Plaintiff Co., Ltd. (Law Firm Sejongsan, Attorneys Kim Chang-soo et al., Counsel for the plaintiff-appellant)

Yeongdeungpo-gu Seoul Metropolitan Government 2 (Attorney Choi Chang-chul et al., Counsel for the defendant-appellant)

July 13, 2007 (Defendant 3)

August 31, 2007 (Defendant 1.2)

Seoul Central District Court Decision 2006Gahap41124 Delivered on November 8, 2006

1.The judgment of the first instance shall be modified as follows:

A. The plaintiff's main claim is dismissed.

B. Defendant Yeongdeungpo-gu, Seoul, shall pay to the Plaintiff 22,954,552 won; Defendant Seoul, Seoul, 206,401,609 won; and 5% interest per annum from March 18, 2006 to October 26, 2007; and 20% interest per annum from the next day to the date of full payment.

C. The plaintiff's remaining conjunctive claims are dismissed.

2. Of the total litigation costs, the part arising between the Plaintiff, the Yeongdeungpo-gu Seoul Metropolitan Government, and the Defendant Seoul Metropolitan Government shall be 1/10, the remainder 9/10 shall be borne by the Plaintiff, and the remainder 9/10 shall be borne by the said Defendants

3. The 1.-2. The provisional execution may be effected.

The judgment of the first instance shall be revoked.

In the first place, the defendant Yeongdeungpo-gu Seoul Metropolitan Government shall pay 176,802,582 won to the plaintiff, the Mapo-gu Seoul Metropolitan Government shall pay 76,572,967 won to the defendant, and 5% interest per annum from March 18, 2006 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

Preliminary, the Plaintiff shall pay to the Plaintiff 29,383,253 won for the Defendant Yeongdeungpo-gu Seoul Metropolitan Government, the Defendant Seoul Metropolitan Government shall pay 223,92,296 won for each of them, and 5% per annum for each of them from March 18, 2006 to the delivery date of a copy of the complaint of this case, and 20% per annum for each of them from the next day to the day of full payment.

The second preliminary, the plaintiff, the defendant Yeongdeungpo-gu, the defendant Yeongdeungpo-gu, the Seoul Metropolitan Government, the defendant 22,60 won, the 264,632,90 won and the 5% interest per annum from March 18, 2006 to the delivery date of a copy of the complaint of this case, and the 20% interest per annum from the next day to the day of full payment (the plaintiff added the second preliminary claim at the appellate court).

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by considering the whole purport of the pleadings in each entry in Gap's evidence of 1 to 3, Gap's evidence of 4-1 to 5, Gap's evidence of 5 to 7, and Gap's evidence of 8-1 to 4:

A. A. Around August 2994, Nonparty Co., Ltd. concluded a construction contract with the Plaintiff to construct a main complex building with the 37th floor above the 7th floor above the 7th floor above the ground between the Plaintiff and the Plaintiff, Yeongdeungpo-gu, Seoul Metropolitan Government (hereinafter “instant real estate”) on the ground of the 61-5 large 4,426 square meters above the 7th floor above the 7th floor above the 1999, and had the Plaintiff bear the Plaintiff’s obligation of KRW 29,304,483,669, the total construction cost and loans. On October 29, 1999, the Plaintiff borrowed KRW 1,090,000 as the expenses for completion of construction from the Plaintiff. The Plaintiff did not complete the registration of the establishment of the instant real estate on February 1, 200 to secure the above construction cost claim and loans.

B. On February 3, 200, as the procedure for the disposition on default on national taxes against the non-party corporation, the non-party corporation seized the instant real estate on February 3, 200 and sold the instant real estate in KRW 16,950,000 on December 13, 201. The Plaintiff requested the submission of the claim statement after being requested to submit the claim statement due to the public sale from the Mapo-gu Tax Office, and on December 18, 2001, submitted the claim statement amounting to KRW 39,587,909,83 in total, including the construction cost, loan, interest, etc. to the Mapo-gu Seoul Metropolitan Government (hereinafter referred to as the "Defendant Yeongdeungpo-gu") and the Yeongdeungpo-gu Tax Office (hereinafter referred to as the "Defendant and the "Defendant Mapo-gu") and the Mapo-gu Tax Office around that time.

