A. Whether the illegality of a disposition asserted only in the final appeal can be a legitimate ground for appeal

(b) Criteria for determining "amount presumed to be determined as national taxes" under Article 24 (2) of the National Tax Collection Act;

C. The meaning of preferential payment right under Article 30-2 of the Labor Standards Act

A. Unless there are special circumstances in administrative litigation, the pertinent administrative disposition authority should assert and prove the legality of the pertinent administrative disposition. However, in a claim for revocation on the grounds of illegality of administrative disposition, the relevant administrative disposition authority should first assert specific facts except for the matters to be investigated ex officio. Thus, the grounds for the illegality of disposition asserted only in the final appeal cannot be a legitimate ground for appeal.

B. Under the provision of Article 24(2) of the National Tax Collection Act, the scope of claims that may be seized by the disposition of the preservation before the determination of national taxes is limited to the amount of taxes presumed as of the time of the preservation and seizure, and it is unlawful to seize in excess of the limit. However, the phrase “amount presumed to be national taxes” under the provision of Article 24(2) of the same Act refers to the amount which the chief of a tax office notifies taxpayers of the seizure under Article 28-2 of the Enforcement Decree of the same Act, not to determine on the basis of the amount of taxes stipulated in subparagraph 2 of the same Article, but to determine on the basis of the amount of taxes stated in the notice and the amount of taxes determined within three months under the provision of Article

C. It is merely the fact that a preferential right to payment of taxes, public charges, and other general claims under Article 30-2 of the Labor Standards Act may be paid in preference to general claims in cases where a debtor's property is subject to compulsory execution against the debtor's property, and it cannot be deemed that a right to claim a direct payment has already been granted in preference to other creditors by excluding the validity of attachment disposition already made by other creditors.

A. Article 26 of the Administrative Litigation Act : (b) Article 24 of the National Tax Collection Act, Article 28-2 (c) of the Enforcement Decree of the National Tax Collection Act;

A. Supreme Court Decision 80Nu510 (Gong1981, 14104) decided Nov. 25, 1994 (Gong1995Sang, 131). Supreme Court Decision 92Nu831 decided Nov. 10, 1992 (Gong1993Sang, 144) (Gong198, 1029) decided Jun. 14, 1988; Supreme Court Decision 93Da61611 decided Dec. 9, 1994 (Gong195Sang, 444)

[Defendant-Appellant] Cho Jae-seok et al., Counsel for defendant-appellant-appellant

Deputy Director of the Tax Office

Seoul High Court Decision 94Gu9797 delivered on January 11, 1995

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

1. We examine the first ground for appeal.

A. The court below found the plaintiff company's evasion of corporate tax by calculating the amount of wages paid to its workers in excess of the actual amount of expenses in excess of the amount of expenses. On March 22, 1994, in order to secure the tax claim in advance pursuant to Article 24 (2) of the National Tax Collection Act, the plaintiff seized 136,607,69 won in advance before the determination of national tax, and notified the plaintiff of the attachment on the same day. After that, on May 16, 1991, the defendant corrected corporate tax for the year 1991 and corporate tax for the year 192 for which the plaintiff paid to the worker in excess of the actual amount of expenses. Accordingly, the court below erred in the misapprehension of the legal principles of the National Tax Collection Act, which affected the conclusion of the judgment of the judgment of the court below, and it did not err in the misapprehension of the legal principles as seen above.

B. According to the records, the defendant prepared a report on the attachment of a claim, stating that the amount of the claim to be seized is determined against the non-party company, which is 136,607,669 won in the amount of the claim to be seized, and that the amount of the claim is not determined because the settlement is not completed yet, and the non-party company, which is the debtor, has been notified of the attachment of the claim as stated in the above attachment report. Thus, the preservation attachment disposition of this case is effective in accordance with the above attachment notification against the non-party company. Since the attachment notification to the plaintiff, the attachment notification to the plaintiff, is not an effective condition for the attachment, even if the amount of the claim stated in the attachment notification to the non-party company is less than the amount of the claim to be seized as stated in the attachment notification to the non-party company, the attachment is effective in accordance with the notification to the non-party company. Thus, it cannot be viewed that the preservation disposition is unlawful due to the difference between the taxpayer's notification and the obligor's notification to the obligor.

