12(1) of the Enforcement Decree of the Private School Act, and thus, the Defendant’s disposition of seizure of this case goes against the mandatory law, and its defect is grave and obvious and null

is the same.

2) Furthermore, the instant attachment disposition is null and void in that it is a disposition contrary to the binding force of the above ruling on the previous attachment disposition.

3) Even if the instant land is fundamental property for profit-making purposes, in order to seize the instant land, permission from the competent authorities should be obtained pursuant to Article 28(1) of the Private School Act. However, the Defendant issued the instant seizure disposition against the instant land without permission from the competent authorities, and such defect is significant and apparent, and thus, the instant disposition is null and void.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Facts of recognition

1) On April 28, 1983, the Plaintiff completed the registration of ownership transfer under its name on the ground of sale on the 25th of the same month with respect to the instant land, and thereafter managed the instant land as a fundamental property for profit-making purposes.

2) On November 25, 1983, the Plaintiff filed an application with the superintendent of education for changing the purpose of use of the instant land as an fundamental property for education, on the ground that he/she uses it as a middle and high school practice site. On December 3, 1983, the Plaintiff obtained permission from the superintendent of education on December 3, 1983.

3) On April 4, 1990, the Plaintiff filed an application with the superintendent of ○○ Office of Education for permission for the alteration of the purpose of use and alternative disposition to the effect that the instant land should be disposed of again as fundamental property for profit and be managed as a substitute for a fixed deposit on the ground of the purpose of using funds for the plan for the dissolution of the camping zone and the transfer of the school site. Accordingly, on May 7, 1990, the superintendent of ○○ Office of Education permitted the alteration of use of the instant land as fundamental property for profit (deposit of the disposal price and the disposition up to August 20, 1990) in addition to certain conditions (the fact that the superintendent of ○○ Office of Education permitted the alteration of the instant land from fundamental property for profit to fundamental property for profit).

4) On August 17, 1990, the Plaintiff applied for the extension of the term of disposition to the Superintendent of the Provincial Office of Education by December 31, 1990. However, on September 1990, the ○○ superintendent notified the Plaintiff of the extension of the term due to the existing conditions of permission and the expiration of the term of validity of the appraisal report. Therefore, the Plaintiff notified the Plaintiff of the extension of the term of validity by preparing the relevant documents.

5) The Plaintiff did not dispose of the instant land within the above disposal period and did not obtain a permit for changing the use of the instant land to the basic property for educational purposes again from the superintendent of education ○○○.

6) However, on July 27, 1998, the Plaintiff submitted to the superintendent of ○○○ Office of Education the pertinent land as an endowment for educational purposes when submitting data following the computerization of basic property of a school foundation. On April 14, 2011, the Plaintiff stated the instant land as an endowment for educational purposes and reported the current status of the Plaintiff’s fundamental property. In addition, the Plaintiff entered the instant land as an endowment for educational administration (NEI) in the National Education Information System.

7) On December 4, 2013, the superintendent of the ○○ Office of Education confirmed that the instant land was deemed fundamental property for education during the instant lawsuit, and notified the Plaintiff of the management of the instant land as fundamental property for profit, on the ground that it was not permitted to change the purpose of use as fundamental property for education, on the ground that it was an fundamental property for profit

8) Meanwhile, the Defendant, on May 8, 1996, issued a seizure disposition on the real estate owned by the Plaintiff including the instant land (hereinafter “previous seizure disposition”) upon the Plaintiff’s default of corporate tax of KRW 1,361,18,760.