C. Accordingly, on December 28, 2001, Mapo Tax Office prepared a distribution statement on December 28, 2001; 26,121,640 won for disposition on default; 36,961,290 won for wage of the last three months; 4,896,46,400 won for Mapo Tax Office (Korean) who is the attachment authority prior to the statutory due date; 29,48,568 won for 3,631,759,114 won for Defendant Mapo-gu (including Seoul Metropolitan City entrusted portion); 429,024,533 won for disposition on default; 9,124,533 won for wage of the last three months; 36,961,296,40 won for 300 won for 4,896,400 won for 300 won for 300,000 won for 300,000 won for 429,7151.

D. After that, the plaintiff filed a lawsuit seeking the revocation of the allocation disposition of this case on April 9, 2004 with the Seoul Administrative Court 2002Guhap30319 on the ground that Mapo-gu distributed the sales price to junior lower tax claims than the date of establishing the plaintiff's right to collateral security, and revoked the judgment of the court below on April 28, 2004 as follows: "The Mapo-gu distributed the distribution price to Mapo-gu 3,80,631,010 of the total amount exceeding KRW 3,631,759,114 of the amount exceeding KRW 2,60,60,49,400 of the amount distributed to Mapo-gu, the amount exceeding KRW 8,308,173,530 of the amount distributed to Mapo-gu, the amount exceeding KRW 8,1730,300 of the amount distributed to Mapo-gu, and the amount exceeding KRW 124,194,1250 of the amount distributed.

E. Meanwhile, among the revocation of the instant allocation disposition against Defendant Yeongdeungpo-gu, the part on the revocation of the instant allocation disposition was included in KRW 810,218,90 that was entrusted by the Seoul Metropolitan Government, and the revocation of the instant allocation disposition against Defendant Mapo-gu was the market price at which the entire amount of KRW 420,849,800 was received on consignment by the Seoul Metropolitan Government.

F. Accordingly, Korea is around December 2005; around January 5, 2006; around January 24, 2006, Defendant Yeongdeungpo-gu is subject to the payment decision of each refund; and around January 24, 2006, Korea is subject to the payment of each refund; and on December 22, 2005, under the name of Young-gu, Young-gu, the Republic of Korea is subject to the payment of the refund; and on January 5, 2006, the amount of each of the Defendant Yeongdeungpo-gu was discarded under the name of Young-gu, Young-gu, the name of Young-gu, the tax office; and on January 5, 2006, the sum of KRW 1,231,068,70 (the Defendant Seoul Metropolitan Government is subject to the payment of the refund of Yeongdeungpo-gu + KRW 810,218,900 + KRW 420,849,800).

G. However, among the above refund 810,218,90 won refunded by Defendant Yeongdeungpo-gu Seoul Metropolitan Government to the Plaintiff, it included 50,615,510 won of national taxes, such as “special rural development tax,” which Defendant Yeongdeungpo-gu received upon entrustment by Korea. Of the refund 161,490,810 won refunded by Defendant Yeongdeungpo-gu to the Plaintiff, the total amount of national taxes, such as “educational tax,” and “special rural development tax,” which Defendant Yeongdeungpo-gu received upon entrustment by the Seoul Metropolitan Government, includes KRW 27,345,170 (special rural development tax + KRW 6,043,160 + KRW 21,302,010 of education tax + KRW 2,537,840 of revenue outside the tax, and KRW 1,736,900 of appraisal fee.

(h) relevant regulations;

(1) Local Tax Act

Article 82 (Application Mutatis Mutandis of Framework Act on National Taxes)

The Framework Act on National Taxes and the National Tax Collection Act shall apply mutatis mutandis to the imposition and collection of local taxes, except as otherwise provided in this Act and other statutes.

