[1] In a case where the provisions of other Acts and subordinate statutes comprehensively and generally apply mutatis mutandis to specific matters of other Acts and subordinate statutes, the scope to which the provisions of other Acts and subordinate statutes apply mutatis mutandis

[2] Whether Article 47 (2) of the former National Tax Collection Act, which provides that an indemnity against an illegal occupant of State property may be collected by applying mutatis mutandis the provisions on disposition on default under the National Tax Collection Act, applies mutatis mutandis to Article 51 (2) and Article 25 (3) of the former State Property Act (negative)

[1] Even if a statutory provision provides that the provision on specific matters of other statutes shall apply mutatis mutandis to a specific matter, and the relevant provision shall apply mutatis mutandis in a comprehensive and general manner because it does not specify or specify the relevant provision, the provision on specific matters of other statutes shall apply mutatis mutandis only to the extent that it does not go against the nature of the matter to be governed by the statute

[2] Even if Article 51(2) and Article 25(3) of the former State Property Act (amended by Act No. 6072, Dec. 31, 1999) and Article 51(3) of the former State Property Act (amended by Act No. 7325, Dec. 31, 2004) provide for a comprehensive and general provision that an indemnity can be collected according to the procedure for disposition on default under the former National Tax Collection Act (amended by Act No. 10527, Apr. 4, 2011; hereinafter the same), it cannot be deemed that Article 47(2) of the former National Tax Collection Act (amended by Act No. 10527, Apr. 4, 201) is applicable mutatis mutandis to the disposition on default with respect to the indemnity.

[1] Article 27 of the Administrative Litigation Act / [2] Articles 25(3) (see current Article 73(2)) and 51(2) (see current Article 73(2)) of the former State Property Act (Amended by Act No. 6072, Dec. 31, 1999); Article 51(3) (see current Article 73(2)) of the former State Property Act (Amended by Act No. 7325, Dec. 31, 2004); Article 47(2) of the former National Tax Collection Act (Amended by Act No. 10527, Apr. 4, 2011)

Plaintiff (Law Firm Sejong, Attorneys Kim Ba-young et al., Counsel for the plaintiff-appellant)

Korea Asset Management Corporation (Law Firm Jin, Attorneys Lee Jong-min et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2014Nu22182 decided April 3, 2015

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Articles 51(2) and 25(3) of the former State Property Act (amended by Act No. 6072, Dec. 31, 1999); and Article 51(3) of the former State Property Act (amended by Act No. 7325, Dec. 31, 2004; hereinafter “each provision of this case”) provides that an indemnity against a person occupying State property without permission may be collected by applying mutatis mutandis the provisions on the disposition on default under the National Tax Collection Act. Meanwhile, Article 47(2) of the former National Tax Collection Act (amended by Act No. 10527, Apr. 4, 201; hereinafter the same) in the disposition on default of taxes in Chapter III of the former National Tax Collection Act (amended by Act No. 10527, Apr. 3, 201) provides that “a seizure of real estate, etc. under Article 45 shall also have the effect on the statutory due date of national taxes that became due prior to the transfer of ownership of the attached property.”

Even if a provision of a statute provides that the provision on the specific matters of another statute shall apply mutatis mutandis to a specific matter, and the provision on the specific matters of another statute shall apply mutatis mutandis in a comprehensive and general manner by not specifying or specifying the applicable provision, it is reasonable to interpret that the provision on the specific matters of another statute shall apply mutatis mutandis only to the extent that it does not go against the nature of the

Article 47(2) of the former National Tax Collection Act (amended by Act No. 1010Da50625, Jul. 26, 2012; Act No. 112135, Jan. 21, 2014; Act No. 12135, Jan. 21, 2014; Act No. 12135, Jan. 22, 2014; Act No. 12135, Jan. 21, 2014; Act No. 12135, Jan. 22, 2014; Act No. 12135, Jan. 22, 2014; Act No. 13135, Jan. 22, 2014; Act No. 13314, Feb. 22, 2014; Act No. 13308, Feb. 22, 2015>

In addition, according to Article 47(2) of the former National Tax Collection Act, the effect of the seizure is limited to the amount of delinquent taxes on the national taxes, the statutory due date of which comes due under Article 35(1) of the Framework Act on National Taxes before the ownership of the relevant attached property is transferred. However, the statutory due date of which is set under Article 35(1) of the Framework Act on National Taxes is based on the characteristics of national taxes prior to the collection order, and the priority of secured claims between national tax claims, mortgages, pledges, or chonsegwon (hereinafter “mortgage, etc.”) is determined after the statutory due date of national tax and the registration date of the establishment, registration, mortgage, etc. thereof. On the contrary, since it is difficult to determine the basic date for determining the priority between secured claims such as indemnity claims corresponding to the “legal due date” under the Framework Act on National Taxes, and thus, it is difficult to determine the time to extend the effect of the seizure, and accordingly, it is difficult to apply the provisions of Article 47(2) of the former National Tax Collection Act to indemnity.

In full view of the above circumstances, even if each of the provisions of this case provides a comprehensive and general provision that compulsory collection of indemnity can be made in accordance with the procedure for disposition on default as stipulated in the former National Tax Collection Act, such circumstance alone does not necessarily lead to the application of Article 47(2) of the National Tax Collection Act, which is a special provision for civil seizure in the procedure for disposition on default on indemnity.

2. According to the reasoning of the judgment below and the record, ① the head of Nam-gu Busan Metropolitan City (hereinafter referred to as the "head of Nam-gu") was the managing authority of Busan ( Address omitted) and 214m2 (hereinafter referred to as the "instant land"), which is general property owned by the Republic of Korea; ② the head of Nam-gu, around August 1994, owned by the deceased Non-Party (hereinafter referred to as "the deceased") on the land of this case, he did not pay damages to the deceased on the ground that he did not additionally possess the amount equivalent to KRW 27.27m27m2 (hereinafter referred to as "the instant building"), but he did not pay damages to the defendant on the ground that he did not dispose of the instant building on the ground that the deceased's 20m2 applied for the seizure of the instant building from around 16, 195 to around 207, the head of Nam-gu, Busan District Court (hereinafter referred to as "the attachment of this case") and the head of 205m27.

Examining these facts in light of the legal principles as seen earlier, since Article 47(2) of the former National Tax Collection Act does not apply mutatis mutandis to the disposition on default of indemnity, the attachment of this case is effective only to the first indemnity, and does not reach the second indemnity. Therefore, upon paying the first indemnity, the attachment of this case constitutes the requirement for the cancellation of attachment under Article 53(1)1 of the National Tax Collection Act, i.e., the requirement for the cancellation of attachment under Article 53(1)1, i.e., the “cases where it becomes unnecessary to seize it by payment,” but the disposition of this case which the Plaintiff rejected

Nevertheless, under the erroneous premise that Article 47(2) of the former National Tax Collection Act also applies mutatis mutandis to the disposition on default on indemnity, the lower court determined that the instant disposition is lawful on the ground that the attachment of the instant case extends to the second indemnity. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of application mutatis mutandis under each provision of this case, thereby adversely affecting the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)