9) On November 21, 1996, the Plaintiff appealed against it and filed a request for a trial with the National Tax Tribunal on November 21, 1996. The Plaintiff asserted that this case’s land, etc. as an fundamental property for education, cannot be seized because it is a real estate which cannot be an object of auction pursuant to the relevant Acts and subordinate statutes, such as the Private School Act. The Defendant argued to the effect that it may not be an object of compulsory auction, aside

10) The National Tax Tribunal confirmed on April 14, 1997 by the Superintendent of the Office of Education, and confirmed that part of the real estate including the instant land is registered as an fundamental property for education, according to the current status of the Plaintiff’s property owned by the superintendent of the Office of Education. However, on the ground that the Plaintiff’s real estate subject to attachment disposition, which is recognized as an fundamental property for education in private schools, among the Plaintiff’s real estate, is prohibited from being seized, part of the Plaintiff’s petition for a trial and rendered a ruling revoking the attachment disposition on the instant land (hereinafter “instant ruling”).

11) From 2004 to 2008, ○○○ cultivated the instant land and received subsidies for rice income direct payments from 2009 to 2010, respectively. From 1998 to 2012, ○○○ imposed property tax on the instant land on the Plaintiff from 1998 to 2012, and the Plaintiff did not object to or raise an objection to this.

12) Although ○○ High School has discussed ways to use the instant land, which was left alone without any particular profits, as a site for the cultivation of high seas by promoting the cooking and new establishment of the instant land, or as a site for the development of a medicinal grassland necessary for club activities, such methods were not realistic, and the instant land is maintained in the form of farmland by the closing date of pleadings.

In fact that there is no dispute over recognition, each entry of Gap's 5, 6, 9, 11 through 14, 16, 17, and Eul's 5 through 11 (including each number), the result of the fact inquiry of the first instance court's ○ Office of Education in the first instance, the purport of the whole pleadings.

D. Determination

1) As to the assertion that the instant land is fundamental property for education prohibited from seizure

가) 사립학교법 제28조 제2항은 '학교교육에 직접 사용되는 학교법인의 재산 중 대통령령이 정하는 것은 이를 매도하거나 담보에 제공할 수 없다'고 규정하고, 같은 법 시행령 제12조 제1항 본문은 '법 제28조 제2항의 규정에 의하여 학교법인이 매도하거나 담보에 제공할 수 없는 재산은 당해 학교법인이 설치・경영하는 사립학교의 교육에직접 사용되는 재산으로서 교지(제1호), 교사(제2호), 체육장(제3호), 실습 또는 연구시설(제4호), 기타 교육에 직접 사용되는 시설��설비 및 교재��교구(제5호)에 해당하는 것으로 한다'고 규정하고 있다.

The prohibition of sale of such property (basic property for education) is not limited to the fact that it cannot be the object of a sales contract, but entirely excludes the possibility of transfer of ownership due to sale and purchase, and thus, the sale by the procedure for disposition on default under the National Tax Collection Act is prohibited, and attachment under the National Tax Collection Act is not allowed (see, e.g., Supreme Court Decision 96Nu4947, Nov. 15, 199

B) Therefore, in light of the following facts and circumstances, as to whether the instant land constitutes an endowment of a school juristic person directly used for school education, the instant land cannot be deemed an endowment of a school juristic person directly used for school education, in full view of the facts acknowledged earlier and the overall purport of the arguments as seen earlier, and the following facts and circumstances revealed together.

① On May 7, 1990, the superintendent of the competent office of education permitted the change of the instant land from fundamental property for educational purposes to fundamental property for educational purposes upon the Plaintiff’s application, and there is no possibility that subsequent changes have been made as fundamental property for educational purposes.

② However, the Plaintiff stated the instant land as an fundamental property for educational purposes in the Property Ledger, etc. of the educational foundation, and reported the status of fundamental property to the superintendent of ○○ Office of Education. On December 4, 2013, the superintendent of ○○ Office of Education notified the Plaintiff of the management of the instant land as an fundamental property for profit-making purposes.

③ From 2004 to 2010, ○○○ and New ○○ received subsidies for rice income from the instant land in sequential order. Although ○○○○ imposed property tax on the instant land from 1998 to 2012, the Plaintiff did not object to or raise an objection to such imposition.