(2) National Tax Collection Act

Article 81 (Distribution Method)

(1) 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 the right of lease on deposit basis, pledge or mortgage related to the attached property;

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

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

(4) If the proceeds from sale fall short of the total amount of national taxes, additional dues, disposition fees for arrears and other claims under subparagraphs of paragraph (1), the head of a tax office shall determine the order and amount to be distributed under the Civil

(5) Where the director of the tax office distributes or appropriates the amount of delinquent taxes in preference to the amount of delinquent taxes due to mistake in the distribution order, unreasonable request for delivery and other similar reasons, even though there exists any claim which takes priority over the national taxes in allocating under paragraph (1) or appropriating under paragraph (2), he shall pay the amount to the creditor which takes precedence over the national taxes

(3) Framework Act on National Taxes

When the head of a tax office appropriates or pays a national tax refund pursuant to Article 51, he/she shall add an amount calculated according to the interest rate determined by Presidential Decree (hereinafter referred to as "additional refund on refund of national taxes") to the national tax refund, taking into account the period from the day following the day specified in the following subparagraphs to the day when appropriated or determined to pay the refund, and the deposit interest rates of financial institutions. In such cases, in applying the provisions of subparagraph 1, the amount paid through interim prepayment or withholding pursuant to tax law shall be deemed to have been paid on the expiration

1. For a national tax refund due to rectification or cancellation of the return or imposition forming the basis of the relevant payment after an erroneous or double payment, or a payment, the day of relevant payment: Provided, That if the national tax refund was paid in two or more installments, it shall be the last day of payment, but if the national refund exceeds the final payment, it shall be each due date of national tax refund computed retroactively in the order of due dates until it reaches such amount;

(4) Enforcement Decree of the Framework Act on National Taxes

Article 30 (Determination of Additional Payment on Refund of National Taxes)

(1) Where the head of a tax office intends to appropriate or refund a national tax refund pursuant to the provisions of Article 51 of the Act, he/she shall determine the refund on the refund of national taxes as provided in Article 52

(2) The interest rate on the additional payment on the refund of national taxes under paragraph (1) shall be the interest rate as determined by the Ordinance of the Ministry of Finance and Economy in consideration of the average receipt rate of

(5) Enforcement Rule of Framework Act on National Taxes

The term "interest rate determined by the Ordinance of the Ministry of Finance and Economy in consideration of the average interest rate of one-year time deposits in a city bank" in Article 30 (2) of the Decree means the interest rate determined and publicly announced by the Commissioner of the National Tax Service in consideration of the average interest rate of one-year time deposits in a financial institution which has been authorized to engage in banking business pursuant to the Banking Act, of the financial institution

2. Determination as to the defense prior to the main text of the defendant Yeongdeungpo-gu and Mapo-gu

The Plaintiff sought additional payment under Article 52 of the Framework Act on National Taxes on the part of the above Defendants’ refund money against the Defendant Yeongdeungpo-gu and Mapo-gu. The Defendants asserted to the effect that, among the part of the Defendants’ refund money, the market price, such as “resident tax” and “automobile tax,” which the Defendants received on consignment by the Defendant Seoul Special Metropolitan City, is partly included. As to that part, Defendant Seoul Special Metropolitan City is liable to make additional payment, and thus, Defendants are not eligible to be the Defendant. However, in a lawsuit for performance, the Defendants’ defense is without merit.

