Although a provisional attachment registration has been made prior to the registration of security right in the public sale procedure for compulsory collection of tax claims, whether the measure that distributes the remaining amount of the sale only to the secured party pursuant to Article 81(1) of the National Tax Collection Act and Article 79 of the Enforcement Decree of the same Act is lawful (negative)

Where a provisional attachment registration is made prior to the registration of a security right in the public sale procedure for compulsory collection of a tax claim, and the distribution of dividends between the security holders cannot be allowed, unless prior to the provisional attachment registration is made, it shall not be allowed to distribute the amount to the security holders based on Article 81(1) of the National Tax Collection Act and Article 79 of the Enforcement Decree of the same Act. Such distribution measures are unlawful as they infringe on the legitimate interests of the security holders. In this case, if the scope of a provisional attachment claim is clearly confirmed by the name, etc. of a debt, the amount of the provisional attachment claim shall be equal to the amount of the claim, and if not, the deposit shall be made pursuant to Article

Article 81(1) of the National Tax Collection Act, Article 79 of the Enforcement Decree of the National Tax Collection Act, Article 581(1) of the Civil Procedure Act, Article 35(1)3 of the Framework Act on National Taxes

National Federation of Fisheries Cooperatives

Head of Sungbuk Tax Office

October 8, 1999

1. Of the instant lawsuit, the part of KRW 4,268,205, out of the amount of KRW 9,816,480 distributed to Kim Byung-he among the disposition of distribution of the proceeds of public auction on October 9, 1996 by the Defendant for the real estate listed in the separate sheet shall be revoked.

2. The part of the claim seeking allocation of KRW 4,268,205 against the Plaintiff shall be dismissed.

3. The costs of lawsuit shall be borne by the defendant.

The judgment of the court below and the above 4,268,205 won should be distributed to the plaintiff.

1. Determination on the revocation of the rejection disposition

(a) Whether there is a refusal disposition

The defendant asserts that the lawsuit of this case is unlawful since the plaintiff did not file a claim for distribution at the time of the distribution of the above public auction proceeds, and the defendant did not notify the plaintiff of the refusal of distribution, it cannot be deemed that there was any refusal disposition against the plaintiff.

In full view of the whole purport of the arguments in evidence Nos. 1 through 3, the plaintiff, on March 10, 1995, registered provisional seizure of the real estate of this case upon the decision of provisional seizure of the Seoul District Court No. 95Kadan1460 on June 22, 1995 to preserve the claim amount of 30,00,000 won on the above 2nd real estate listed in the separate list No. 1995 (hereinafter referred to as "the real estate of this case"). The defendant, on June 2, 1995, seized the real estate of this case to collect delinquent tax amount of 9,00 won on August 5, 1996, the plaintiff's request for distribution of 9,000 won was not made to the non-party No. 53,060,000 won on August 14, 1995, the plaintiff's request for distribution of the money of this case to the non-party No. 1,501,05,005.

B. Appropriateness of the rejection disposition

(1) Relevant statutes

Article 80 of the National Tax Collection Act (hereinafter referred to as the "Act") provides that money under each of the following subparagraphs shall be distributed pursuant to the provisions of Article 81; money under subparagraph 1; money received from the delinquent taxpayer or the third debtor due to the attachment of bonds, securities, intangible property rights, etc.; proceeds from the sale of attached property under subparagraph 3; and money received by the request for delivery under subparagraph 4; and Article 81(1) of the Act provides that the proceeds from the sale of attached property shall be distributed to the claims secured by national taxes, additional dues, delinquent taxes, local taxes, or public charges related to the attachment; (2) the national taxes, additional dues, delinquent taxes, local taxes, or public charges related to the attached property; and (3) the Enforcement Decree of the Act provides that the amount under Article 79 of the Act shall be distributed to the persons having chonsegwon, the pledgees, or the mortgagees who do not fall under Article 35(1)3 of the Act, who do not report the sale under Article 48(2) of the Act.

(2) Determination:

However, the compulsory collection of tax claims is a primary purpose in order to facilitate the prompt satisfaction of tax claims by an administrative agency based on the public nature of tax claims. However, the public sale procedure for compulsory collection of tax claims should not infringe on the rights of other creditors holding the object of public sale due to the above public sale procedure, so the director of the tax office who sells the property of the delinquent taxpayer shall not refund the amount remaining after appropriating it to the delinquent taxes out of the proceeds from the sale to the delinquent taxpayer, not refund the amount remaining after appropriating it to the delinquent taxpayer, but distribute it to the person who has a legitimate right to receive distribution of the proceeds from the sale.

However, in order to properly distribute the above proceeds of sale, accurate investigation process on the existence and amount of claims and their priority should be prior to the public auction procedure, and it is unreasonable in light of the current legal system to require accurate investigation process in the public auction procedure. Therefore, it is understood that the law provides for the duty of allocation to the secured right holder only for the secured right which can easily determine the existence and amount of claims and their validity.

As above, the above provision merely provides for the duty of allocation by the director of a tax office based on the premise that the secured party has the right to be properly apportioned, and cannot be seen as changing the effectiveness of the substantive right or the priority order of dividends pursuant to the above provision of the above provision. Thus, in the case where provisional seizure is registered prior to the registration of the security right, and where the secured party cannot oppose the person having the provisional seizure and the equality dividends, which are not prior to the prior distribution, should be made between both parties, the distribution to the secured party based on the above provision shall not be allowed, and such distribution measures are illegal as they infringe the legitimate interests of the person having the provisional seizure (in such case, where the scope of the provisional seizure claims is clearly confirmed by the name of the debt holder, etc., the amount of the provisional seizure claims shall be equally distributed in proportion to the amount of the claims, and if not, the deposit under Article 5

Therefore, in the instant case, it is unlawful for the Defendant to divide the remaining amount of KRW 9,816,480 to Kim Byung-kick, a mortgagee, regardless of the Plaintiff’s application for distribution, who is the right holder of the provisional attachment prior to the right to collateral security (in this case, the Plaintiff did not submit evidentiary materials which clearly prove his claim amount, such as the name of debt, so it is reasonable for the Defendant to deposit the above amount), and the instant disposition rejecting the claim for revocation of distribution of KRW 4,268,205 among them is also illegal.

2. Determination on a claim for the performance of monetary benefits

The plaintiff sought a performance judgment to distribute the amount of KRW 4,268,205 distributed to Kim Byung-he to the plaintiff, but the judgment ordering the administrative agency to perform its duties under the current Administrative Litigation Act is not allowed, and this part of the claim is unlawful.

3. Conclusion

Therefore, the part of the claim of this case concerning the revocation of rejection disposition is accepted for the reasons, and the part of the defendant's claim for the fulfillment of the obligation is illegal and dismissed as per Disposition.

Judges Lee Jong-young (Presiding Judge)