Whether the right of lease on a deposit basis with opposing power in the procedure of public sale under the former National Tax Collection Act is not extinguished by sale regardless of the demand for distribution (affirmative), and in such cases, the scope of the “right of lease on a deposit basis” under Article 81(1)3 of the same Act.

According to the former National Tax Collection Act (amended by Act No. 9913, Apr. 4, 2011; hereinafter the same) there is no express provision regarding whether the right to lease on a deposit basis is extinguished due to sale; in light of the nature as the right to lease on a deposit basis, unless otherwise expressly provided, the right to lease on a deposit basis with opposing power is acquired by the purchaser; in principle, the right to lease on a deposit basis with opposing power is taken over by the purchaser without extinguishment due to sale; in a compulsory execution procedure under the former Civil Procedure Act (wholly amended by Act No. 6626, Jan. 26, 2002) or the former Civil Execution Act (amended by Act No. 6626, Jan. 26, 2002; hereinafter the same shall apply); in a case subject to the former National Tax Collection Act, the right to request distribution is not recognized pursuant to the provisions of the Civil Execution Act, and it is reasonable to interpret that the right to lease on a deposit basis with opposing power is taken over without extinguishment due to sale.

Articles 80(1), 81(1)3, and 83(1) of the former National Tax Collection Act (Amended by Act No. 9913, Apr. 4, 201); Article 303 of the Civil Act; Article 608(2) of the former Civil Procedure Act (Amended by Act No. 6626, Jan. 26, 2002); Article 91(3) and (4) of the Civil Execution Act

Supreme Court Decision 98Da50869 delivered on February 25, 2000 (Gong2000Sang, 801) Supreme Court Decision 2001Du7329 Delivered on December 11, 2001

Seoul High Court Decision 200Na14488 delivered on August 1, 200

Defendant 1

Defendant 2 and one other (Attorney Han-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Na92697 decided May 25, 2012

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

Of the grounds of appeal, it is judged that the distribution to Defendant 1, who is the person having chonsegwon, is erroneous.

1. The lower court determined that, insofar as Defendant 1, a person having chonsegwon, requested distribution prior to the preparation of a distribution statement, distribution of the entire amount of the deposit money requested by the Korea Asset Management Corporation to the above Defendant is justifiable, insofar as it did not have any grounds for exclusion of the right to lease on a deposit basis with opposing power under the former National Tax Collection Act (amended by Act No. 9913, Apr. 4, 201; hereinafter the same shall apply) from the right to distribution, and only before the preparation of a distribution statement

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. Article 80(1) of the former National Tax Collection Act provides that the head of a tax office shall distribute the proceeds from the sale of attached property and the deposit interest thereof, etc. pursuant to the provisions of Article 81. Article 81(1) provides that national taxes, surcharges, expenses for disposition on default, local taxes, or public charges related to seizure shall be allocated to the following national taxes, surcharges, expenses for disposition on default, expenses for disposition on default, and other claims. Article 81(1) provides that "national taxes, surcharges, expenses for disposition on default, local taxes, or public charges related to seizure requested for delivery" under subparagraph 1, subparagraph 2, subparagraph 3, and "claims secured by the right of lease on a deposit basis, pledge, or mortgage related to attached property" under Article 83(1) of the former National Tax Collection Act. In addition, the latter part of Article 83(1) of the former National Tax Collection Act provides

B. However, the former National Tax Collection Act does not have any explicit provision as to whether the right to lease on a deposit basis is extinguished due to sale, and in view of the nature as the right to lease on a deposit basis, unless otherwise expressly provided, the right to lease on a deposit basis with opposing power is acquired by the purchaser (see, e.g., Supreme Court Decision 98Da50869, Feb. 25, 200). The former Civil Procedure Act (wholly amended by Act No. 6626, Jan. 26, 2002) or compulsory execution procedure under the Civil Execution Act provides that the right to lease on a deposit basis with opposing power shall not be extinguished due to sale, and if the purchaser of the right to lease on a deposit basis fails to obtain the demand for distribution of the right to lease on a deposit basis after the sale of the right to lease on a deposit basis, the former provisions of the Civil Execution Act or interpretation may not be applied mutatis mutandis or applied mutatis mutandis to the case subject to the former National Tax Collection Act (see Supreme Court Decision 2001Du7329, Dec. 11, 2001).

C. Nevertheless, the lower court determined that it is reasonable to allocate Defendant 1, who is the person having chonsegwon, as the person having chonsegwon, to the above Defendant as the subject of allocation. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of allocation subject to distribution under Article 81 of the former National Tax Collection Act, thereby adversely affecting the conclusion of the judgment.

3. Therefore, without examining the remainder of the grounds of appeal, the lower judgment is entirely reversed, including the ancillary claim against Defendant 2 and 3, which is subjective and preliminaryly joined, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)