Jeonju District Court-2013-Gohap-8211 (2015.06)

Where the basis of a request for provisional disposition registration and transfer registration is the same, seizure and priority relationship

Where the basis of a claim is the same as the provisional disposition prior to seizure, the date of the security transfer contract and the statutory date of the tax claim shall be compared.

Article 35 of the Framework Act on National Taxes

Gwangju High Court-2015-Na-100452 (Law No. 19, 2016)

It can be recognized that the transfer security agreement was concluded, but special circumstances are established in accordance with the above legal principles.

Unless otherwise, the Plaintiff completed the registration of transfer by reason of the transfer security agreement of this case on August 201.

26. It can be said that the right to transfer a security for the instant real estate has been acquired.

The plaintiff has entered into a transfer security contract before the registration of preservation of ownership has been completed.

Even if it is alleged to the effect that the right to transfer is acquired, but in light of the fact that the acquisition, loss, and transfer of real rights by a juristic act on real estate pursuant to Article 186 of the Civil Act takes effect, even if the registration of ownership preservation before the completion of the registration of ownership transfer, the only claim for the establishment of the right to transfer to the debtor, who is the other party, may be deemed to have occurred when the right to transfer to the real estate in this case was entered into only when the right to transfer to the other party was

B. Determination as to whether the Plaintiff acquired a security interest in the order of provisional disposition of this case

There is no need to strictly match the right to be preserved in preservative measure with the right in the merits.

As long as the identity of the basis of the claim is recognized, the effect of the preservation by the preservative measure shall be effective on the merits lawsuit.

as such, in the case of a dispute over the same living facts or the same economic interests,

The modification of the purport and cause of the claim, which is merely different from the method of resolution, is the basis of the claim.

It does not bring about a warning (see Supreme Court Decision 2006Da35223, Nov. 24, 2006).

In light of the above legal principles, the order of provisional disposition of this case, such as the plaintiff's assertion of this case

In order to acquire the right to collateral security, the right to be preserved within the merits of the provisional disposition registration of this case

A claim for ownership transfer registration based on the instant security agreement, which is the subject matter of the lawsuit cited, and a basic Dong of the claim.

The gender should be recognized.

The right to be preserved for the provisional disposition registration of this case was entered into with the twoA on August 21, 2006 by the plaintiff.

the fact that the registration of creation of additional mortgage under the Factory and Mining Foundation Mortgage Act was filed on real property;

The ground for the registration of ownership of this case is that the Plaintiff entered into with the twoA on December 14, 2006.

Facts that are the agreement shall not be disputed between the parties, or all pleadings shall be made in the evidence Nos. 3 and 5, respectively.

In full view of its purport, the wife of this case, as seen in the above basic facts.

security agreement of this case, which is the cause of the ownership registration of this case, and the time and time of such agreement.

The basis is that the content of a legal act differs from the maximum amount of security or the maximum amount of debt;

In full view of the following circumstances, where there is no dispute between the parties or where Gap evidence Nos. 1, 3, 5, and 1 are recognized by comprehensively considering the purport of the entire pleadings, the basic identity of the claim is recognized as being achieved in a series of processes for the same economic interest. Therefore, the effect of preservation by provisional disposition of this case shall affect the plaintiff's transfer security right. Therefore, the plaintiff may receive a dividend in accordance with the order of provisional disposition of this case, unless there are special circumstances.

(1) The Factory and Mining Foundation Mortgage Act which constitutes the cause of the right to preserve the provisional disposition of this case.

The agreement on the creation of additional mortgage by way of this case and the agreement on the transfer of security, which is the cause of the registration of this case

For the purpose of securing the loan claims of this case against two AA and for this purpose

The benefit of acquiring the instant real property is also the same in that it is a security for the instant real property.

It is said that only a different method has been concluded for economic interest.

(2) Registration of the disposition prohibited from disposal has already been made to preserve a claim for registration of creation of mortgage.

The registration of transfer of ownership or restrictions on disposal of real estate shall be made after the registration of transfer of ownership or restrictions on disposal, and subsequent establishment, etc. to realize the right to be preserved by the creditor of provisional disposition in favor of the principal lawsuit

(2) If such transfer or disposal is made after the registration of the provisional disposition,

Registration itself does not interfere with the acquisition of mortgage by the creditor of the provisional disposition, and such registration shall not be made.

