Plaintiff (Law Firm Ui-Myeon, Attorneys Lee this-soo, Counsel for plaintiff-appellant)

Gyeonggi-do (Attorney Jeon Sung-chul, Counsel for defendant-appellant)

October 6, 2010

Suwon District Court Decision 2009Da100438 Decided June 17, 2010

1. The part against the plaintiff corresponding to the money ordered to be paid under the judgment of the court of first instance shall be revoked.

The defendant shall pay to the plaintiff 14,709,450 won with 5% interest per annum from January 12, 201 to January 12, 201, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. Two minutes of the total costs of the lawsuit are assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

Of the judgment of the court of first instance, the part against the plaintiff falling under one of the following order for payment shall be revoked. The defendant shall pay to the plaintiff 31,604,780 won with 20% interest per annum from the next day of service of a copy of the complaint of this case to the day of full payment.

1. Basic facts

A. The Plaintiff agreed with Nonparty 1 and 2 to lend money to Nonparty 1 and 2, but, if Nonparty 1 and 2 fail to repay the money by the due date, they agreed to accord and substitute each of the real estate listed in the separate sheet Nos. 1 and 2 owned by Nonparty 2 and each of the real estate listed in the separate sheet Nos. 3, 4 and 5 owned by Nonparty 1 (hereinafter “each of the instant real estate”).

B. On September 17, 2007, the Plaintiff: (a) completed the registration of transfer right claim on each of the real estate listed in the separate sheet 1 and 2 (hereinafter “the provisional registration of this case”); (b) on September 17, 2007, No. 20802; (c) on September 14, 2007, No. 20803, Sept. 17, 2007; (d) on the registration of transfer right claim on each of the real estate listed in the separate sheet 1 and 40; (c) on the registration of transfer right claim on each of the above real estate stated in the separate sheet 1 and 50; (d) on the registration of transfer right claim on each of the above real estate stated in the separate sheet 50; (e) on the registration of transfer right claim on each of the above real estate stated in the separate sheet 1 and 450; and (e) on each of the above real estate registered under the separate list 1 and 507, No.81988.1.

C. On January 2, 2008, Nonparty 1 and 2 filed a lawsuit against the Plaintiff to the effect that the registration procedure for cancellation of the principal registration of this case concerning each real estate listed in the separate sheet shall be fulfilled. On May 13, 2008, the provisional registration of this case constitutes a provisional registration for security under the Provisional Registration Security Act, and on September 14, 2007, at the time of lending money on September 14, 2007, the total market value of each real estate of this case exceeds the above principal and interest of the loan, and without going through liquidation procedures, the provisional registration of this case was invalidated. The above judgment became final and conclusive at that time.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1-6, 2-2, Eul evidence 1-1-5, 2-2-1, 2-3, and the purport of the whole pleadings

2. The parties' assertion and judgment

A. The parties' assertion

The plaintiff asserts that the principal registration of this case is null and void because it does not go through liquidation procedures, and therefore, since the plaintiff's act of filing acquisition tax and registration tax is null and void as it has a significant and obvious defect, the defendant is liable to pay the acquisition tax, registration tax, and local education tax totaling 31,604,780 won and damages for delay.

On the other hand, the defendant asserts that since the main registration of this case was completed on December 18, 2007, the liability to pay acquisition tax arises, and since the defect in the grounds for registration of this case cannot be seen as apparent apparent, the plaintiff's act of filing acquisition tax cannot be deemed as void automatically, and as long as the main registration of this case was completed on the register of public books, the disposition of imposition of registration tax is legitimate.

B. Determination

(1) Determination as to the act of reporting acquisition tax

As a matter of principle, acquisition tax is a tax by means of tax return and payment, in principle, the tax liability of a taxpayer is determined specifically by the act of filing a tax base and amount of tax and the act of filing a return is the performance of the specific tax liability determined by the return, and the local government holds the tax amount paid based on the final tax claim. Thus, in order for the taxpayer to be held null and void as a matter of course, the defect must be significant and apparent. Here, as to whether the act of filing a return constitutes void as a matter of course due to a significant and apparent defect, the purpose, meaning, function, and legal remedy for the act of filing a report shall be considered as a basis for the act of filing a report, and at the same time, the specific circumstances leading to the act of filing a return shall be determined reasonably and reasonably (see Supreme Court Decisions 94Da31419, Feb. 28, 1995; 204Da64340, Jan. 13, 2006, etc.).

However, since a declaration of acquisition tax is conducted between a taxpayer and a tax authority, and the protection of a third party trusting the existence of acquisition tax is not particularly problematic, even if such declaration is null and void, it does not seriously undermine legal stability. On the other hand, even if there are serious defects in taxation requirements, etc., and the legal remedies are relatively insufficient compared with national taxes, and it is reasonable to exceptionally consider the stability of tax administration and the request for smooth operation thereof, if there are special circumstances to deem that such defect declaration is considerably unreasonable from the perspective of protecting rights and interests of a taxpayer, etc. (see Supreme Court Decision 2008Du11716, Feb. 12, 2009).

In light of the above legal principles, the Plaintiff’s return to the instant case, health class, and (1) the act of filing a report on the instant acquisition tax, etc. does not seriously undermine legal stability, while it seems that the Plaintiff’s rights and interests would be significantly harmed if it is not invalidated; (2) pursuant to Articles 3 and 4 of the Provisional Registration Security Act, where a creditor has already completed the registration of ownership transfer with respect to the secured real estate, he/she acquired the ownership of secured real estate when he/she paid liquidation money to an obligor, etc. after the liquidation period expires, and where he/she does not undergo such liquidation procedures, the registration is null and void (see Supreme Court Decision 2002Da4201, Dec. 10, 2002). (3) Therefore, considering that the Plaintiff cannot be deemed to have actually acquired the ownership of each of the instant real estate under the substance over form-over principle (see Supreme Court Decisions 64Nu84, Nov. 24, 196; 97Da8427, Nov. 11, 1997).

Therefore, since there is a special reason to view that the Plaintiff’s act of filing the above acquisition tax by grave defects is null and void as a matter of course, the Defendant is obligated to pay to the Plaintiff 14,709,450 won of unjust enrichment equivalent to acquisition tax and damages for delay at each rate of 5% per annum from January 12, 2010 to January 12, 201, the date following the delivery date of a copy of the complaint in this case, which is clear from January 12, 2010.

(2) Determination on the act of reporting the registration tax and local education tax

If matters concerning the acquisition, transfer, change or extinguishment of property rights or other rights are registered or recorded in the public register, registration tax is imposed on the person who is registered or recorded with the simple existence of a fact, which is subject to the taxation of such registration, and is not related to whether such registration or registration is void or substantial rights (see Supreme Court Decision 2001Du2720, Jun. 10, 2003).

In light of the above legal principles, as seen earlier, the principal registration of this case was completed with respect to each real estate of this case. The reason that the registration tax and local education tax paid by the Plaintiff is a tax imposed on the existence of ownership transfer registration, subject to taxation, and that the principal registration of this case is null and void, does not affect the validity of the disposition imposing the registration tax, and that the local education tax imposed on the basis of the registration tax in addition to the registration tax, is also the same.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the above scope of recognition, and the remaining claims are dismissed as without merit. Since the judgment of the court of first instance which has concluded a different conclusion is unfair, the part against the plaintiff who ordered the above payment among the judgment of the court of first instance shall be revoked, and the defendant shall be ordered to pay the above amount, and the remaining appeal of the plaintiff shall be dismissed as it is without merit.

[Attachment]

Judges Kim Sung-soo (Presiding Judge)