④ The instant land is maintained in the form of farmland as well as in the time of the instant disposition, and is not directly used for school education, such as school sites, gymnasiums, practical exercise, or research facilities, which are stipulated in each subparagraph of Article 12(1) of the Enforcement Decree of the Private School Act.

C) As to this, the plaintiff did not permit the change of the purpose of use of the land of this case from the basic property for educational purposes to the basic property for educational purposes even in the permission (No. 16-2) issued by the superintendent of the Office of Education on May 7, 1990 on the plaintiff's application for permission for change of purpose of use and disposal of the land of this case. Thus, the purpose of use of the land of this case is not changed from the basic property for educational purposes to the basic property for educational purposes. Even though the permission granted on May 7, 1990 on the land of this case from the basic property for educational purposes to the basic property for educational purposes, the above permission is attached with the condition that "the permission becomes void unless the land of this case is disposed of by August 20, 1990." Thus, since the permission for change of purpose of use becomes void due to the plaintiff's failure to dispose of the land of this case by August 20, 190, the land of this case still constitutes the basic property for educational purposes.

In full view of the following circumstances revealed in Gap evidence 16-1 and 2 and the results of the fact-finding by the first instance court on the Superintendent of the Office of Education in the ordinary north-do Office of Education in the first instance, it is clear that the land in this case was changed from the basic property to the basic property for profit-making purposes by permission of May 7, 1990, and it cannot be deemed that the change of its use becomes void due to the grounds alleged by the plaintiff.

① According to Article 28 of the Private School Act and Article 11 of the Enforcement Decree of the same Act, an application for permission to change the use of basic property of ○○ Private School and to substitute disposal of basic property is stated as follows: “An application for permission to change the use of basic property of ○○ Private School and an application for permission to change the use of basic property of ○○ Private School is permitted as shown in the attached Form; and “the reason for the change of the use and substitute disposal” in the attached Form, which is attached to the application, shall be replaced by a fixed deposit for not less than two years after the permission to dispose of the land of this case, which is an fundamental property for education, is obtained after changing the use as a profit-making basic property. Accordingly, according to the above contents of the application, it is apparent that the Plaintiff’s application to the Superintendent of ○○ Office of Education on April 4, 1990, changed the use of the land of this case, which is an fundamental property for education, and changed

② As of April 4, 1990, the Plaintiff’s written permission of May 7, 1990 by the superintendent of ○○○ Office of Education on the above application stated as follows pursuant to Article 28 of the Private School Act with respect to the matters of application for permission for the change of use and disposal of fundamental property for educational purposes as of April 4, 1990. The following is stated as “the indication of the property permitted for the change and disposal of the property” and “the conditions of permission.” In full view of the Plaintiff’s application and the language and text of the above permission, it is evident that the permission of ○○ Office of Education on May 7, 1990 by the superintendent of ○○ Office of Education for the change of the land of this case as basic property for profit

③ In the form of permission for the above property, it shall be disposed of in excess of 66,796,800 won, and deposited regularly in the name of the president (at least two years prior to the expiration of the two years) and shall be managed as fundamental property for profit. This property stated that the permission shall lose its effect unless it is disposed of by August 20, 1990.

On August 17, 1990, before the expiration of the disposal period stipulated in the above conditions of permission, the plaintiff filed a request for extension of August 20, 199, which was the original disposal period, on August 31, 1990, to the Superintendent of ○○○ Office of Education for the extension of the disposal period of basic property for the use of ○○○ Private Teaching Institutes for profit. Accordingly, the Superintendent of Gyeongbuk-do Office of Education issued a request for extension of the disposal period on August 20, 1990, which was the original disposal period. The extension of the disposal permission period due to the expiration of the appraisal document and related documents, and re-application for extension of the disposal period. The plaintiff's request for extension of the disposal period and the contents of the ○○○ Office of Education for the extension of the disposal period (the "written request for extension of the disposal period" due to the extension of the disposal period is related to the permission period, and it does not lose the validity of the disposal period of the land of this case.

