Whether the State may exercise the right of preferential collection under Article 35(1)3 of the former Framework Act on National Taxes where a public sale procedure following a default of national taxes was commenced prior to a decision of unconstitutionality as to Article 35(1)3 of the same Act, but the receipt of the public sale price was made after

Article 35 (1) 3 of the former Framework Act on National Taxes (amended by Act No. 4277 of Dec. 31, 1990) provides that "one year from Sep. 3, 1990" was unconstitutional by the Constitutional Court Order No. 89Hun-Ga95 of Sep. 3, 190, and the above decision of unconstitutionality pursuant to Article 47 (2) of the Constitutional Court Act, even if national taxes are national taxes, the secured claims of the mortgage created and registered before the due date can not be collected. In light of Article 77 (2) of the National Tax Collection Act, if the head of a tax office receives the proceeds of the sale of real estate for public sale, the specific time when the State exercises the right of preferential collection pursuant to the above Framework Act on National Taxes shall be deemed to be the time when receiving the proceeds of the sale of the property for public sale. Thus, even if the public sale procedure commenced before the above decision of unconstitutionality, if the payment was made after the decision of unconstitutionality, the State's Framework Act cannot exercise the right of preferential collection.

Article 35 (1) 3 of the former Framework Act on National Taxes (amended by Act No. 4277 of Dec. 31, 1990), Article 35 (1) 3 of the former Framework Act on National Taxes (amended by Act No. 427 of Sep. 3, 1990; 89Hun-Ga95, "one year from" shall be null and void); Article 77 (2) of the National Tax Collection Act; Article 47

Supreme Court Decision 91Da42524 delivered on January 17, 1992 (Gong1992, 867) 89Hun-Ga95 delivered on September 3, 1990 (Gong1637 delivered on September 32, 199)

Mutual Savings Bank, Inc.

Korea

Busan High Court Decision 91Na7279 delivered on November 28, 1991

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

Article 35 (1) 3 of the Framework Act on National Taxes (amended by Act No. 4277 of Dec. 31, 1990) provides that "one year from Sep. 3, 1990" was unconstitutional by the Constitutional Court Order No. 89Hun-Ga95 of Sep. 3, 190, and Article 47 (2) of the Constitutional Court Act provides that even if the above decision of unconstitutionality is a national tax, the secured claim of the mortgage established and registered before the due date shall not be collected prior to the due date. In light of Article 77 (2) of the National Tax Collection Act, if the head of a tax office receives the proceeds of the sale of real estate for public sale, he/she shall be deemed to have collected the delinquent amount from the delinquent taxpayer within the applicable limit. Thus, even if the public sale procedure was commenced prior to the above decision of unconstitutionality, if the payment of the proceeds of the public sale was made after the decision of unconstitutionality, the State shall not exercise the preferential collection right under the above provision of the Framework Act.

The judgment of the court below to the same purport is just and there is no violation of law as otherwise pointed out.

The assertion is nothing more than an error of the judgment of the court below in a different view.

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 Kim Yong-sung (Presiding Justice)