2. We examine the second ground for appeal.

A. Unless there are special circumstances in administrative litigation, the pertinent disposition authority should prove the legality of the pertinent administrative disposition. However, when claiming the revocation on the grounds of illegality of administrative disposition, the relevant disposition authority should first assert specific facts except for the ex officio investigation. Thus, the grounds for illegality of disposition asserted only in the final appeal cannot be a legitimate ground for appeal (see, e.g., Supreme Court Decisions 80Nu510, Jun. 23, 1981; 94Nu9047, Nov. 25, 1994).However, according to the records, the fact that the defendant did not obtain the approval of the regional tax service under Article 24 (3) of the National Tax Collection Act in the disposition of preservation and seizure prior to the determination of national tax in this case, it is obvious that the plaintiff raised only in the final appeal, and it is not clear that the plaintiff did not have raised any objection to the original judgment, and therefore, the approval of a regional tax office cannot be a legitimate ground for appeal against the judgment below.

B. Article 24 (2) of the National Tax Collection Act, which provides for the preservation and seizure prior to the determination of national taxes, provides that "The scope of claims that may be seized by the preservation and seizure disposition prior to the determination of national taxes may be limited to the amount of taxes presumed to be at the time of the preservation and seizure, and it shall be illegal to seize in excess of the above limit. However, the "amount presumed to be national taxes" under Article 24 (2) of the same Act shall not be determined on the basis of only the amount of taxes stipulated in subparagraph 2 of Article 28-2 of the Enforcement Decree of the same Act stated in the document notifying the taxpayers of the seizure in accordance with Article 24 (5) 2 of the same Act, but it shall be determined reasonably by comparing the amount of taxes stated in the notice and the amount of claims confirmed within three months in accordance with Article 24 (5) 2 of the same Act.

The court below determined that the above amount of the seized claim cannot be viewed as an unlawful ground as pointing out in the above disposition of preservation, on the ground that the amount of national tax related to the seizure is stated as KRW 123,062,00,00, which is the amount of the national tax related to the seizure, and that it is true that the amount is less than the amount of the pre-paid processed bond after March 11, 1994, although the amount of the seized claim is less than the amount of the pre-paid processed bond after March 11, 1994, and that the amount of the seized claim is less than the amount of 274,642,378, which is the amount of the taxation claim determined within three months by the defendant, and that the amount of the seized claim is less than the amount of the tax claim determined by the defendant as national tax under Article 24(2) of the above Enforcement Decree. In light of the records, the court below's above recognition and judgment are justified.

C. The fact that the defendant collected more amount than the amount of claims actually seized by the above non-party company, the garnishee, cannot be a ground that affects the validity of the seizure of claims. Therefore, there is no ground for discussion.

3. We examine the third ground for appeal.

According to the records, on April 7, 1994, the defendant notified the non-party company that the total amount of 67,202,550 won of the plaintiff's wages claimed by the non-party company should be repaid preferentially, but the defendant revoked the above request for the payment of wages on the ground that the payment of wages was not confirmed next day, but the above facts alone are not enough to deem that the defendant revoked the disposition for the preservation of the seizure of this case.

Article 54 (1) of the National Tax Collection Act provides that when the head of a tax office releases the attachment, he/she shall notify the right holder, obligor, or a third party of the release of the release of the attachment. Article 58 of the Enforcement Decree of the same Act provides that the release of attachment shall be made in the report of the release of attachment, and Article 59 of the Enforcement Decree of the same Act provides that matters to be stated in the notification of the release of attachment shall be stated respectively. In light of the records, there is no evidence to deem that the defendant notified the above cooperation to the non-party

Therefore, the defendant asserted that the plaintiff's workers had wages in arrears that were not received from the plaintiff, and asserted the priority order in the dividend of the above seized claims, and requested the non-party company to cooperate with the purpose of preferentially allocating the amount of claims to be collected from the non-party company based on the right of collection under the above seizure order in the future. Thus, the above request for cooperation should be regarded as the yield of priority in order to clarify the distribution procedure for the future, on the premise that the above request for cooperation remains effective, and it shall not be deemed as a declaration of intent based on the cancellation of the preservation seized disposition as discussed. There is no reason to discuss.

4. We examine the fourth ground for appeal.

The taxation of wage claims, public charges, and preferential rights to payment on other general claims as stipulated in Article 30-2 of the Labor Standards Act are merely the fact that in case where a compulsory execution is conducted against the debtor's property, it is possible to be paid in preference to general claims from realization proceeds by such compulsory execution, and it is not deemed that the court below already granted the right to seek direct payment prior to others by excluding the validity of the attachment disposition made by other creditors (see, e.g., Supreme Court Decisions 87Da322, Jun. 14, 1988; 93Da61611, Dec. 9, 194; 93Da61611, Dec. 1, 1994). In the same purport, even if the plaintiff, the debtor of the seized claim of this case, who is the debtor of the seized claim of this case, was liable for the wage obligation under Article 30-2 of the Labor Standards Act to secure national tax claims, such fact alone does not constitute an illegality in the effect of the attachment of the defendant

Therefore, the appeal is dismissed and all 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 Jeong Jong-ho (Presiding Justice)