3. Judgment on the merits

A. The plaintiff's assertion

(1) Article 82 of the Local Tax Act provides that the Framework Act on National Taxes and the National Tax Collection Act shall apply mutatis mutandis to the imposition and collection of local taxes, except as otherwise provided for in this Act and other Acts and subordinate statutes. Article 81(5) of the National Tax Collection Act provides that where the local taxes are distributed or appropriated in preference to the delinquent amount due to a mistake in the distribution order, the creditor having priority over the national taxes shall be paid in accordance with the examples of refund of national taxes. Article 52 of the Framework Act on National Taxes provides that the refund of national taxes shall be paid in the payment of the national tax refund. In full view of each of the above provisions, the Defendants are obliged to pay additional dues under Article 52 of the Framework Act on National Taxes

(2) The Plaintiff asserts that, in addition to the Gu tax, the market price that the Defendants received upon entrustment from the Defendant Seoul Metropolitan Government is included in the part of the refund money of the Defendant Yeongdeungpo-gu and Mapo-gu, and that it is the primary and preliminary

① Mainly, Defendant Yeongdeungpo-gu and Mapo-gu shall seek additional charges on the total amount of the refund money of the said Defendants.

(2) Preliminaryly, Defendant Yeongdeungpo-gu and Seoul shall seek the payment of additional dues on the Gu tax of the above defendant's portion out of the refund money to the defendant Yeongdeungpo-gu and the additional dues on the part of the refund money of the defendant Mapo-gu shall be sought against the defendant Seoul Metropolitan Government.

③ Preliminaryly, Defendant Yeongdeungpo-gu and Seoul Special Metropolitan City have a duty to return to the Plaintiff the amount of unjust enrichment calculated at an annual interest rate of 5% on the amount of money (the Seoul Special Metropolitan City shall be KRW 1,254,428,690, and KRW 106,507,30 for Defendant Yeongdeungpo-gu shall be KRW 1,254,428,660, and KRW 264,632,90 for Defendant Yeongdeungpo-gu, Seoul Special Metropolitan City shall be returned to the Plaintiff.

B. The defendants' assertion

The Defendants’ refund following the cancellation of the distribution disposition of this case differs from the ordinary amount of tax erroneously paid or overpaid under Article 51 of the Framework Act on National Taxes. Meanwhile, even if Article 82 of the Local Tax Act applies mutatis mutandis pursuant to the National Tax Collection Act or the Framework Act on National Taxes, Article 81(5) of the National Tax Collection Act provides that “in cases where the director of the tax office distributes or appropriates the amount of tax in preference to the amount of tax in arrears due to the error in the distribution order, the wrongful request for delivery, and other similar reasons, the director of the tax office shall pay the amount distributed or appropriated to the creditors having priority over the national tax refund in the same manner as the national tax refund is refunded.” Thus, there is no provision as to the additional payment on the amount of the Defendants’ refund following the cancellation

C. Determination

(1) Whether to recognize additional dues on refund

Article 82 of the Local Tax Act provides that the Framework Act on National Taxes and the National Tax Collection Act shall apply mutatis mutandis to the imposition and collection of local taxes, except as otherwise provided for in this Act and other Acts and subordinate statutes. However, the term “applicable mutatis mutandis to similar matters” is a concept used when it is intended to avoid a daily provision on a daily basis in accordance with other Acts and subordinate statutes. However, there is no separate provision on the payment of refund payments and additional dues due to the cancellation of distribution disposition under the Local Tax Act, so the Framework Act on National Taxes and the National Tax Collection Act

Article 81(5) of the National Tax Collection Act provides that "the head of a tax office shall pay the amount apportioned or appropriated to creditors which take precedence over the national tax refund in cases where he/she preferentially distributes or appropriates the amount of delinquent taxes due to mistake in distribution order, unreasonable request for delivery or other similar reasons." Article 52 of the Framework Act on National Taxes provides that "the head of a tax office shall add an amount calculated according to the interest rate prescribed by Presidential Decree (hereinafter referred to as "additional payment on national tax") to the national tax refund taking into account the period from the date of payment of the national tax when he/she pays the national tax to the date of appropriation or the deposit interest rate of financial institutions until the date of payment of the national tax or when he/she makes a decision to appropriate it to the national tax refund." It is a series of procedures to determine the amount of money acquired through the procedure for disposition on default, such as the proceeds from the sale of attached property, to the tax office and the head of a tax office having jurisdiction over the procedure for the imposition of taxes can be seen as the process of attaining the specific purpose of the national tax refund or other equivalent reasons.

