In cases where the right of lease on a deposit basis is extinguished due to the expiration of the term of chonsegwon or the termination of the contract to establish a right of lease on a deposit basis, and only the right of lease on a deposit basis is secured by the right of lease on a deposit basis, whether the right of lease on a deposit basis constitutes a "right of lease on a deposit basis" subject to allocation under Article 81 (1) 3 of the former National Tax Collection Act even if there is an opposing power (affirmative in principle), and

Articles 80(1), 81(1)3, and 83(1) of the former National Tax Collection Act (Amended by Act No. 913, Apr. 4, 2011; see current Article 68-2(1))

Supreme Court Decision 2012Da60329 Decided December 24, 2014 (Gong2015Sang, 176)

Tae Young Construction Co., Ltd. (Limited Law LLC, Attorneys Lee In-ho et al., Counsel for the defendant-appellant)

[Plaintiff-Appellant] Plaintiff 1 and 2 others (Law Firm LLC, Attorneys Jin-man et al., Counsel for plaintiff-appellant-appellant)

Seoul High Court Decision 2016Na2075587 decided June 23, 2017

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

The grounds of appeal are examined.

1. Article 80(1) of the former National Tax Collection Act (amended by Act No. 913, Apr. 4, 2011; hereinafter the same) provides that the head of a tax office shall distribute the proceeds from sale of attached property and the deposit interest thereof, etc. pursuant to the provisions of Article 81. Article 81(1) provides that the said money shall be allocated to the following national taxes, surcharges, expenses for disposition on default, and other claims. Article 81(1) provides that the said money shall be apportioned to the following national taxes, surcharges, expenses for disposition on default, and claims. Article 83(1)3 provides that “a claim secured by a right of lease on a deposit basis, pledge, or mortgage relating to attached property” In addition, the latter part of Article 83(1)

Examining the contents and purport of the aforementioned provisions, even if the right of realizing a right of lease on a deposit basis is extinguished due to the expiration of the duration or termination of the contract to establish a right of lease on a deposit basis, and the right of lease on a deposit basis has an opposing power, the right of lease on a deposit basis remaining after securing the right of realizing a right of lease on a deposit basis shall be deemed as constituting a "right of lease on a deposit basis" subject to distribution under Article 81(1)3 of the former National Tax Collection Act, in principle, even if there are special circumstances, such as the buyer who suffered unexpected damages due to the termination of the contract to establish a right of lease on a deposit basis and gains unexpected profits, etc., the right of lease on a deposit basis shall not be allocated even if the buyer is acquired to the buyer and the person having a right of lease on a deposit basis demands distribution (see Supreme Court Decision

2. A. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

(1) The Defendant concluded a lease agreement on the instant leased building owned by Yeongdeungpojin Development Co., Ltd. (hereinafter “Yjin Development”), and completed on September 16, 2003 the registration of the establishment of chonsegwon (hereinafter “right to lease on a deposit basis”) with respect to the instant leased building on a deposit basis, from September 2, 2003 to September 1, 2013, and from September 2, 2003 to September 1, 2013, the Defendant completed the registration of the establishment of chonsegwon (hereinafter “right to lease on a deposit basis”).

(2) On September 16, 2003, the Plaintiff completed the registration of the establishment of a neighboring mortgage with respect to the leased building of this case, the maximum debt amount of 36,623,671,50 won, the debtor’s early development, and the plaintiff as a mortgagee.

(3) On August 9, 2004, the head of the Suwon Tax Office attached the instant leased building in order to collect the tax on the field development, and around October 11, 2005, pursuant to Article 61 of the former National Tax Collection Act, requested the Korea Asset Management Corporation to sell the instant leased building. On October 26, 2005, the Korea Asset Management Corporation notified the Defendant who is the person having chonsegwon of the public auction, and the Defendant received it around that time.

(4) The first estimated sale price of the leased building of this case was KRW 44,416,00,000, which was the four times. The Defendant bid at the fifth public auction (26,649,600,000 of the estimated sale price) of the instant auction procedure at KRW 28,260,000 and was decided to sell by the Korea Asset Management Corporation around December 22, 2005.

(5) On December 30, 2005, the Defendant sent a content-certified mail containing a declaration of intent to terminate the instant lease agreement on the ground that he/she did not perform his/her duty to use and profit from the leased building as a lessor on the ground that he/she did not pay the electricity fee and caused danger to a short time due to default of national taxes, and that the leased building entered a public auction procedure, etc., which led to the arrival of content-certified mail for the development of a long-term.

(6) On February 24, 2006, the Korea Asset Management Corporation designated the distribution date as February 10, 2006 and notified the distribution subjects to submit a written request for distribution, a certificate of claim cause, etc. on February 10, 2006. On February 9, 2006, the Plaintiff demanded the distribution of KRW 965,917,80 of the outstanding principal and interest of the construction cost, and KRW 608,573,916 of the unpaid principal and interest of the construction cost, and KRW 608,573,916 of the indemnity principal and interest of the construction cost, and ③ the estimated amount of repayment of the loans in Yeongdeungpo Jin-jin Development to KRW 4,431,780,820, 272,536 of the estimated amount of the loan repayment, and the Defendant requested the distribution of KRW 28,020,00

(7) On February 24, 2006, the Korea Asset Management Corporation prepared a distribution statement to distribute KRW 27,668,997,40 to the Defendant and to distribute it to subordinate Plaintiff. At that time, distribution according to the above distribution statement was completed.

B. We examine these facts in accordance with the legal principles as seen earlier.

If the contract to establish a right to lease on a deposit basis can be deemed terminated in accordance with the above defendant's notice of termination, the right to use the right to lease on a deposit basis of this case is extinguished. Thus, barring special circumstances, barring any special circumstance, the right to lease on a deposit basis of this case constitutes "right to lease on a deposit basis" subject to distribution under Article 81 (1) 3 of the former National Tax Collection Act, it shall be deemed that the defendant can be apportioned according to the above request for distribution. Moreover, there is no special circumstance to deem that the contract to lease on a deposit basis of this case caused unexpected damages to the plaintiff, who is a junior right holder

C. Nevertheless, solely based on its stated reasoning, the lower court determined that the Defendant could not receive the distribution of the instant chonsegwon on the premise that the instant chonsegwon was acquired by the buyer even if the instant chonsegwon was terminated during the process of public sale.

In so determining, the lower court erred by misapprehending the legal doctrine on distribution to the person having chonsegwon in the procedure of public sale under the former National Tax Collection Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, 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 Park Jung-hwa (Presiding Justice)