Korean Lease Credit Co., Ltd. (Law Firm Hanlul, Attorneys Long-si et al., Counsel for the plaintiff-appellant)

Yongsan-gu Seoul Metropolitan Government (Attorney Information Nature)

Seoul Special Metropolitan City (Law Firm Il, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

January 20, 2005

Cheongju District Court Decision 2003Kadan9360 Delivered on December 30, 2003

1. The part of the judgment of the court of first instance against the defendant in Seoul Special Metropolitan City shall be modified as follows:

With respect to the auction case of construction machinery (No. 16152), the amount of dividends against the defendant Seoul Special Metropolitan City among the dividend table prepared by the above court on April 22, 2003 shall be reduced to KRW 18,823,174,170,000, and the amount shall be corrected to distribute KRW 822,774 to the plaintiff.

2. The plaintiff's appeal against Yongsan-gu Seoul Metropolitan Government is dismissed.

3. The total cost of the lawsuit between the plaintiff and the defendant Seoul Special Metropolitan City shall be 20 minutes, which shall be borne by the plaintiff, the remainder by the defendant, and the cost of the appeal between the plaintiff and the defendant Yongsan-gu Seoul Special Metropolitan City shall be borne by the plaintiff.

1. Purport of claim

Of the distribution schedule prepared by the above court on April 22, 2003 with respect to the auction case of construction machinery (No. 16152), the amount of dividends of KRW 5,512,210 for the defendant Yongsan-gu Seoul Metropolitan Government and the amount of dividends of KRW 18,823,174 for the defendant Seoul Metropolitan Government shall be deleted, and the amount of dividends of KRW 24,335,384 for the plaintiff shall be corrected to be distributed to the plaintiff.

2. Purport of appeal

Of the judgment of the court of first instance, the part concerning the defendant Yongsan-gu Seoul Metropolitan Government shall be revoked. Of the dividend table prepared by the above court on April 22, 2003, the dividend amount of the defendant Yongsan-gu Seoul Metropolitan Government shall be deleted from KRW 5,512,210, among the dividend table prepared by the above court on April 22, 2003, and the said amount shall be corrected to distribute to the plaintiff.

Defendant Seoul Special Metropolitan City: The part on Defendant Seoul Special Metropolitan City among the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding thereto is dismissed.

1. Basic facts

The reasoning for this part of the court's reasoning is as follows: ① No. 3, No. 8, and No. 9 of the judgment of the court of first instance: "In order to secure the payment obligation of the rent, etc. for the peaceful construction, the establishment of the right to collateral security has been completed in the name of the Central Lease on January 18, 1993." "In order to secure the payment obligation of the rent, etc. for the peaceful construction, the establishment of the right to collateral security has been completed in the name of the Central Lease," with respect to the instant construction between the Central Lease and the amount of the right to collateral security contract with the maximum debt amount of KRW 850,00,00,00 for the instant construction, and the establishment of the right to collateral security has been completed in the name of the Central Lease on January 18, 1993; ② the amount of additional dues No. 14 "No. 2,970,740 won" and ③ the portion of additional taxes (including additional taxes) No. 27, 23750%, 1501,275%,2,47.

2. The parties' assertion and judgment

A. The parties' assertion

(1) Summary of the Plaintiff’s assertion

The instant astronomical term is deemed to be owned by the Plaintiff by importing central lease and transferring it to the Plaintiff. Since it was registered as the formal ownership of the instant astronomical term in accordance with the land entry contract with the YY, and thereafter, the title of ownership was registered in the name of the peace flag, the user of the facilities. Thus, the disposition imposing the property tax or acquisition tax on the instant astronomical term is null and void. Therefore, it is unreasonable that the Defendants received dividends as seen earlier in the above auction procedure on the instant astronomical term on the ground of null and void tax claims. Moreover, even if the above tax claim is not null and void, it is unreasonable that the Defendants received dividends from the said auction auction procedure on the ground of the tax claim on the Daal term, which is not the Plaintiff.

(2) Summary of the Defendants’ assertion

In the instant case, the Defendants owned a substitute machine at the time of seizure. Since the statutory due date of the property tax or acquisition tax on the substitute machine of the Defendants is earlier than the registration date of the establishment of the right to collateral security in the Plaintiff’s name as to the said astronomical machine, it is natural that the Defendants received dividends as seen earlier.

B. Determination

(1) As to the owner of the instant tent

Article 13-2(1) of the former Equipment Rental Business Act (amended by Act No. 5374, Aug. 28, 1997; Article 2 of the Addenda to the Specialized Credit Financial Business Act) provides that “Where a facility leasing company provides facilities leasing services, etc. in the name of a lessee (excluding those who acquire ownership of specified objects in deferred payment sales; hereinafter the same shall apply).” Article 13-3(1) of the same Act provides that “All kinds of duties concerning the maintenance and management of the goods shall be imposed on the owner of the specified goods in accordance with other Acts and subordinate statutes and shall be performed by the lessee as the party concerned.” Article 13-4 of the same Act provides that “Where a facility leasing company provides facilities leasing services to another person by intention or negligence during the operation of construction machinery or vehicles under the name of a lessee, such equipment leasing company shall be deemed to be subject to the registration of new facilities leasing company under the name of the owner or user, and that the latter shall not be deemed to have ownership of the said goods under the premise that the provisions of Article 3 of the Automobile Accident Compensation Business Act apply to the same.”