D) Therefore, the Plaintiff’s assertion that the instant land is an endowment for education is without merit.

2) As to the allegation that the instant attachment disposition goes against the binding force of the ruling, and thus null and void

In full view of the following circumstances revealed in the background of the previous attachment disposition as seen earlier, the details of the judgment on the instant attachment disposition, the developments leading up to the instant attachment disposition, etc., i.e., (i) the National Tax Tribunal recognized that the instant land was registered as an fundamental property for educational purposes in the instant judgment, and determined that it was an fundamental property for educational purposes, and did not find facts or make any decision on the actual status of its use; (ii) at the time of the previous attachment disposition, the Defendant’s real property was seized without examining whether it was an fundamental property for educational purposes directly used for private schools education; and (iii) even at the time of the instant attachment disposition, the Plaintiff and ○○ Office of Education stated the instant land as an fundamental property for educational purposes in the school juristic person registry, etc., but only the instant land among the real property owned by the Plaintiff was attached. As such, it is reasonable to deem that the instant disposition did not constitute an fundamental property for educational purposes, not directly used by a third party, but constitutes the fundamental property for educational purposes, such as the instant land at the time of the instant attachment disposition was registered as the fundamental property.

Therefore, this part of the Plaintiff’s assertion cannot be accepted on the premise that the instant attachment disposition conflicts with the binding force of the instant judgment.

3) As to the allegation that the instant seizure disposition without permission from the competent authorities is null and void

A) According to Article 28(1) and (2) of the Private School Act and Article 12(1) of the Enforcement Decree of the same Act, with respect to fundamental property (basic property for profit) other than land, teachers, etc., where a school foundation is unable to sell or offer as security, donate, lease, exchange, exchange, or offer as security, or where a school foundation intends to sell, lease, exchange, or offer as security, or to waive the obligation or to waive the right, the competent agency’s permission should be obtained. Thus, the seizure of such fundamental property is allowed unless there are special circumstances where the competent agency’s permission is acknowledged as certain, barring special circumstances where it is not possible (see, e.g., Supreme Court Decision 2002Du3669, May 1

B) As seen earlier, the fact that the instant land constitutes a fundamental property for profit-making purposes in accordance with the aforementioned legal principles. However, there is no special circumstance to prove that the circumstances, such as the disposal, etc. of the instant land, are certain, and thus, the seizure of the instant land shall be deemed permissible.

C) Accordingly, according to the standards for securing basic property for profit under the school foundation’s Order on Standards for School Management Property, the Plaintiff asserts that, in the case of the Plaintiff, the basic property for profit-making of KRW 1.8 million per class shall be secured. The Plaintiff consists of middle school 17 classes and high school 27 classes, and the Plaintiff has to secure the basic property for profit-making of KRW 79,200,000. Accordingly, considering that the instant land and the instant land are the entire basic property for profit-making, ○○○○○-ri 26 forest land, which is the object of the attachment disposition issued on March 10, 1990, is the object of the attachment disposition on March 10, 1990, the competent authorities are

Therefore, in addition to the purport of the entire arguments in light of the above evidence, it appears that the Plaintiff’s property for profit, other than the instant land and the instant land ○○○○○○○○ 26, 000, is more real estate than other real estate, and the Plaintiff’s cash and other property exists. In light of this, it is difficult to readily conclude that the Plaintiff’s financial status does not meet the minimum standards on fundamental property, and it is difficult to readily conclude that the competent authority does not permit the disposal, etc. of the instant forest solely on the grounds of the Plaintiff’s assertion

shall not be effective.

D) Therefore, the Plaintiff’s above assertion on this part cannot be accepted.

5. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and since the judgment of the court of first instance is justified, the plaintiff's appeal is dismissed, and it is so decided as per Disposition.