(a) Validity of a seizure due to registration for the issuance of a request for auction, and the right of a third party who has acquired the ownership by a disposal of the target real estate during the auction procedure after seizure;

(b) Where the owner of the auction real estate has donated the real estate to a third party during the auction procedure after seizure, and loses its ownership, whether the capital gains tax may be imposed on the original owner due to the auction (negative)

A. The effect of seizure upon the commencement of a request for auction is only to limit the disposal of the real estate against the owner of the real estate in relation to the execution creditor, and the disposal of the real estate is not prohibited even in relation to other third parties, so even though the auction procedure is in progress, the owner of the real estate can dispose of the real estate effectively until the successful bidder acquires the ownership of the real estate for the purpose of auction in full, and the person who acquired the ownership of the real estate due to such disposal can be an interested party in the auction procedure by proving that the ownership of the real estate was acquired later in the execution court and then can be an interested party in the auction

B. The transfer income tax is subject to the transfer of assets stipulated as the object of transfer under the Income Tax Act. Thus, if the owner of the auction real estate donates the real estate to a third party during the auction procedure after the seizure, and if the profits accrued from the auction thereafter belong to the donee, the transfer income tax is not imposed on the original owner in accordance with the provisions of the Inheritance Tax Act on the donation act (or can it be imposed on the portion to be borne by him in accordance with the provisions of Article 4(3) of the Income Tax Act in case of an onerous donation (or can it be possible to impose the transfer income tax on the portion to be borne by him in accordance with the provisions of Article 4(3) of the Income Tax Act in case of an onerous donation). This does not change the conclusion that the third purchaser of the real estate cannot oppose the acquisition of the ownership by the successful bidder, and therefore, the transfer registration of ownership in the name of the third acquisitor is cancelled along with the ownership of the successful bidder

(a) Article 728 of the Civil Procedure Act (Articles 603 and 609 of the Act);

Plaintiff

Head of Seocho Tax Office

Seoul High Court Decision 90Gu12627 delivered on May 15, 1991

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the first ground for appeal.

(1) According to the reasoning of the judgment below, on April 11, 1984, the plaintiff acquired the above real estate from the owner of Jongno-gu Seoul ( Address 1, 2 omitted) and its ground building 148.76m2 as collateral for debt against the Seoul Trust Co., Ltd., Seoul Trust Co., Ltd., which is the plaintiff, and the creditor of the above real estate completed the registration of the establishment of a neighboring mortgage with the Seoul Trust Bank, with the maximum debt amount of KRW 405,000,00, and thereafter the procedure of voluntary auction of the Seoul Trust Bank was conducted on February 27, 1987, and the Seoul Trust Bank's acquisition of the above real estate was permitted in the future of the Seoul Trust Bank, and paid the auction price in full on April 2, 1987. Meanwhile, the court below rejected the plaintiff's claim that the above real estate acquired the above real estate from the plaintiff on March 12, 196, on the premise that the transfer of ownership of the above real estate belongs to the plaintiff's auction property as the above auction auction auction auction.

(2) However, the effect of attachment due to the issuance of a request for auction registration is merely to restrict the disposal of the real estate against the owner of the real estate in relation to the execution creditor, and it does not prohibit the disposal of the real estate even in relation to other third parties. Thus, even in the auction procedure, the owner of the real estate can dispose the real estate effectively until the successful bidder acquired the ownership of the real estate in the purpose of auction in full, and the person who acquired the ownership of the real estate due to such disposal can be an interested party in the auction procedure by proving that the ownership of the real estate was acquired thereafter to the execution court, and in the case of surplus after the distribution,

In addition, since transfer income tax is subject to taxation of income accrued from the transfer of assets which are subject to transfer under the Income Tax Act (see Article 23 (1) of the Income Tax Act), if the real estate owner donates the target real estate to a third party and thereafter gains accrued from auction belong to the donee during the auction procedure as above, the original owner can be held liable for joint payment of gift tax in accordance with the provisions of the Inheritance Tax Act regarding the above act of donation (or, in case of a so-called onerous onerous donation, it may be possible to impose transfer income tax on the portion to be borne pursuant to the provisions of Article 4 (3) of the Income Tax Act in accordance with the case of a so-called onerous donation), the transfer income tax may not be imposed on the transfer income accruing from such auction (it may be possible to impose transfer income tax on the portion to be borne by the third party in accordance with the provisions of Article 4 (3) of the Income Tax Act in the case of a so-called onerous donation). Accordingly, the conclusion does not vary because

Ultimately, the court below held that the disposition of this case's transfer income tax against the plaintiff was legitimate on the ground that the transfer income from auction of the real estate held in the judgment is still attributed to the plaintiff, notwithstanding the plaintiff's donation to the above non-party company, the court below erred in the misapprehension of legal principles as to the effect of seizure of real estate due to registration of commencement of auction application and the subject of attribution of transfer income, which affected

(3) Therefore, without examining the remaining grounds of appeal, we reverse and remand the judgment below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-sung (Presiding Justice)