Implementation of procedures for cancellation of registration of seizure

The attachment disposition by the Defendants shall be null and void in its entirety because the defect is obvious, and accordingly, the registration of the attachment of this case also becomes effective, so the Defendants are liable to implement the cancellation registration procedure for the registration of the attachment of this case to the Plaintiff.

Article 24 of the National Tax Collection Act

2014 Ghana 27168 Implementation of procedures for cancellation of real estate attachment registration

○○ Kindergartens, an incorporated foundation

Republic of Korea 1

July 16, 2015

August 6, 2015

1. As to the real estate listed in the separate sheet to the Plaintiff:

A. Defendant Busan Metropolitan City’s registration No. 00 of Busan District Court’s registration and receipt No. 00 of Busan District Court’s registration, 000 of receipt on October 0, 1990, and 000 of receipt on October 0, 1990;

B. The defendant Republic of Korea was registered in Busan District Court and the attachment registration No. 0000 received on October 0, 2000, and No. 0000 received on October 0, 200, respectively.

Each cancellation registration procedure shall be implemented.

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

The same shall apply to the order.

1. Basic facts

A. The Plaintiff is an incorporated foundation established around 1900 to conduct early childhood education facilities and projects incidental thereto.

B. On October 0, 100, the Plaintiff opened and operated ○○ Kindergarten (hereinafter “instant kindergarten”) in the attached list with the authorization from the head of the Office of Education of the Busan Metropolitan City, ○○○ Office of Education (hereinafter “the instant real estate”) and operated it until October 0, 100. The Plaintiff’s suspension from October 0, 00 to October 0, 100 on the ground of remuneration due to the deterioration of the kindergarten building caused by the deterioration of the kindergarten building, etc. After which the period of suspension of operation has been extended on three occasions on the ground of noise pollution caused by redevelopment construction, etc., the Plaintiff is expected to be closed until October 0, 100. The Plaintiff’s seizure of the instant real estate was conducted three times as well as the registration of the instant real estate by the Busan District Court (hereinafter “○○○ Office of Education”) for reasons of delinquency in payment of the Plaintiff’s indemnity. Accordingly, the attachment registration of the instant real estate was conducted by the Plaintiff’s ○○○ Office of Education (hereinafter “the attachment registration of the instant real estate”).

2. The plaintiff's assertion

The instant real estate is a building of the instant kindergarten directly used for the education of private schools, where sale or provision of security is prohibited pursuant to Article 28(2) of the Private School Act and Article 12(1) of the Enforcement Decree of the same Act, and thus cannot be subject to the disposition on default under the National Tax Collection Act. Therefore, the attachment disposition on the instant real estate by Defendant ○○-gu and the Republic of Korea is null and void because its defect is obvious, and accordingly, the attachment registration of this case must

3. Determination

A. Relevant legal principles

The seizure under the National Tax Collection Act is an act of compelling a delinquent taxpayer to prohibit the legal and de facto disposal of the delinquent taxpayer's specific property and to keep it in the state of realization for the purpose of the forced realization of the national tax claim. Thus, the property subject to seizure should not be the property that belongs to the delinquent taxpayer, but should not be the property subject to seizure, but should be the property that has monetary value, and is transferable and feasible.

However, Article 28 (2) of the Private School Act and Article 12 (1) of the Enforcement Decree of the Private School Act provide that property of a school juristic person, such as a school site, which is directly used for the education of a private school established and operated by the school juristic person concerned, shall not be sold or offered as security. In light of the purpose of the same Act, the purpose of this Act is to prevent the disposal of school property indispensable for the education of a private school, thereby endangering the existence and the body of the school. Thus, the prohibition of re-sale, etc. is not limited to the fact that it cannot be the object of a sales contract, but the possibility of transfer of ownership due to sale is all excluded, and thus, seizure under the National Tax Collection Act is not allowed (see Supreme Court Decision 96Nu4947, Nov. 15, 1996).

On the other hand, whether an administrative disposition is illegal shall be determined on the basis of the law and factual state at the time of the administrative disposition, and it shall not be affected by the amendment and repeal of the law or changes in the actual state.

B. Determination

In light of the following facts and circumstances, each of the evidence mentioned above, Gap evidence Nos. 12 through 19, Eul evidence Nos. 12 through 11 (including branch numbers), and Eul evidence Nos. 1 through 11 (including branch numbers), and the overall purport of the pleadings, the seizure disposition by the defendants shall be deemed null and void because the defects are so serious as to be obvious, and the seizure registration of this case shall also be null and void. Accordingly, the defendants are liable to implement the cancellation registration procedure of the seizure registration of this case to the plaintiff.

1) The instant real estate consists of several buildings, and most of the other buildings except the two buildings among which were used as classrooms, teaching rooms, lecture rooms, lecture halls, restaurants, warehouses, toilets, etc. from the time the Plaintiff operated the instant kindergarten to the time when it was operated by the Plaintiff.

2) As seen earlier, the illegality of an administrative disposition should be based on the law and factual status at the time of the administrative disposition, and the three attachment disposition issued by Defendant ○○○○, which was from 190 to 1990, and the attachment disposition issued by Defendant 200, which was an endowment used directly for the education of the instant kindergarten at the time when the instant kindergarten is operated normally. As such, the above attachment disposition is a disposition contrary to Article 28(2) of the Private School Act, which is a mandatory provision, and its defect is serious and clear and has no effect.

3) Meanwhile, although the attachment disposition issued on October 0, 000 by the Defendant Republic of Korea issued on the ground that the instant kindergarten was being closed, the attachment disposition was taken only 14 months after the instant kindergarten was closed, in light of the fact that the cause of the closure was remuneration due to the deterioration of the kindergarten building, and that the Plaintiff appears to have actually repaired the instant kindergarten building, the instant real estate is still used directly for the instant kindergarten education, and the attachment disposition against this is invalid contrary to Article 28(2) of the Private School Act.

4) Although it is recognized that two buildings among the real estate in this case were used for residential purpose, most of the real estate in this case were used directly for the education of the kindergarten, as recognized earlier, and the attachment disposition on the real estate in this case is the real estate registered as a single real estate and its object is the entire real estate in this case, the attachment disposition in this case has no effect, and the attachment disposition on the residential building in this case cannot be said to maintain its validity.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted in its entirety on the grounds of its reasoning, and it is so decided as per Disposition.