However, in light of the above legal principles, it cannot be extended without limitation until a lessee enters a third party with the consent of a facility leasing company, and it shall be deemed that the third party externally belongs to the company and the third party is entrusted with the operation management of the mid-term period by the entrusted management contract with the company (see Supreme Court Decision 88Meu17273, Jul. 25, 1989). The purport of the above legal principles is that a lessee shall not be deemed to belong to the moving company externally, and the moving-in company shall be deemed to belong to the moving company externally, and the situation of the moving-in and the intention of the parties at the time of entering. As seen earlier, it shall be reasonably interpreted to determine who is the external owner of the above air at the time of the moving-in company. In light of the above legal principles, it shall be deemed that the central lessee entered into the contract with respect to the above sun-term air, not the peace building, which is the lessee, but the party to the contract, and it shall be deemed to be the new registration of the moving-in company.

(2) As to the effect of tax imposition

As seen above, as at the time when the Defendants imposed property tax or acquisition tax and as at the time of completing the registration of seizure according to the delinquency in payment of market price, the owner of the instant astronomical air shall be deemed to be a large-scale owner. Therefore, the Plaintiff’s assertion based on the premise that the said astronomical air is owned by the Plaintiff cannot

Therefore, even if the owner of the air of this case is a substitute owner, Article 110 of the former Local Tax Act (amended by Act No. 4561 of Jun. 11, 1993) at the time the above acquisition tax is imposed (amended by Act No. 4561 of Jun. 1, 1993) stipulates that acquisition tax shall be exempted on an example, not limited to cases of non-taxation under the title "non-taxation on the acquisition of tangible ownership". In light of the amendment progress of the relevant Acts, the Plaintiff asserts that acquisition of ownership in the above 1000 air constitutes the formal acquisition of ownership adjustment, and thus, acquisition of ownership in the above 2000 air constitutes non-taxation. In light of the above provision, Article 110 of the former Local Tax Act merely provides for the acquisition of real estate by deeming it as a formal acquisition of ownership, and that acquisition of real estate is not subject to non-taxation due to the sale and purchase of real estate by the purchaser and new sale of real estate in accordance with the above provisions of the Local Tax Act.

(3) As to the dividend order

Article 31(1) of the former Local Tax Act (amended by Act No. 4794, Dec. 2, 1994; hereinafter referred to as the “former Local Tax Act”) provides that “The impositions of local governments shall be collected in preference to public charges (referring to those which may be collected in the same manner as delinquent taxes are collected) and other claims, except as otherwise provided for by taxpayers or persons liable for extraordinary collection on the whole property: Provided, That the foregoing shall not apply to other impositions of local governments and national taxes and additional dues thereof (hereinafter referred to as “national taxes”) and the provisions of paragraph (1) shall not apply to those which fall under any of the following subparagraphs” under subparagraph 3, and the above provision provides that “the period for taxation of local taxes or dividends arising from the sale of property which is the object of the right to lease on a deposit basis, pledge, or mortgage.” Thus, the above provision of the former Local Tax Act provides that the period for taxation and additional dues shall be determined at the same time as 10 days prior to the date on which the tax base and additional dues are reported and collected.”

Then, according to the plaintiff's ownership of 30 won and 80 won and 40% of the total amount of 40 won and 40% of the total amount of 80 won and 40% of the total amount of 80 won and 40% of the total amount of 40 won and 40% of the total amount of 80 won and 40% of the amount of 80 won and 40% of the amount of 200 won and 40% of the total amount of 80 won and 40% of the amount of 40% of the total amount of 40 won and 40% of the amount of 80 won and 40% of the amount of 40% of the amount of 200 won and 9% of the amount of 20% of the total amount of 10,000 won and 40% of the amount of 200 won and 9% of the amount of 20% of the above amount of additional taxes.

3. Conclusion

Therefore, the plaintiff's claim against the defendant Seoul Metropolitan Government shall be accepted within the extent of the above recognition, and the remaining claims shall be dismissed as without merit. The defendant Yongsan-gu Seoul Metropolitan Government's claim against the defendant is dismissed as there is no ground. Since the part against the defendant in the judgment of the court of first instance as to the defendant in part of the above defendant's appeal is unfair, the part against the above defendant in the judgment of first instance shall be partially accepted, and the plaintiff's appeal against the defendant in Yongsan-gu Seoul Metropolitan Government shall be dismissed as it is without merit.

[Attachment List omitted]

Judges Park Jong-young (Presiding Judge)