The meaning of "payment deadline" among the Constitutional Court's decision of unconstitutionality on the part of "one year from" in the main sentence of Article 31 (2) 3 of the former Local Tax Act.

The Constitutional Court ruled on November 25, 1991 that "one year from the date" in the main sentence of Article 31 (2) 3 of the former Local Tax Act (amended by Act No. 4415 of Dec. 14, 1991) as "one year from the date" is unconstitutional, the priority of local tax claims should be limited on the basis of the existence or absence of the tax to be paid by the person who has established the security interest and the time when the person who has secured the security interest can measure the amount of the tax, and the time limit should be the last time to confirm the existence and amount of the tax to be paid by the person who has secured the security interest."

Article 31(2)3 of the Local Tax Act, Article 31(2)3 of the former Local Tax Act (amended by Act No. 4415, Dec. 14, 1991)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gong6, Law Firm Gong1992, Law No. 867 delivered on January 17, 1992)

Constitutional Court Decision 91Hun-Ga6 decided Nov. 25, 1991 (Hun-Ga3, 569)

Kim Man-o et al.

Busan Cheong-gun

1. Of the distribution schedule prepared on September 16, 1993 by a party member with respect to the case of voluntary auction application of 93 YY 684, the dividends of 32,926,160 won against the defendant, 29,593,086 won, 42,256,993 won, 11,837,282 won, 16,902,845 won, 2,99 won, 4,225,689 won, 2,307 won, 2,959,307 won, 4,2225,307 won, 307 won, 4,225,697 won, and 11,837,282 won, 36,697 won, 325, and 4,697 won, respectively, for the plaintiff's decision.

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

The same shall apply to the order.

1. Basic factual basis

The following facts may be admitted either in dispute between the parties or in accordance with the whole purport of the pleading:

A. On August 191, 191, the plaintiffs contributed 40 million won, 10,000 won, 10,000 won, 10,000 won, 2.60,000 won, in total, to the non-party limited partnership company, Hansung-dong Co., Ltd. (the limited partnership company was changed to the single house; hereinafter the non-party company was changed to the non-party company) and jointly acquired the mortgage of this case by setting the due date as November 13 of the same year. Accordingly, as security, the Changwon District Court was received on August 26, 191, 6506 on the real estate listed in the attached list of the non-party company owned by the debtor company as a contract for establishing the mortgage of this case with the maximum debt amount of KRW 45,50,000,000,000,000,000,000 won, and the cause of the establishment of the mortgage of this case.

B. Meanwhile, the non-party company newly constructed one new apartment unit (hereinafter the apartment unit of this case) on the 741st ground located in Gyeong-gun, Gyeong-gun, Gyeong-gun, Gyeong-gun, Busan, and completed an inspection of completion on July 19, 191, and received an inspection of completion. The defendant Gun issued an inspection of completion on September 28, 199, on the ground that the non-party company reported the tax base of acquisition tax on deemed acquisition due to the change of land category of the apartment site of this case and the original acquisition of the apartment of this case within 30 days from the date of acquisition, or did not voluntarily pay acquisition tax, on the ground that the non-party company filed a report on the tax base of acquisition tax or did not voluntarily pay acquisition tax, pursuant to Articles 112, 120, and 121 of the Local Tax Act.

C. The plaintiffs, the co-owners of the instant right to collateral security, were unable to receive the principal and interest of the said loan from the non-party company until the due date for payment of the said loan, and on February 3, 1993, filed an application for voluntary auction on the real estate stated in the attached list, which is a joint collateral, and the auction procedure was conducted as the party members of this case. On May 23, 1993, the party members of the Auction Act permitted the successful bid of KRW 113,640,000 for the price to the plaintiffs, who are the creditors who applied for auction on May 23, 199, and further designated the date

D. On September 16, 19 of the same year, the date of payment and the date of distribution, the auction court: (a) prior to the request for the issuance of acquisition tax of KRW 26,340,930 as well as additional dues of KRW 6,585,230 as above; and (b) KRW 32,926,160 as well as additional dues of KRW 32,926,160 as above (hereinafter referred to as the local tax of this case) was prior; (c) distributed the local tax of this case to the Defendant in the first priority order among KRW 109,868,220, which was deducted the execution expenses from the successful bid price on the ground that the local tax of this case constitutes a tax claim priority over the secured claim of the mortgage of this case; and (d) set up and presented a distribution schedule to the Plaintiffs, who are the creditors requesting the auction of this case and the creditors requesting the auction of this case, to distribute each amount in proportion to the amount loaned.

2. Key issues (whether priority is given to the right to collateral security of this case’s local tax claim);

A. Provisions of the Local Tax Act;

(1) Provisions of the former Local Tax Act

According to Article 31 of the former Local Tax Act (amended by Act No. 4415, Dec. 14, 1991; hereinafter the same), a local government’s money collectible shall be collected in preference to public charges (referring to claims that may be collected in the same manner as delinquent taxes are collected), and other claims, except as otherwise provided for on the whole property of a person liable for tax payment or a person liable for extraordinary collection: Provided, That the same shall not apply to other money collectible by a local government, national taxes, and additional dues and expenses for disposition on default. The principle of priority of local taxes is set forth in the main sentence of Article 2(3) of the same Act, which provides that “The claims secured by the right to lease on a deposit basis, pledge or mortgage established one year prior to the due date for local taxes and additional dues are claims secured by sale or mortgage of property which is the object of the right to pledge,

(2) Constitutional Court's decision of unconstitutionality as to the main sentence of Article 31 (2) 3 of the former Local Tax Act

On November 25, 1991, the Constitutional Court made a decision of unconstitutionality on the ground that "one year from the date" in the main sentence of Article 31 (2) 3 of the former Local Tax Act is "one year from the date of application for the unconstitutionality of the Korean Constitutional Court's 91 Constitutional Court's 91 Constitutional Court's 91 Constitutional Court Decision 91Hun-Ga6, on the ground that "It is so that the security right is entirely unable to function as a security because the security right takes place after the security right established and publicly notified comes to fall short of the priority due to a tax claim which does not have any public notice."

