2020Ma7695 Compulsory auction of immovables

J. J. Appellant

Attorney Lee Young-hoon, Counsel for the plaintiff-appellant

Daegu District Court Order 2020Ra10553 dated October 26, 2020

April 9, 2021

The order of the court below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of reappeal are examined.

Where a registration of seizure by a disposition on default has been completed subsequent to the registration of the decision on commencing auction on immovables, the State with a taxation right may receive a distribution only by filing a request for distribution with the court of auction by the deadline for demanding a distribution (see, e.g., Supreme Court Decision 2002Da22212, Sept. 27, 2002).

According to the reasoning of the order of the court below and the records, the non-party received the provisional attachment order of this case: ① on March 18, 2009, the claim amount of KRW 630,000,000 (property division amount of KRW 580,000,000, consolation money of KRW 50,000) on the real estate owned by the debtor; ② on May 13, 2015, the non-party was awarded a favorable judgment on the property division amount of KRW 668,00,000 on the lawsuit filed against the debtor on the merits against the debtor on May 13, 2015; ③ the creditor obtained the above judgment claim against the debtor and applied for compulsory auction on the real estate of this case; ④ on June 7, 2019, the non-party filed an application for compulsory auction and completed the registration on the same date; ④ on the date when the debtor completed the auction procedure of this case, the non-party was notified of the debtor’s tax amount of KRW 30,5,50,00,5,5.

Examining the above facts in light of the legal principles as seen earlier, since the registration of seizure was completed pursuant to the disposition on default by the Republic of Korea (the director of the Jeju Tax Office) after the decision to commence the auction on the instant real estate was registered, the total amount of KRW 6,053,437,020 (= KRW 1,279,030,030 + KRW 4,774,406,130 + KRW 4,06,000) of the Republic of Korea (the total amount of KRW 1,279,07,000 + KRW 4,774,40), which was after the end of the period for the demand for distribution, shall not be included in the distribution. The amount of the creditor’s request for the delivery of tax prior to the expiration of the period for the demand for distribution, which was 20,183,460 won (=85,800 won + KRW 1560,740,536,00,00).

Nevertheless, the court below held that the amount of the creditor's claim for delivery, which takes precedence over the creditor's claim for judgment, exceeds the highest bid price, constitutes a case where the auction procedure of this case is not likely to remain in the auction procedure on this premise. In so determining, the court below erred by misapprehending the legal principles as to the method of determining whether there is a possibility of remaining in the auction procedure. The grounds for reappeal

Therefore, without further proceeding to decide on the remaining grounds of reappeal, the order of the court below shall be reversed, and the case shall be 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

April 9, 2021

Justices Kim Jae-hwan

Justices Park Sang-ok

Justices Lee In-bokon

Justices Noh Jeong-hee