[1] In a case where the land subject to a disposition on default is expropriated by a disposition on default, the validity of the seizure, and in a case where the disposition on default, which made the seizure of the land prior to the expropriation, is again made a seizure based on the disposition on default, whether the priority of the disposition on default on the land prior to the expropriation is maintained in the distribution procedure for the claim on indemnity (negative

[2] The purport of the so-called principle of prior attachment in tax collection, and whether the principle of prior attachment applies to cases where taxes are collected through the compulsory execution procedure under the former Civil Procedure Act (affirmative)

[1] According to Article 67 (1) of the former Land Expropriation Act (amended by Act No. 6656 of Feb. 4, 2002), public project operators shall acquire ownership on the date of expropriation of the land, and other rights to the land are extinguished. Therefore, even if seizure of the land to be expropriated is executed by the disposition on default, the seizure of the land becomes null and void due to the original acquisition of the ownership by the public project operators due to the expropriation of the land, and it cannot be deemed that the seizure of the land is naturally transferred to the right to claim the compensation for expropriation, and its effect is null and void. Thus, the disposition on default against the land before expropriation is made by the public project operator again by the disposition on default of the land before expropriation in accordance with the principle of subrogation, the priority of the disposition on default against the land before expropriation in accordance with the principle of subrogation cannot be deemed to be maintained in the distribution procedure of the compensation claim

[2] The so-called principle of prior attachment adopted under Article 36(1) of the Framework Act on National Taxes and Article 34(1) of the Local Tax Act intends to give priority to the collection authority who has paid a tax obligor's asset status than other tax creditors and has the ability to collect taxes. In light of the legislative intent of the prior attachment principle and the legislative purport of such prior attachment principle, in cases where the attached property is a monetary claim, it is unreasonable to vary in the amount of tax collection depending on whether the third obligor pays the money to the collection authority at his/her option and the deposit for execution to the execution court, the principle of prior attachment should also apply not only to cases where taxes are collected through the procedure of disposition for arrears but also to cases where taxes are collected through the compulsory execution procedure under the former Civil Procedure Act (amended by Act No. 6626, Jan. 26, 2002).

[1] Article 67 (1) of the former Land Expropriation Act (amended by Act No. 6656 of Feb. 4, 2002) (see current Article 45 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor), Article 342 of the Civil Act / [2] Article 36 (1) of the Framework Act on National Taxes, Article 34 (1) of

[1] Supreme Court Decision 98Da62961 delivered on July 4, 2000 (Gong2000Ha, 1832)

Mapo-gu Seoul Metropolitan Government (Law Firm Mau, Attorneys Kim Jong-ju, Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2001Na29461 delivered on November 28, 2001

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. Regarding the validity of the disposition on default and the legal principles of subrogation

According to Article 67 (1) of the former Land Expropriation Act (amended by Act No. 6656 of Feb. 4, 2002; hereinafter referred to as the "former Land Expropriation Act"), public project operators shall acquire ownership on the date of expropriation of the land and terminate other rights to the land. As a result, seizure of the land to be expropriated by the public project operators upon the original acquisition of the ownership due to the expropriation of the land, even if the seizure of the land is executed by the disposition on default, the seizure of the land shall become null and void, and it shall not be deemed that the seizure of the land shall become null and void as a matter of course before the right to claim the compensation for expropriation (see Supreme Court Decision 98Da62961, Jul. 4, 200). Accordingly, the seizure of the land before expropriation by the public project operators under the disposition on default under the disposition on default shall not be deemed to maintain the order of priority in the previous distribution procedure for the compensation claim.

In the same purport, the court below rejected the defendant's assertion that the defendant's participation in the attachment of the real estate of this case and the plaintiff's attachment were all extinguished due to the expropriation of the real estate of this case, and that the defendant's participation in the attachment of the real estate of this case shall be transferred to the right to claim the expropriation compensation under Articles 342 and 370 of the Civil Act and Article 69 of the former Land Expropriation Act, which provide for subrogation of real right such as mortgage, and that the effect of the right to claim the expropriation compensation shall be maintained. In light of the relevant legal principles and records, the above judgment of the court below is just and it is not erroneous in the misapprehension of legal principles as to the effect of attachment

2. As to the application of seizure priority principle in the compulsory execution procedure

Article 36(1) of the Framework Act on National Taxes provides that "if property of a taxpayer is seized by a disposition on default of national taxes, if other national taxes, additional dues, disposition fees for arrears, or local taxes are requested to be issued, the national taxes, additional dues, and disposition fees for arrears related to the attachment shall be collected in preference to other national taxes, additional dues, disposition fees for arrears, and local taxes." Article 34(1) of the Local Tax Act provides that "if the property of a taxpayer or a person liable for extraordinary collection is seized by a disposition on default of national taxes, the impositions of other local governments related to the attachment shall be collected in preference to the impositions or national taxes of other local governments related to the request for delivery, if any." The so-called attachment attachment priority principle is adopted for tax collection by taking into account the legislative purport of the attachment priority principle, and the legislative purpose of the attachment priority principle, if the attached property is a monetary claim, the amount of taxes to be collected by the third-party debtor to the execution office at his/her option, as well as the amount of taxes to be collected by the former Civil Procedure Act.

The judgment of the court below is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the priority of taxation related to the seizure, as otherwise alleged in the ground of appeal.

3. Conclusion

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 on the bench.

Justices Shin Shin-chul (Presiding Justice)