(2) The subject and scope of the additional charges

(A) The subject of the additional charges

The additional dues should be paid by a person who was the subject of the benefits of refund, so the obligation to return the additional dues should be determined depending on whether the refund was the original Gu tax, market price, and national tax.

However, among the revocation of the allocation disposition of this case against the defendant Yeongdeungpo-gu, the distribution disposition of this case was included in KRW 810,218,90,00 which was entrusted by the Seoul Metropolitan Government, and the revocation part of the allocation disposition of this case against the defendant Mapo-gu was the market price that the entire refund amounting to KRW 420,849,80 was received under the entrustment of the Seoul Metropolitan Government.

Therefore, the plaintiff's primary argument seeking additional dues against the defendant Yeongdeungpo-gu and Mapo-gu is without merit, and the defendant Yeongdeungpo-gu and Seoul Metropolitan Government seek additional dues on the Gu tax portion against the defendant Yeongdeungpo-gu, and the plaintiff's primary argument seeking additional dues on the market price refund entrusted to the defendant Yeongdeungpo-gu and Mapo-gu as to the defendant Seoul Metropolitan Government is with merit.

(B) Scope of additional charges

As seen earlier, around January 5, 2006, Defendant Yeongdeungpo-gu determined to pay refunds around January 24, 2006, and around January 24, 2006, Defendant Yeongdeungpo-gu included the total amount of KRW 1,231,068,70 (the original amount ordered to be paid by a judgment is KRW 1,231,065,103; KRW 810,218,900; KRW 420,849,800 (the original amount ordered to pay in the above judgment is KRW 420,846,403); KRW 161,490; KRW 208; KRW 160; KRW 360; KRW 160; KRW 160; KRW 250; KRW 160; KRW 360; KRW 165,50; KRW 30; KRW 160; and KRW 405,50; and KRW 165,510.5.

Therefore, the amount of refund which is the basis for calculating the additional dues to be paid by the Defendants is 1,180,449,593 won [1,231,065,103 won (the amount of the previous judgment) -50,615,510 won], and the defendant Yeongdeungpo-gu is 129,870,174 won [161,490,814 won (the amount of the previous judgment) - 27,345,170 won - 2,537,840 won - 2,537,840 won - 1,736,90 won];

Meanwhile, according to Article 52 of the Framework Act on National Taxes, the starting date of additional dues is stipulated as “the date following the date of payment, etc. to the date of appropriation or decision of payment,” and the fact that the Defendant received the distribution of the proceeds of public auction on December 28, 2001, as seen earlier. Therefore, the Defendant is obliged to pay to the Plaintiff the total amount of the Defendant, Yeongdeungpo-gu, the total amount of KRW 22,954,552, the Defendant Seoul Special Metropolitan City, and the total sum of KRW 206,401,609, and delay damages therefrom, as determined by the Presidential Decree, by taking into account the deposit interest rates of financial institutions from the following day after the date when the Defendant received the distribution of the proceeds of public auction on the basis of the instant disposition.

(4) Sub-determination

Therefore, Defendant Yeongdeungpo-gu is obligated to pay 22,954,552 won in total, 206,401,609 won in total to Defendant Seoul Metropolitan Government, and 206,401,609 won in total to the Plaintiff after the date of the final decision to pay the refund money, and to pay 5% of the annual amount under the Civil Act from March 18, 2006 to October 26, 2007, which is the date of the final decision of the appellate court, to dispute the existence and scope of the Defendant’s obligation to pay the amount by each ratio of 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full

3. Conclusion

If so, the plaintiff's claim is accepted within the above scope of recognition, and the remainder is dismissed as it is without merit. The judgment of the first instance court is unfair because it is unfair to conclude it, and it is so decided as per Disposition.

Judges Kim Byung-chul (Presiding Judge)