Whether the proceeds of the public auction can be distributed as a tenant of small claims;

Where the relevant house is sold by public auction under the condition that the lessee is not paid the remainder of the deposit under the lease contract, the lessor has not renounced the remainder, and the deposit for lease under the lease contract is maintained as the initial contract, and is not subject to preferential repayment as a small lessee.

Article 35 of the Framework Act on National Taxes

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

1. Basic facts

A. On October 27, 2005, the Plaintiff entered into a housing lease agreement with the non-party ○○○○○○○○○○○○○○ (hereinafter referred to as the “instant building”) under which the Plaintiff paid KRW 45,00,000 on a deposit for lease, '24 months from October 27, 2005 to 24 months from the term of lease, '5,000,000 on a deposit,' and '5,000,000 won on a deposit basis, 'the intermediate payment of KRW 20,000 on November 10, 2005, 'the remainder payment of KRW 20,000,000 on March 30, 2006', and paid the total amount of KRW 10,000 on a deposit and intermediate payment by October 27, 205, 2005.

B. However, after the payment of intermediate payment, the Plaintiff did not pay any balance of KRW 20,000,000, which was promised to pay on March 30, 2006, on the ground that the secured value of the instant real estate was decreased substantially after the intermediate payment, and on the other hand, after completing the move-in report around November 25, 2005 with respect to the instant lease, the Plaintiff obtained a fixed date on April 16, 2006.

C. On May 25, 2006, the Defendant seized the instant building to collect national taxes in arrears, and requested the Korea Asset Management Corporation's branch office to sell it by public auction. Accordingly, on April 11, 2007, the sales price of 48,111,00 won and the deposit interest of 67,118 won were to be distributed to 48,178,118 won. Examining the details thereof, the Defendant allocated 1,871,810 won and 23,680,000 won, 23,680,000 won, 3rd 42,626,308 won, respectively.

D. The Plaintiff asserted that the deposit for lease under the Housing Lease Protection Act is KRW 25,00,00,000 when the said public sale proceeds are distributed, and the Plaintiff is a small lessee entitled to preferential payment under the Housing Lease Protection Act, and the Defendant demanded the Defendant to report the right and distribute the said amount. The Defendant rendered the instant disposition rejecting the distribution on the ground that the Plaintiff is not a small lessee (after the Plaintiff raised an objection to the instant disposition at the time of distribution, the Plaintiff filed a second objection with the head of ○○ Tax Office on April 16, 2007, but dismissed the application on May 9, 2007, and requested a judgment with the head of ○○○ Office on June 13, 2007, but the claim was dismissed on August 27, 2007).

[Reasons for Recognition] Facts without dispute, entry A. 1.2.4 through 11 (including each number)

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Since the amount actually paid by the Plaintiff out of KRW 45,00,000 under a contract with ○○ Construction was 25,000,000 and the lessor renounced the remainder, the lease deposit under the above Housing Lease Protection Act was de facto changed to KRW 25,00,000. Thus, the instant disposition rejecting distribution on the ground that the Plaintiff is not a small lessee who is entitled to preferential reimbursement under the Housing Lease Protection Act, notwithstanding the fact that the Plaintiff is a small lessee who is entitled to preferential reimbursement under the Housing Lease Protection Act, is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

According to Article 8 of the Housing Lease Protection Act and Article 3 (1) and (4) of the Enforcement Decree of the Housing Lease Protection Act, if a tenant who rents a house in an overconcentration control region and an area outside a Metropolitan City in the Seoul Metropolitan area does not exceed 30,000,000 won, he/she may be paid preferentially from the proceeds from the sale of the house leased up to 12,00,000 won at an auction under the Civil Execution Act or a public auction under the National Tax Collection Act.

However, if the purport of the entire pleadings is added to the testimony of Gap evidence 1 (a lease contract) and Eul evidence 2-1, 2 (each receipt), and each testimony of ○○○○ and Dog○○○○, the plaintiff entered into a housing lease contract with ○○ Construction on October 27, 2005 with the purport of KRW 45,00,000 with respect to the building of this case. However, the plaintiff did not pay the remainder of KRW 20,00,000 on the ground that the value of the real estate of this case was reduced after the intermediate payment was made. Since the plaintiff did not pay the remainder, ○○ Construction Representative et al. urged the plaintiff to pay the remainder continuously without giving up the remainder of the claims. Thus, the lease deposit of the housing lease contract of this case is maintained as KRW 45,00,000,000, and there is no ground to believe that the lease deposit was changed to KRW 25,000,000.