In order to the extent that it is inconsistent with the acquisition of mortgage by the creditor of provisional disposition, after the registration of provisional disposition

Any limitation on the acquisition or disposal of registered rights can not be set up against the provisional disposition creditor(s).

In light of the above legal principles, if the right to preserve the order based on the provisional disposition of this case is the right to claim the establishment of a collateral security, the registration of seizure by the defendant does not need to be cancelled despite the establishment of the collateral security. However, if the transfer security right is transferred, there is a difference in that the registration of seizure by the defendant after the registration of the provisional disposition of this case should be cancelled pursuant to Article 94(1) of the Registration of Real Estate Act, but in both cases, there is no difference in that the plaintiff receives dividends from the proceeds of sale of the real estate of this case prior to the defendant. From the perspective of the plaintiff's economic interest, it is important to determine whether the plaintiff receives dividends prior to the sale of the real estate of this case, and thus, there is no significant difference in the cancellation of the registration of seizure by the defendant.

(3) The time when the transfer of security right is acquired shall be the time when the transfer of ownership is completed.

If the registration of provisional disposition on the transfer security right has been completed earlier, the order of priority of dividend shall be the provisional disposition, etc.

The above conclusion is based on the flag and the Supreme Court's decision is related to the time of acquisition of security right.

It cannot be viewed contradictory to the position.

④ Statement that the provisional disposition of this case was based on the ownership transfer registration of this case

under section A(3) of this title. However, the whole of the arguments shall be made on the basis of the above facts and the statement of evidence A(3)

In full view of the purport of the ownership transfer registration of this case, the principal lawsuit must be accompanied by documents.

In the judgment of the court, the plaintiff has secured the factory and mining foundation in order to secure the loan claim of this case.

The provisional disposition of this case is made with the right to claim the execution of the establishment registration of additional facilities under the Act as the preserved right.

The reason why the transfer transfer agreement is concluded with twoA upon application for a decision of acceptance is stated.

According to the facts as seen above and the circumstances examined earlier, the transfer registration of ownership in this case

The basis of the provisional disposition and the claim is the same security agreement.

When the registrar completes the registration of transfer of ownership in this case, he/she shall enter that the disposition is due.

Even if omitted, the plaintiff still has the right as a mortgagee based on the provisional disposition of this case.

It can be said that there is interest (see Supreme Court Decision 2012Da203843, Apr. 26, 2013).

(5) If a registration for realizing the right to be preserved on a provisional disposition is completed, the provisional disposition shall lose its effect as it attains the objective, and it is not necessary to keep the provisional disposition registration.

(2) The registration of establishment of a mortgage for realizing the preserved right after the registration of the temporary injunction

If the registration of provisional disposition is cancelled after the cancellation, the acquisition of the right still registered after the registration of provisional disposition is made.

B. The restriction on disposition cannot be set up against the acquisition of mortgage by the creditor of provisional disposition (see Supreme Court Decision 2015Da202360, Jul. 9, 2015). In light of the foregoing legal doctrine, even if the provisional disposition registration of this case was cancelled after the registration of provisional disposition of this case, as long as the registration of provisional disposition of this case was completed based on the registration of provisional disposition of the Health Unit, the basis of the right to be preserved and the claim for ownership transfer based on the same security agreement, the registration of provisional disposition of this case cannot still set up against the acquisition of the

C. Judgment on the defendant's assertion

1) The Plaintiff’s right to security for transfer is a repayment of secured debt or an open contract with BB Guarantee Fund.

Judgment on the assertion that the extinction occurred

As seen earlier, the secured claim of the Plaintiff’s security right is the instant loan claim.

The plaintiff can be said to be the plaintiff, taking account of the overall purport of the arguments in the statements in Eul Nos. 7, 8, and 9.

From the BB Guarantee Fund around March 6, 2009, the payment of KRW 1,442,619,87, out of the instant loans by subrogation shall be made by subrogation.

on August 21, 2006, concerning the existing collateral of this case by the Plaintiff to the BB Guarantee Fund on the same day.

