[1] Whether there is a benefit to seek nullification of the attachment disposition even if the attachment registration based on the attachment disposition has been made (affirmative)

[2] Whether seizure of fundamental property other than school premises, teachers, etc. which a school foundation is unable to sell or offer as security is allowed (affirmative)

[3] Whether res judicata of a final and conclusive judgment dismissed in a lawsuit seeking revocation of a taxation disposition also affects the lawsuit seeking nullification of the said taxation disposition (affirmative)

[1] Since a seizure disposition based on the disposition on default is distinct from the registration of seizure, which is the execution method based on the disposition on default, it cannot be deemed as seeking the cancellation of the registration on attachment itself, and even if the registration on attachment is cancelled, it is necessary to eliminate the apprehension and risk as long as the seizure disposition exists as it is externally effective. Therefore, even if the registration on attachment based on the disposition on attachment has been completed, there is a benefit to seek the nullification of the seizure disposition.

[2] According to Article 28(1) and (2) of the Private School Act, Article 12(1) of the Enforcement Decree of the Private School Act and Article 12(1) of the Enforcement Decree of the Private School Act, with respect to fundamental property other than school sites and teachers, etc., where a school juristic person sells, donates, leases, exchanges, changes in use, or provides as security, or where a school juristic person intends to sell, lease, exchange, or offer as security, or to waive the obligation or the right, the competent agency’s permission should be obtained. Thus, seizure of such fundamental property shall be allowed unless there are special

[3] A lawsuit seeking revocation of a taxation disposition is the substantive and procedural illegality of the taxation disposition, and the subject matter of the deliberation is the objective existence of the tax base and tax amount, which are the tax obligations recognized by the tax authority's taxation disposition, i.e., the propriety of the taxation disposition concerned. When the judgment dismissing the claim for revocation of the taxation disposition becomes final and conclusive, res judicata has been created as to the legitimacy of the taxation disposition, and the plaintiff cannot bring an action seeking nullification of the final and conclusive judgment dismissed in the lawsuit seeking revocation of the taxation disposition. Thus, res judicata effect of the final and conclusive judgment dismissed in the lawsuit seeking nullification of

[1] Article 28 of the Local Tax Act, Article 35 of the Administrative Litigation Act / [2] Article 28 of the Private School Act, Article 12 (1) of the Enforcement Decree of the Private School Act / [3] Article 28 of the Private School Act, Article 12 (1) of the Enforcement Decree of the Private School Act, Articles 8 and 30 of the Administrative Litigation Act, Article 216 of

[1] Supreme Court Decision 96Nu4947 delivered on November 15, 1996 (Gong1997Sang, 121), Supreme Court Decision 2000Du697 delivered on November 27, 2001 (Gong2002Sang, 176) / [2] Supreme Court Decision 2002Nu2209 Delivered on September 30, 2002 / [3] Supreme Court Decision 86Nu491 Delivered on November 10, 1987 (Gong193Sang, 469) Supreme Court Decision 92Nu6891 Delivered on December 8, 1992 (Gong193Sang, 193Sang, 469). Supreme Court Decision 92Nu6891 delivered on December 8, 1992 (Gong193; 496Nu9799 delivered on September 29, 196)

○ University of a school juristic person (Attorney Han-chul, Counsel for the defendant-appellant)

The head of Gwangju Metropolitan City Southern-gu

Gwangju High Court Decision 2001Nu990 delivered on April 11, 2002

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. The judgment of the court below

According to the judgment of the court below and the judgment of the court of first instance as cited by the court below, the court below acknowledged that the defendant issued a disposition of seizure on September 27, 200 to collect delinquent taxes under Article 28 of the Local Tax Act, and completed a registration of seizure on September 29, 200, as the Gwangju District Court No. 50925, which was received on September 29, 200. As to the lawsuit of this case seeking nullification on the ground that the seizure disposition of this case is null and void on the ground that it was conducted without permission from the competent authorities under Article 28 (1) of the Private School Act, and that the seizure disposition of this case is null and void on the ground that the seizure disposition of this case was invalidated on the basis of the seizure disposition of this case, even if the seizure disposition of this case was null and void, the plaintiff as the plaintiff can seek revocation of the above seizure registration on the same ground. Thus, seeking nullification on the seizure disposition of this case by litigation cannot be deemed as a

2. The judgment of this Court

A. Since a seizure disposition is distinct from an administrative disposition, which is the execution method based on it, it cannot be deemed as seeking the cancellation of a seizure disposition itself, and even if a seizure registration is cancelled, it is necessary to eliminate the apprehension and risk so long as the seizure disposition exists as it is externally effective. Thus, even if a seizure registration based on a seizure disposition has been completed, there is a benefit to seek the nullification of the seizure disposition (see, e.g., Supreme Court Decisions 96Nu4947, Nov. 15, 1996; 200Du697, Nov. 27, 2001).

Therefore, the lower court’s determination that the instant lawsuit was unlawful on the sole ground as there was no benefit of confirmation cannot be deemed to have committed a misunderstanding of the legal doctrine on the benefit of confirmation.

B. However, according to Article 28(1) and (2) of the Private School Act, Article 12(1) of the Enforcement Decree of the Private School Act and Article 12(1) of the Enforcement Decree of the Private School Act, with respect to fundamental property other than land, teachers, etc. which a school juristic person is unable to sell or provide as security, donate, lease, exchange, exchange, or offer as security, the school juristic person is required to obtain permission from the competent authorities, and unless there are special circumstances such as where the competent authorities cannot obtain permission, the seizure of such fundamental property shall be allowed (see Supreme Court Order 2002Ma2209, Sept. 30, 200). Thus, according to the records, the real property in this case can be known that it is a basic property for profit, other than land, teachers, etc. which a school juristic person is unable to sell or offer as security, the seizure of the real property in this case shall be permitted.

In addition, a lawsuit seeking revocation of a taxation disposition is the substantive and procedural illegality of the taxation disposition, and the subject matter of the deliberation is the objective existence of the tax base and tax amount, which are the tax obligations recognized by the taxation authority by the taxation disposition, i.e., the legality of the taxation disposition concerned, and the validity of the judgment dismissing the claim for revocation of the taxation disposition, and the plaintiff cannot seek confirmation of invalidity as it becomes null and void, and thus the res judicata effect of the final and conclusive judgment dismissed in the lawsuit seeking revocation of the taxation disposition also affects the lawsuit seeking confirmation of invalidity of the taxation disposition (see Supreme Court Decision 95Nu1880 delivered on June 25, 1996). According to the records, the plaintiff filed a lawsuit seeking revocation on the grounds that it is imposed on the basic property for education, which is the basis of the taxation disposition in this case, and thus, it cannot be argued that the above taxation disposition in this case is void automatically on the grounds that it is imposed on the basic property for education in this case.

Therefore, the attachment disposition of this case cannot be considered as an invalidation disposition.

C. Ultimately, the lower court erred by maintaining the judgment of the first instance that dismissed the lawsuit on the ground that the instant lawsuit had no interest in confirmation. However, insofar as the instant claim is not well-grounded, it would result in the Plaintiff’s disadvantage to the dismissal of the claim in the instant case that only the Plaintiff appealed. Therefore, the lower judgment should be maintained.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Hyun-chul (Presiding Justice)