Therefore, in this case, the defendant's disposition that the plaintiff refused to distribute the proceeds of public auction on the ground that it is not a small lessee is legitimate.

3. Conclusion

Therefore, the plaintiff's claim seeking revocation on the premise that the defendant's disposition of this case is illegal is dismissed as it is without merit. It is so decided as per Disposition.

Related Acts and subordinate statutes

Housing Lease Protection Act

The scope of application of Article 2 shall apply to the lease of all or part of a residential building (hereinafter referred to as "house"). The same shall also apply where part of a leased house is used for any purpose other than residence.

Article 3 (1) Lease, such as opposing power, shall take effect against a third person from the following day when the lessee has completed the delivery of a house and the resident registration even in the absence of such registration. In such cases, the resident registration shall be deemed made at the time of the moving-in report.

(1) Where a lessee (including corporations referred to in Article 3 (2); hereinafter the same shall apply) applies for auction of a leased house based on a final and conclusive judgment on a lawsuit demanding the return of deposit or execution title corresponding thereto, the performance of opposite obligations or provision of performance shall not be the requirements for the commencement of execution, notwithstanding Article 41 of the Civil Execution Act concerning the requirements for the commencement of execution.

Article 8 (Protection (1) A lessee shall have the right to pay a specified amount of the deposit in preference to other security holders of the security interest. In such cases, the lessee shall meet the requirements of Article 3 (1) prior to the registration of a request for auction of the house.

(2) Article 3-2 (4) through (6) shall apply mutatis mutandis to cases under paragraph (1).

(3) The scope of and standards for a specified amount of a tenant and a deposit to be preferentially repaid pursuant to paragraph (1) shall be prescribed by Presidential Decree within the limit of 1/2 of the housing price (including the value of the site

Enforcement Decree of the Housing Lease Protection Act

(1) The scope of a specified amount of a deposit to be preferentially repaid pursuant to Article 8 of the Act shall not exceed the amount according to the classification falling under each of the following subparagraphs:

1. Overconcentration control region among the Seoul Metropolitan area under the Seoul Metropolitan Area Readjustment Planning Act: 16 million won;

2. Metropolitan City (excluding Gun area and Incheon Metropolitan City area): 14 million won; and

3. Other areas: 12 million won.

A lessee to be preferentially reimbursed under Article 4 (8) of the Scope of lessees to be preferentially reimbursed shall be the lessee whose deposit is not more than the amount classified as follows:

1. Overconcentration control region among the Seoul Metropolitan area under the Seoul Metropolitan Area Readjustment Planning Act: 40 million won;

2. Metropolitan City (excluding Gun area and Incheon Metropolitan City area): 35 million won; and

3. Other areas: 30 million won.

Basic Act

Article 35 (Priority of National Tax) The national tax, additional dues or disposition fee for arrears shall be collected in preference to other public imposts and other claims: Provided, That this shall not apply to public imposts and other claims falling under any of the following subparagraphs

3. In the case of selling the property for which the fact that the establishment of the deposit rights, pledge rights, or mortgage has been registered prior to the date falling under any of the following items (hereinafter referred to as the "legal deadline") is proved under the conditions as prescribed by the Presidential Decree, if the national tax or additional dues (excluding the national tax and the additional dues imposed on the property) is collected from the proceeds of sale, the claims secured by the deposit rights, pledge

(a) For the returned tax amount, in case of the national tax for which a duty to pay is determined by the tax base and return of tax amount (including the interim prepayment corporate tax and the value-added tax paid by preliminary return),

(b) Where the Government determines, revises, or occasional assessment of the tax base and amount, the date of sending a tax notice for the relevant tax amount;

(c) For the national taxes and stamp taxes collected from the withholding agent or tax association, the date on which the tax liability is determined, notwithstanding items (a) and (b);

(d) Where the national tax is collected from the property of the person liable for secondary tax payment (including a guarantor), the date of sending the notice of payment under Article 12 of the National Tax Collection Act; and

(e) Where national taxes are collected from the property transferred for security, the date of sending the notice of payment under Article 13 of the National Tax Collection Act;

(f) Where the property of a taxpayer is seized under Article 24 (2) of the National Tax Collection Act, the date of seizure or registration shall be the tax amount finalized in connection with the attachment, notwithstanding items (a) through (e);

4. Where the national tax or the additional dues are collected from the amount of sale of leased residence or building to which Article 8 of the Housing Lease Protection Act or Article 14 of the Commercial Building Lease Protection Act is applied, the claims to a specified amount of the deposit money for the lease which the lessee may be paid preferentially under the said Article;

National Tax Collection Act

Article 41 (Procedures for Attachment of Claim) (1) When the director of the tax office attaches a claim, he shall notify it to the obligor of the claim.

