Whether the tax priority principle is applied to the procedure of collecting development charges (negative)

Article 19 (1) of the Restitution of Development Gains Act provides that "If a person liable for payment of development charges fails to pay the development charges and additional dues in full by the designated deadline in receipt of a demand notice, the Minister of Construction and Transportation may collect them in the same manner as delinquent national taxes are collected," it shall be limited to the so-called self-performance right that the National Tax Collection Act may apply mutatis mutandis to the provisions on delinquent taxes in the National Tax Collection Act, and the provisions of Article 35 (1) of the Framework Act on National Taxes that the national

Article 19 (1) of the Restitution of Development Gains Act and Article 35 (1) of the Framework Act on National Taxes

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant) and 1 other (Law No. 4548, Mar. 9, 1990)

Plaintiff 1 and four others (Attorney Cha Jae-won, Counsel for the plaintiff-appellant)

[Defendant-Appellee] Plaintiff 1 and 1 other (Attorney Kim Jong-soo et al., Counsel for defendant

Daegu High Court Decision 95Na6107 delivered on May 15, 1996

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

The defendant's attorney's grounds of appeal are examined.

Article 19 (1) of the Restitution of Development Gains Act (hereinafter referred to as the "Act") provides that "If a person liable to pay the development charges fails to fully pay the development charges, additional dues, etc. by the designated deadline after receiving a demand notice, the Minister of Construction and Transportation may collect them in the same manner as delinquent national taxes are collected," the Minister of Construction and Transportation has the so-called self-performance right (see Supreme Court Decision 93Nu104 delivered on September 28, 1993) that a compulsory collection of the development charges may be made by applying mutatis mutandis the provisions on delinquent national taxes in the National Tax Collection Act (see Supreme Court Decision 93Nu104 delivered on September 28, 1993). The provision of Article 35 (1) of the Framework Act on National Taxes that takes priority over mortgage-backed claims shall not be deemed to apply mutatis mutandis, and the provisions of Article 3 (2) of the Act, Article 5 (1) 3 of the Land Excess Acquisition Tax Act, etc. shall not be deemed to include the development charges imposed under Article 3 (1) of the Framework Act.

The decision of the court below to the same purport is just, and there is no error of law by misunderstanding the legal principles as to the legal nature of development charges, Article 35 (1) of the Framework Act on National Taxes, such as the theory of lawsuit, and where the development gains from land are collected as development charges pursuant to Article 3 (1) of the Act, it shall not be applied to the principle of national tax priority, and where the land excess gains are collected pursuant to Article 3 (2) of the Act, it shall not be deemed that both are treated differently, such as the application of the principle of national tax priority. All arguments are without merit.

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.

Justices Ahn Yong-sik (Presiding Justice)