It can be acknowledged that the amount of KRW 100,000 out of the right to collateral security established by the Plaintiff has been transferred to BB Guarantee Fund. However, each of the following circumstances, which are acknowledged as being comprehensively based on the above facts and evidence Nos. 3, Eul evidence Nos. 7, 8, and 9, i.e., the loan No. 1,832,00,000 won, i.e., the loan No. 1,832,00,000 won is excluded from the above amount of subrogated payment, but a considerable amount of money remains (the dividend table of this case contains the plaintiff's claim No. 370,627,673, interest No. 805,07,071). The plaintiff's assertion that the remainder of the loan No. 370,627,000 won and the right to collateral security had not been transferred to BB Guarantee Fund, and there is no evidence to acknowledge that the remainder of the loan No. 2A still remains due to the remainder of the contract of the loan No.

2) Determination as to the assertion that the Defendant, as the holder of the right to deliver, the dividend priority prior to the statutory due date is priority

We examine whether the statutory deadline for the Defendant’s taxation claim is prior to the date of the provisional disposition, etc. of this case.

In this paper, I will examine.

Article 35(1)3 of the Framework Act on National Taxes provides that the statutory deadline for the taxation claims at issue in this case

subsection (b)(1) of this section on the premise that the notice of tax payment for the pertinent tax claim is issued

That is, the right to lease on a deposit basis or the right to pledge, which is the other party disputing the priority order with the defendant.

In the case of a mortgage, it shall be reasonable in the case of a mortgage, but the plaintiff shall transfer as seen earlier.

Since it is a secured party, it is a standard for determining priority in relation to the Plaintiff’s transfer security interest.

The statutory deadline under Article 13 (2) of the National Tax Collection Act pursuant to Article 35 (1) 3 (f) of the Framework Act on National Taxes.

It is the date of sending a notice of payment. However, prior to the date of the provisional disposition of this case by the defendant

There is no evidence to prove that the Plaintiff sent a notice of payment pursuant to Article 13 of the National Tax Collection Act.

Therefore, the plaintiff's right to transfer security shall take precedence over the defendant's taxation claim.

D. Sub-determination

Therefore, the plaintiff has the right to receive dividends in preference to the defendant based on the transfer security right.

Therefore, the instant distribution schedule should be revised to KRW 19,519,101 as the dividend amount of KRW 189,464,089 against the Defendant as KRW 208,983,190 against the Plaintiff (i.e., additional dividend amount of KRW 189,464,089 + the existing dividend amount of KRW 19,519,101).

4. Conclusion

If so, the plaintiff's claim shall be accepted with due reason, and the judgment of the court of first instance shall be concluded.

B Since it is improper to accept the Plaintiff’s appeal and revoke the first instance court’s decision and distribute the instant dividends.

It is so decided as per Disposition by the assent of all participating Justices on the bench.

A. Enterprise Promotion Foundation

Korea

Jeonju District Court-2013-Gohap-8211 (2015.06)

2016.04.21

2016.05.19

1. Revocation of a judgment of the first instance;

2. Of the distribution schedule prepared by the aforementioned court on November 25, 2013, the amount of KRW 189,464,089, and KRW 19,519,101, and the amount of dividends to the plaintiff to the plaintiff shall be corrected to KRW 208,983,190, among the distribution schedule prepared by the aforementioned court on November 25, 2013, with respect to the auction of real estate in the Jeonju District Court Decision 2012 9527,201 and 201,00 won, respectively.

The same shall apply to the order.

1. Basic facts

A. The Plaintiff’s lending to twoA and establishment of a right to collateral security

1) On May 24, 2006, two A made a report on the construction of a structure with respect to the general steel-frame structure 1,227.6 square meters (hereinafter “the instant real estate”). On August 18, 2006, the Plaintiff agreed to grant a loan of KRW 1,832,00,000 to two A, with interest rate of KRW 4.8% per annum and interest rate of KRW 12% per annum, and paid part of the loan (hereinafter “loan”).

3) In order to secure the instant loan, 2A: (a) 00 m20 m2,00 m2, 118-1 m2,96 m2,96 m2,00 m2,00 m2,00 m2,00 m2; (b) 119 m2,00 m2,00 m2,000 m2,00 m2,000 m2,000 m2,000 m2,000 m2,00 m2,000 m2,000 m2,000 m2,000 m2,000 m2,00 m2,00 m2,00 m2,00 m2,00 m2,00 m2,00 m2,00 m2,00 m2,01.