(3) If the attachment under paragraph (1) is made, the director of the tax office shall notify it to the obligee who is the defaulted taxpayer.

Article 45 (Attachment Procedure ① When the head of a tax office attaches real estate, factory foundation, mining foundation, or ship, he/she shall request the competent registry office to register seizure. The same procedures shall be taken for registration of its modification.

(4) The provisions of Article 41 (3) shall apply mutatis mutandis to the attachment under paragraph (1) or (3).

Article 61 (1) The head of a tax office shall place the attached movables, securities, real estate, intangible property rights, and things (excluding currency) received by subrogation of a delinquent taxpayer under Article 41 (2) at a public auction under the conditions as prescribed by the Presidential Decree: Provided, That the head of a tax office may have the Korea Asset Management Corporation established under the Act on the Efficient Disposal of Non-Performing Assets, etc. of Financial Institutions and the Establishment of Korea Asset Management Corporation (hereinafter referred to as the "Korea Asset Management Corporation") execute the public auction on his/her behalf, if it is deemed that the attached property needs expertise in the public auction or is inappropriate for the direct public auction

Article 67 (Method and Public Notice of Public Auction) The public auction shall be conducted by bidding or auction.

(2) The director of the tax office shall, when intending to sell by public auction, announce the following matters. In this case, he/she may publicly announce en bloc the matters concerning the public auction, such as the public auction, reauction, etc.

1. Deadline for payment of purchase price;

2. Name, location, quantity, quality, estimated sale price, and other important matters of the property for public auction;

3. Date and place of auction or bidding;

4. Place and date of opening bids;

5. The amount of bonds, if received;

(3) Public auction notification shall be posted at a regional tax office, tax office, customs office, Si/Gun or other appropriate places: Provided, That if necessary, it may be published in the Official Gazette or daily newspapers.

(4) In conducting a public auction notification under paragraph (3), the details of such public announcement shall be notified through the information and communications network under subparagraph 18 of Article 2 of the Framework Act on National Taxes.

(5) For the public auction of the property, an auctioneer may be selected to handle the auction procedure.

(6) Matters necessary for public announcement under paragraph (2) shall be prescribed by Presidential Decree.

Article 81 (Distribution Method) The money under Article 80 (1) 2 and 3 shall be allocated to the following national taxes, surcharges, expenses for disposition on default, and other claims:

1. National taxes, additional dues and disposition fees for arrears related to attachment;

2. National taxes, additional dues, disposition fees for arrears, local taxes or public charges requested for delivery;

3. Claims secured by deposit rights, pledges, or mortgages related to the attached property;

(2) The money under Article 80 (1) 1 and 4 shall be appropriated for the national taxes, additional dues, and disposition fee for arrears related to the request for seizure or delivery, respectively.

(3) The money left over after distribution under paragraphs (1) and (2) shall be paid back to the defaulted taxpayer.

(4) If the proceeds from sale fall short of the total amount of national taxes, additional dues and expenses for disposition on default under any subparagraph of paragraph (1), the head of a tax office shall determine the order and amount to be distributed under

(5) In case where the director of the tax office distributes or appropriates the amount of delinquent taxes in preference to the delinquent taxes due to mistake in distribution order, unreasonable request for delivery and other similar reasons in spite of the claims which take priority over the national taxes when allocating or appropriating under paragraph (1) or (2), he shall pay the amount to the creditors which take precedence over the national taxes in the

Article 83 (Preparation of Distribution Statement) (1) When the head of a tax office distributes money pursuant to the provisions of Article 80, he/she shall prepare the Distribution Statement and deliver it to the delinquent taxpayer, as prescribed by the Presidential Decree. In this case, the person subject to distribution shall request the head of a tax office to distribute it before he/she prepares the Distribution Statement.

(2) The disposition on default shall be terminated by preparing a distribution statement under paragraph (1).