On the other hand, when the Constitutional Court makes a decision of unconstitutionality, priority of local tax claims should be limited on the basis of the existence of taxes to be paid by the person who has established the security right and the time when the person who has acquired the security right can measure the amount of such taxes. In addition, when considering the provisions on the tax payment deadline under the General Rule 4-1-3.35 (Deadline for Payment) of the Framework Act on National Taxes, it is reasonable to view that the payment deadline for acquisition tax refers to the payment deadline for the tax payment designated in the tax payment notice, not the statutory due date for 30 days from the date of acquisition under Article 120 of the Local Tax Act, as long as the person who has the security right fails to report the tax base and the amount of such taxes even though the method of determination of acquisition tax is the method of return and payment, so long as the person who has the security right does not report the tax base and the amount of such taxes.

(3) Provisions of the current Local Tax Act

As above, Article 31(2)3 of the current Local Tax Act (amended by Act No. 4415, Dec. 14, 1991; effective from January 1, 1992; hereinafter referred to as the "Local Tax Act") provides that where local tax and additional dues are collected from the proceeds of the sale of property which is the object of the right of lease on a deposit basis, the right of pledge, or the right of pledge, or the right of mortgage, the right of lease on a deposit basis, the right of pledge, or the right of mortgage shall be determined by prescribing the priority thereof after the date on which the right of lease on a deposit basis, the right of pledge, or the right of mortgage is established.

(b) Markets:

(1) In this case, if the former Local Tax Act is applied, the provisions of the above Local Tax Act on whether the future effect of the decision of unconstitutionality of the above Constitutional Court affects the future effect of the decision of unconstitutionality of the above Local Tax Act are limited to the fact that local taxes can be repaid in preference to other claims in the procedure of voluntary auction or compulsory auction, and the priority order is finalized when the disposition of realization under the above procedure is terminated (see Supreme Court Decisions 91Da42524, Jan. 17, 1992; 91Da42524, Jan. 17, 1992). Thus, in this case, as long as the realization disposition or distribution procedure continues, the effect of the decision of unconstitutionality of the above case under

(2) Whether the former Local Tax Act and the Local Tax Act should be applied

In revising the former Local Tax Act as above, Article 4 (General Transitional Measures) of the Addenda to the former Local Tax Act only provides that "any local tax imposed, reduced, or exempted under the previous provisions at the time this Act enters into force shall be governed by the previous precedents," and there is no provision on how to apply Article 31 (2) 3 of the amended Local Tax Act. Since the above provision under the former Local Tax Act is more unfavorable than that under the former Local Tax Act after the decision of unconstitutionality, the Local Tax Act shall not be applied in accordance with the principle of prohibition of retroactive legislation and shall be first determined under the former Local Tax Act after the decision of unconstitutionality (see, e.g., Supreme Court Decision 89Meu13155, Jul. 10, 190).

(3) Priority of the instant collateral security

The date of establishment of the mortgage right of this case was August 16, 191. As seen earlier, as long as the tax claim is determined by the method of imposition due to the taxpayer's failure to file a voluntary report, even if the tax claim is determined by the method of imposition, the payment period of acquisition tax, which is the local tax of this case, shall be changed by the due date for payment designated in the tax payment notice. Therefore, as long as the date of establishment of the mortgage right of this case under the former Local Tax Act after the decision of unconstitutionality is earlier than the due date of the local tax of this case, the plaintiffs' secured debt secured by the mortgage of this case shall be priority over the local tax claim of this case.

3. Conclusion

Since the plaintiffs have the right to receive dividends in preference to the local tax of this case, the distribution schedule prepared by the auction court on the premise that the defendant's tax claim takes priority over the plaintiffs' secured claim in 93 Mata and 684 is illegal.

Therefore, among the distribution schedule prepared by a member of the auction court on September 16, 1993 with respect to the case of voluntary auction application, KRW 32,926,160 for the defendant among the dividend table prepared by the members of the auction court on September 16, 1993, the dividends amounting to KRW 32,926,160 for the defendant is as shown in the separate calculation sheet, and if the dividends amounting to KRW 29,593,086 for each of the dividends amounting to the plaintiff Kim Yong-o and the highest order is distributed in proportion to the amount of each claim of the plaintiffs who are the right to collateral security holders, the dividends amounting to KRW 42,256,93,993, KRW 11,837,282 for the plaintiff Kim Young-young, KRW 16,902,845, KRW 2,959, KRW 29,299 for the plaintiff Kim Young-dong, and KRW 2,959,25,69.

If so, the plaintiffs' claim of this case is legitimate and acceptable (attached Form omitted).

Judges Yoon Jin-su (Presiding Judge)