5) On August 21, 2006, the Plaintiff completed the registration of the establishment of a mortgage on the existing collateral of this case based on the above contract to establish a mortgage.

B. Transfer agreement and provisional disposition on the instant real property

1) On November 2006, the twoA made a request to the Plaintiff for “as the Plaintiff did not approve the remaining loan amount on the ground of the occurrence of the first default of the twoA, since the construction and equipment of the instant real estate and machinery was completed, then the Plaintiff would process the instant real estate and machinery in accordance with the Plaintiff’s procedure and support the remaining loan amount according to the initial agreement.”

2) On December 14, 2006, the Plaintiff entered into a security agreement with the twoA on the instant real estate and low temperature storage, with a collateral limit of KRW 1,832,00,000 regarding machinery and equipment (hereinafter “instant security agreement”).

3) By January 23, 2007, the Plaintiff paid 2A the remainder of the instant loans to 2A.

4) The Plaintiff completed the registration of ownership preservation as to the instant real estate on March 10, 2010, which was received on March 10, 2010, on behalf of twoAs based on the right to claim the return of the instant loan.

5) As to the instant real estate, the Plaintiff filed an application for provisional injunction against disposal as the Jeonju District Court 2010Kahap140, Jeonju District Court 2010 on March 17, 2010 on the ground that the right to claim the execution of the registration of creation of the right to collateral under the Factory and Mining Foundation Mortgage Act was the right to be preserved. The above court accepted the above application on March 17, 2010 and rendered a provisional injunction order. As to the instant real estate on the ground of the provisional injunction order, the Jeonju District Court Kim Jong Branch Office 5985 on March 17, 2010, the provisional injunction registration for the Plaintiff’s assertion as the right to preserve the said right was completed (hereinafter referred to as the “provisional injunction”). On September 6, 2010, the Defendant’s seizure of the instant real estate on the ground of default on national tax, entrusted the registration of establishment of the right to collateral, thereby completing the attachment registration (hereinafter referred to as the “registration of attachment”).

(d) Plaintiff’s principal lawsuit and ownership transfer registration;

1) The Plaintiff filed a lawsuit with the Jeonju District Court on the merits regarding the instant provisional disposition (No. 2010Kadan21889). The Plaintiff filed a claim with the Jeonju District Court to the effect that, around August 18, 2006, the Plaintiff, around the instant lawsuit, filed a claim with respect to the instant real estate and low temperature storage and machinery equipment, the establishment registration procedure of the establishment of a factory with the maximum debt amount of 2,439,000,000 won, and the debtor twoA, arising from the contract to establish a factory mortgage agreement with respect to the instant machinery and equipment, shall be implemented in preliminary order, and the ownership transfer registration procedure for the instant real estate and low temperature storage and machinery and equipment shall be implemented on December 14, 2006.

2) The above court dismissed the above main claim on the grounds that there is no evidence to prove the fact that the Plaintiff entered into a factory mortgage contract, and accepted the part concerning the instant ancillary claim regarding the instant real estate in recognition of the instant transfer security agreement on the instant real estate. 3) The Plaintiff completed the ownership transfer registration (hereinafter referred to as “the instant transfer registration”) as the receipt of No. 19980 on August 26, 201 on the ground of the transfer security agreement on the instant real estate on December 14, 2006.

1) The Plaintiff filed an application for an auction on the instant real estate. The Jeonju District Court, around 2012, under around 9527, around 2012, around 9534, followed by the auction procedure for real estate rent (hereinafter “instant auction procedure”). On November 25, 2013, the date of distribution was 209,192,310, among the amount to be actually distributed at the auction procedure of this case, the Plaintiff filed an application for cancellation of the provisional disposition of this case on the ground that the Plaintiff filed an application for cancellation of provisional disposition of this case 189,464,089, 209,120 won with the Defendant who is the person holding the attachment right and the person holding the right to deliver (the pertinent tax), and the Plaintiff filed an application for cancellation of provisional disposition of provisional disposition of this case 31,414.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence Nos. 1, 2, and 6, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

In the following respect, the instant dividend table ought to be revised with the content that the dividend amount for the Defendant is distributed to the Plaintiff.

