[1] The meaning of "registration of an application for auction" under Article 14 (1) of the Commercial Building Lease Protection Act, which is the base point of time when the lessee of the commercial building shall meet the requirements for setting up against him to obtain a preferential repayment of a specified amount of the deposit in the public auction under the

[2] Method of determining the priority order between the lessee and the tax claimant who has the requisite and the fixed date under the Commercial Building Lease Protection Act

[1] The public auction under Article 5 (2) of the Commercial Building Lease Protection Act is used as a concept corresponding to the auction under the Civil Execution Act, and it does not mean only the method of realization during the procedure of disposition on default of national taxes, but also includes all the cases where the procedure of disposition on default of national taxes is comprehensively referred to in the procedure of disposition on default under the National Tax Collection Act. Therefore, the term "registration of auction application" under the latter part of Article 14 (1) of the same Act means the first procedure of disposition on default to realize the contents of tax claims in the public auction under the National Tax Collection Act in order to obtain the satisfaction thereof, and it is reasonable to interpret that the term "registration of attachment under the disposition on default of national taxes" prohibiting the disposition of a taxpayer in order to acquire the specific property by force, and it does not mean "registration of attachment property" under the disposition on default of national taxes.

[2] Article 5(2) of the Commercial Building Lease Protection Act provides that a lessee of a commercial building who has met the requirements for counterclaim under Article 3(1) of the same Act and has obtained a fixed date on the lease agreement from the head of the competent tax office, shall have the right to be reimbursed in preference to junior creditors and other creditors. This purport is to recognize the right to preferential reimbursement, in cases where the lessee has the fixed date on the lease agreement, the right similar to the real estate security is recognized. Therefore, it is reasonable to deem that the "person having the fixed date and other creditors" under Article 5(2) of the same Act includes tax creditors. Therefore, the priority order between the lessee and the tax obligor who has received the fixed date shall be determined by Article 35(1)3 of the Framework Act on National Taxes, and among them, the lessee shall determine and distribute the priority according to the final time when the lessee satisfies the requirements for counterclaim and the fixed date and the statutory date of tax

[1] Articles 5(2) and 14(1) of the Commercial Building Lease Protection Act, Articles 45(1) and 67 of the National Tax Collection Act / [2] Articles 3(1) and 5(2) of the Commercial Building Lease Protection Act, Article 35(1)3 of the Framework Act on National Taxes

Maximum original (Attorney Seo-tae, Counsel for the plaintiff-appellant)

Korea Asset Management Corporation

March 28, 2006

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's disposition rejecting the distribution of the proceeds of public sale against the plaintiff on July 13, 2004 shall be revoked.

1. Basic facts

A. On December 12, 2002, the Plaintiff entered into a sales contract with the stone industry development company (hereinafter “welve industry”) on the sales price of KRW 148,00,000 among the 199-6 large scale 119m2, Jung-gu, Seoul and 19m2, and the 11m2,400,000 total amount of KRW 88,40,000,00 among the sales price of reinforced concrete-style 11m2, which was newly constructed as an aggregate building on the 199-7 large scale 248m2, 199-7 large scale 248m2 (hereinafter “instant building”).

B. However, the stone industry has failed to pay taxes equivalent to KRW 1.5 billion in total, including value-added tax, due to business depression, and accordingly, the director of the Nam-gu District Tax Office entered the procedure of disposition on default to collect it, and attached 34 stores registered as classified among the buildings of this case on August 2, 2003. On August 6, 2003, the Seoul Central District Court entrusted the registration of attachment to the registry office of the Seoul Central District Court, and entered the attachment registration for the said 34 stores on August 6, 2003, and requested the Defendant to sell by proxy a public auction pursuant to Article 61(1) of the National Tax Collection Act and Article 68-2(1) of the Enforcement Decree of the National Tax Collection Act.

C. Accordingly, on November 12, 2003, the Defendant announced the 44th public auction notification as to the 13 stores among the said 34 stores, including the estimated sale price, the place of bidding, and the several bidding date [the 97th Internet bidding (the 97th Internet bidding) between 10:00 on December 8, 2003 and 11:00 on December 9, 2003, the on-site bidding (the date bidding) and December 11:00 on December 10, 2003].

D. Meanwhile, on November 20, 2003, the Plaintiff entered into a lease contract with the said 34 stores, including the said 34 stores and the said 260 stores, for each of the said 34 stores with a lease agreement of KRW 10,000,000 for each of the said 10 stores, in lieu of the payment of the lease deposit. The Plaintiff paid the difference in KRW 1,60,000 in cash, and then registered business with the director of the Nam-gu Tax Office on November 22, 2003, and operated the said 9 stores with a fixed date on the lease contract for each of the said 34 stores after obtaining a fixed date from the director of the tax office on November 24, 2003.

E. After that, the Defendant notified the interested parties, including the delinquent business operator, of the public auction on November 12, 2003. However, when the notice of the public auction for the stone industry was returned to the addressee's residence and rejection on December 5, 2003, the Defendant cancelled the scheduled bid on December 97, 200, and issued a notice of the public auction on December 24, 2003 to the 34 units attached to the Seoul Economic Newspapers, 5th public auction, 33 units including the Plaintiff's nine units leased on the 34th public auction procedure, 5th public auction, 36th public auction of the above 20th public auction to the 20th public auction, 36th public auction of the above 20th public auction, 36th public auction of the above 20th public auction of the above 34th public auction, 10,000 won to the 20th public auction of the above 30th public auction, 20638th 26363.

