208Gahap18232 Demurrer against distribution

○○ (71 - 1)

Mayang-si

[Defendant-Appellant] Gyeong-gu et al.

Attorney Lee In-bok et al., Counsel for the defendant-appellant

Dok-si

Suwon-si

The Minister of Justice 000

Litigation Performers 000 et al. 11

March 27, 2009

April 17, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

Of the dividend table prepared by the above court on August 008, 2008, the dividend amount of KRW 113, 138, and 610 to the defendant, among the dividend table prepared by the above court on August 00, 2008, the amount of KRW 113, 138, and 610 to the plaintiff, and the dividend amount to the plaintiff.

0 won shall be corrected to 113, 138, 610 won, respectively.

1. Basic facts

A. The land and buildings listed in the attached list (hereinafter referred to as the "real estate of this case") had been registered for the transfer of ownership under the name of Nonparty A, but on November 0, 2006, the registration of the establishment of the second priority collective security right was completed on the part of the debtor B, the mortgagee of the right to collateral security, the plaintiff 150,000,000 won.

B. On September 0, 2007, at the request of the Dogsan Cooperatives, which is the first-class collateral security right, the decision to commence the auction was made on September 0, 2007 with respect to the instant real estate at Suwon-gu, Suwon-gu, Suwon, 2000, and on March 00, 2008, the Defendant’s seizure registration was completed.

C. Meanwhile, the Defendant’s capital gains tax amounting to 61, 158, 959 won and additional tax amounting to 202, and KRW 13, 607, and 867 (in total, the sum of the amount of penalty tax for unfaithful reporting and the amount of additional tax for unfaithful payment), totaling 74, 766, and 820 won.

On February 0, 204, after making a decision of occasional assessment, the tax notice was sent to A on February 0, 2004, and the tax notice was sent on November 0, 2005 on the interim prepayment of KRW 2,325,750 for global income tax year 2005.

D. The auction prepared a distribution schedule on August 00, 208 on the instant real estate. From among the actual amount of KRW 2,935,731,410, 113, 138, 610 (including penalty tax), global income tax, and additional charges therefor, the total amount of KRW 35,362,470, 683, and 570, the sum of KRW 113,138, 610 (including KRW 74,766, 820 + 2,325, 750 + 35, 362, 470 + 683,570), the distribution schedule that excludes the Plaintiff’s dividends.

E. Accordingly, the Plaintiff appeared on the date of distribution on August 00, 2008, and raised an objection against the amount of distribution of the Defendant, and filed the instant lawsuit on September 0, 2008, within seven days thereafter.

[Grounds for Recognition] Each entry in Gap evidence Nos. 1, 2, 3, 4, Eul evidence Nos. 1, 2, 3, and 4 (including the number of evidence Nos. 3 and 4) and the purport of the whole pleadings

2. A party’s assertion and determination

A. Party’s assertion

The plaintiff, for the purpose of Article 35 (1) 3 (b) of the Framework Act on National Taxes, "if the government determines the tax base and tax amount at a fixed, corrected or occasional assessment, the purpose of legislation of the provision that is the statutory due date" shall be the date the notice is sent to the tax obligor.

Since the statutory due date is more than the third party when a tax claim is publicly announced, such as the registration of seizure of real estate, etc., the defendant asserts that the plaintiff has the right to receive preferential dividends than the defendant as long as the registration of seizure was made after the plaintiff's registration of seizure was completed after the registration of seizure was completed.

In addition, since the plaintiff needs a duty payment notice and confirmation procedure different from the principal tax, it is unlawful to distribute the amount of the additional dues to the defendant unless the above procedure is completed.

I asserts.

B. Determination

First of all, we examine the Plaintiff’s argument on the interpretation of statutory due date under the Framework Act on National Taxes. In order to promote harmony between the principle of good faith and the order of financial transactions by private law, the standards for determining friendlyness between a tax claim and a security right shall be clearly determined by law in a line that is in harmony between the public interest that recognized the priority of a tax and the protection of a security right. The base date shall be determined by the law. The taxpayer can confirm the existence and scope of a tax claim and the time when the tax authority can not arbitrarily change by the tax authority, etc., and the legislators shall have the legislative discretion to determine the amount of a tax by reasonable judgment. Accordingly, the date of the report cannot be said to have undermined the predictability of the secured party, or the tax authority’s property right cannot be said to be infringed (see Constitutional Court Decision 2005HunBa60, May 31, 2007). Therefore, even if the security right of a tax claim exists and the date of a tax payment notice is not given after the date of the registration of a mortgage.

Meanwhile, in this case, the delivery date of the Defendant’s notice of capital gains tax and additional tax tax payment is February 0, 2004; the delivery date of the global income tax payment notice is November 0, 2005; and the Plaintiff’s establishment date of the right to collateral security on November 00, 2006 is as seen earlier; thus, insofar as the Defendant’s delivery date of each tax payment notice is earlier than the Plaintiff’s establishment date of right to collateral security, the Defendant has the right to preferentially pay dividends to the Plaintiff. The Plaintiff’s above assertion is without merit.

Then, we examine the plaintiff's assertion about the amount of dividends against the defendant's additional claim.

If national taxes are not paid by the due date, additional dues and aggravated additional dues provided for in Articles 21 and 22 of the National Tax Collection Act are a kind of incidental dues imposed in the meaning of interest for arrears on unpaid portion if national taxes are not paid by the due date, and if national taxes are not paid by the due date without the due date of payment by the due date, they are naturally generated under Articles 21 and 22 of the same Act, and the amount thereof shall be determined, and if collection procedures are to be commenced, the payment shall be urged by the

In full view of the overall purport of the arguments in each of the statements in No. 3-1, No. 2, No. 4-1, and No. 2, and No. 2 of September 22, 2000, the defendant may recognize the fact that the defendant sent a written notice demanding the payment of capital gains tax on February 0, 2004 and Nov. 0, 2005, to A for each additional charge of global income tax, and thus, the defendant's allegation that the distribution of the additional charge is unlawful is also without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Maximum displayed of judges

Kim Dong-dong

00 00

List

1. Suwon-si, Gyeonggi-do 000 - 00 to 529. 5m

2. Seven stories of the above ground subparagraph 1 Albameral slive roof, seven stories of neighborhood living facilities, and amusement facilities;

The 336m of square meters per floor;

2nd floor 360. 30m of square meters

365 square meters on 76 square meters;

4 352 square meters on 82 square meters;

The 52th 352th 82th m

6 352 square meters on 82 square meters;

89. 22m of square meters

434 45 m end. 45m