1) Claim of priority as a secured party

A) The priority claim as a mortgagee;

The Supreme Court Decision 201Da108743 Decided September 26, 2013, which held that the registration of ownership transfer on the instant real estate was not completed at the time when the Plaintiff entered into a transfer security agreement with twoA, a debtor, and the instant real estate, is not completed, and the Supreme Court Decision 2011Da108743 Decided September 26, 201, which held that the ownership transfer right shall be acquired only after completing the transfer transfer registration cannot be applied as it is. Rather, in light of the purport of the above Supreme Court Decision, since the validity of the transfer security agreement is recognized in a unregistered state, the Plaintiff acquired the status of the mortgagee as a mortgagee on December 14, 2006 at the time when the transfer security agreement in this case

The Plaintiff completed the registration of provisional disposition in this case for factory mortgage, which is a security right, and completed the registration of ownership transfer on the real estate in this case. ① The registration of ownership transfer on the real estate in this case, which is the security right, was completed after completion of the registration of provisional disposition. ② Supreme Court Decisions 2012Da203843 Decided April 26, 2013, which held that the registration of ownership transfer on the real estate in neighboring areas, which is not indicated as a provisional disposition after the registration of provisional disposition, has the effect of priority preservation according to the order of provisional disposition, and ② The effect of preservation by provisional disposition extends to other rights, which are identical to that of the preserved right and the basis of the claim. ② Since the right to the right to the registration of provisional disposition in this case is a security right which is the right to preferential payment, the right to the right to the registration of provisional disposition in this case, which is a security right, is recognized as identical to the right to the right to the right to the registration of provisional disposition in this case, the Plaintiff cannot claim the registration of ownership transfer based on the provisional disposition within 2015.

As above, insofar as the Plaintiff acquired a security right to the instant real estate, the Defendant is not in the position to receive dividends in the instant auction procedure. The Defendant, who was not in the position to receive dividends as above in the process of the process of the Plaintiff’s execution of the security right, completed the registration of establishment of seizure period and claimed senior dividends to the Plaintiff based on this, constitutes abuse of rights, and thus constitutes abuse of rights. Even if the Defendant’s seizure registration is valid, it accords with the factual basis to recognize the status of the right to preferential reimbursement as the secured party in the distribution order, and accords with the legal relationship between the Plaintiff and the Defendant, and thus, the Defendant’s assertion of senior dividends to the Plaintiff constitutes abuse of rights.

B. Defendant’s assertion

1) The Plaintiff’s right to collateral security terminates due to the repayment of the secured debt or the renewal of the BB Guarantee Fund.

The secured claim of the Plaintiff’s right to collateral security was subrogated by the BB Guarantee Fund. Thereafter, on August 21, 2006, the Plaintiff agreed to transfer the mortgage established with respect to the instant existing collateral to the BB Guarantee Fund. This is a kind of light contract transferring the security right to collateral security to the BB Guarantee Fund. Therefore, the Plaintiff’s former claim was extinguished and the new claim was created to the BB Guarantee Fund.

Therefore, the secured claim of the plaintiff's security right is extinguished by subrogation of the BB Guarantee Fund, and also the security right of transfer was extinguished by incidental nature, and even if the security right of transfer is transferred, the plaintiff's old claim was extinguished by a novation agreement and the security right of transfer was also extinguished.

2) The defendant's assertion that the order of dividend priority is priority before the statutory due date as the holder of the right of delivery.

The Defendant’s taxation claim is global income tax, securities transaction tax, transfer income tax, and statutory due date prior to the due date for payment. In light of the Defendant’s taxation claim’s delayed payment period on August 31, 2009, the statutory due date for the Defendant’s taxation claim is prior to the registration of provisional disposition in this case.

Therefore, the defendant is entitled to receive dividends in preference to the plaintiff because the legal date as the delivery right holder is prior to the provisional disposition of this case.

3. Determination

A. Determination as to whether the Plaintiff acquired a security right by means of transfer only with the instant security transfer agreement without registration

Security interest is created by completing the registration of transfer of ownership in accordance with the security contract. However, a security interest cannot be deemed to have been acquired in the event a provisional registration or the registration of transfer of ownership is not completed with respect to real estate subject to security (see, e.g., Supreme Court Decisions 96Da3116, Nov. 15, 1996; 201Da108743, Sept. 26, 2013). According to the above basic facts, according to the above basic facts, the Plaintiff’s twoAs and the instant real estate on December 14, 206.