[Grounds for recognition] The non-contentious facts, Gap 1 through 16, 18, Gap 19-1 through 5, Gap 20-1, 20-5, and Eul 5, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The deposit of small-sum lessee with opposing power prior to the date of the first public notification under the National Tax Collection Act takes precedence over national taxes. Since the Defendant’s public notification of the 4th public auction as of November 12, 2003, which was announced by the Defendant as of November 12, 2003, becomes null and void by cancellation by the Defendant, the first public notification date of the public auction shall be December 24, 2003, which was the “public notification of the 50th public auction.” As long as the Plaintiff satisfies the requirements for opposing power under the Commercial Building Lease Protection Act (hereinafter “Act”) by delivering the said 9 stores and registering its business on November 22, 2003, which was before the date of the first public notification of the public auction, the deposit of each shop shall be preferentially allocated to the Plaintiff, which was merely KRW 10,000,000, which was the secured right, rather than the claims of the national bank or the national taxes requested by the director of the tax office of Seodaemun-gu.

(2) Even if the Plaintiff is not a small lessee with the highest priority payment right, the Plaintiff is merely a 90,000,000 won, even if all the lease deposits of the said 9 shop are added up for the said 9 shop, and as a lessee with the said 9 shop having the said 9 shop’s registration and the fixed date, so the order of priority is compared as of the point of time with the opposing power and the fixed date at which the Plaintiff’s lease deposit refund claim with the opposing power and the fixed date should be decided on November 24, 2003, notwithstanding the national tax claim of the director of the tax office of Seodaemun-gu, which issued a public auction notice on December 24, 2003, the Defendant’s disposition of refusing to distribute the amount of the public auction to the Plaintiff is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Markets:

(1) Whether the Plaintiff can be distributed as a small lessee

According to Articles 5 and 14(1) and (3) of the Act, Article 6(1)1 of the Enforcement Decree of the Act, and Article 7(1)1 of the Enforcement Decree of the Act, if the deposit for lease of a commercial building in Seoul is not more than 45,00,000 won, the lessee who has leased the commercial building in Seoul may be paid the deposit in preference to the national taxes or other secured creditors from the proceeds from the sale of the commercial building leased up to 13,50,000 won at an auction under the Civil Execution Act or at a public auction under the National Tax Collection Act. However, in order to obtain the preferential repayment of such a specified amount, the lessee must first meet the requirements for setting up against the transfer of the commercial building and the application for the registration of the business in accordance with the latter part of Article 14(1)

However, the public auction under Article 5 (2) of the Act is used as a concept corresponding to the auction under the Civil Execution Act, and it does not mean only the method of realization among the procedures for disposition of national taxes in arrears, but also includes all cases where the leased building is delinquent in accordance with the procedure for disposition of delinquent taxes in arrears under the National Tax Collection Act.

Therefore, in a public sale under the latter part of Article 14(1) of the Act, the term "registration of auction application" means "registration of seizure by a disposition on default" which prohibits disposal of a taxpayer in order to realize the contents of a taxation claim and obtain satisfaction thereof, as the first procedure for the disposition on default to obtain the satisfaction thereof. It is reasonable to interpret that public sale under the National Tax Collection Act means "registration of seizure by a disposition on default" which prohibits the disposition of the taxpayer in order to compulsorily secure the specific property. It does not mean "public sale notification of seized property" which is merely inducing a high-priced

Therefore, in this case, before November 22, 2003, which is equipped with the requisite to set up against the said nine shops leased by the Plaintiff, the head of Seodaemun Tax Office attached as part of the disposition for arrears and completed the entry registration on August 6, 2003, the Plaintiff cannot be allocated by exercising the top priority right as a small lessee. The Plaintiff’s assertion on a different premise is without merit.

(2) Whether the Plaintiff can be distributed as the lessee with the fixed date

Article 5(2) of the Act provides that a lessee of a commercial building who has met the requirements for counterclaim under Article 3(1) of the Act and has obtained the fixed date from the head of the competent tax office on the lease contract shall have the right to be paid security deposit in preference to junior creditors and other creditors. This purport is to recognize preferential payment right by recognizing a right similar to a real estate security right in case he has obtained the fixed date in the lease contract. Thus, it is reasonable to deem that the "person having the right of preferential payment and other creditors" under Article 5(2) of the Act

Therefore, the priority order between the lessee and the tax claimant who has obtained the fixed date should be determined by Article 35 (1) 3 of the Framework Act on National Taxes, and the lessee should determine the priority order according to the final time when the lessee satisfies the requirements for counterclaim and the fixed date and after the statutory date of the tax.

However, as recognized earlier, the time when the Plaintiff finally satisfies the requirements for counterclaim and the fixed date is set up on November 24, 2003; however, the time of setting up the right to collateral by the National Bank of Korea, which was distributed by the Defendant, is August 27, 2002; the statutory due date of national tax related to the seizure by the disposition of arrears by the director of the Nam-gu Tax Office is from October 25, 2002 to February 10, 2003, and all of the time when the Plaintiff finally satisfies the requirements for counterclaim and the fixed date is faster than the time when the Plaintiff finally satisfies the requirements for counterclaim and the fixed date. Accordingly, the Plaintiff’s tenant who has obtained the fixed date cannot be allocated preferentially to the national bank’s claims or the national tax claims by the director of the Nam-gu Tax Office. Therefore, the Plaintiff’s assertion on the premise that the priority order

(3) Conclusion

Therefore, the instant disposition that the Defendant refused to distribute the proceeds of sale by excluding the Plaintiff when preparing the instant distribution statement is lawful.

3. Conclusion

Therefore, the plaintiff's claim seeking revocation on the premise that the defendant's disposition of this case is illegal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-hwan (Presiding Judge)