The order of priority of the land and the disposition for arrears acquired by the provisional registration of security prior to seizure

The rejection disposition of the plaintiff's request for cancellation of attachment of this case, which became entitled to claim ownership prior to the disposition of arrears by legitimately acquiring ownership of the land of this case based on the provisional registration for security, is illegal.

The contents of the decision shall be the same as attached.

1. 피고가 1994.7.2. 원고에 대하여 한 ㅇㅇ시 ㅇㅇ동 1376의1 대 420.8㎡에 관한 압류해제거부처분을 취소한다. 2. 소송비용은 피고의 부담으로 한다.

1. Details of the instant disposition

원고는 소외 ㅇㅇ종합개발 주식회사(이하 소외회사라 한다)에 대한 금 436,350,000원의 약속어음금채권을 보전하기 위하여 1988.7.26. 소외회사 소유의 ㅇㅇ시 ㅇㅇ량동 1376의 1 대 420.8㎡(이하 이 사건 토지라 한다)를 가압류하였다가, 같은 달 29. 소외회사와의 사이에 위 채권을 담보하기 위하여 이 사건 토지에 관하여 소유권이전청구권보전을 위한 가등기를 경료하되 위 가압류는 해제하고, 소외회사가 같은 해 9.15.까지 위 약속어음금 및 그 이자와 제비용을 지급하지 아니하면 위 가등기에 기한 본등기를 경료하기로 약정한 사실, 이에 따라 원고는 같은 해 7.29. 이 사건 토지에 관하여 가등기를 경료하였다가 소외회사가 위 약정을 이행하지 아니함에 따라 1989.4.12. 원고 앞으로 위 가등기에 기한 본등기를 경료한 사실, 한편 피고(당초 ㅇㅇ세무서장이었으나 1995년에 행정구역의 변경과 함께 명칭도 변경되었다)는 소외회사에 대한 1989년 수시분 법인세등의 국세채권을 확보하기 위하여 체납처분의 집행으로 1989.1.9. 이 사건 토지에 대하여 국세확정전 보전압류처분을 하여 같은 달 12. 그 압류등기가 경료된 사실, 원고는 1994.6.28. 피고에게 이 사건 토지의 소유자임을 내세워 그에 대한 위 압류의 해제신청을 하였으나, 피고는 같은 해 7.2. 원고에 대하여 위 가등기가 담보목적의 가등기여서 그후 본등기가 이루어졌다 하더라도 위 체납처분에 대항할 수 없다는 이유로 위 압류의 해제를 거부한 사실은 당사자 사이에 다툼이 없다.

2. Determination on this safety defense

With respect to the plaintiff's revocation of the disposition rejecting the cancellation of the attachment of this case by the plaintiff's lawsuit of this case, the defendant has already been against the defendant and the plaintiff has already been lost due to the plaintiff's final decision against the defendant to cancel the attachment registration of this case, so the lawsuit of this case not only constitutes an application for reexamination as to the same case, but also the previous plaintiff's request for review has been rejected on the ground that the period for request for cancellation of the attachment registration of this case

According to the evidence evidence Nos. 4 through 7, the plaintiff filed a lawsuit against the defendant for cancellation of the above provisional registration with respect to the land of this case, and the plaintiff filed a lawsuit against the defendant for cancellation of the above provisional registration, but became final and conclusive as the plaintiff's plaque through the first instance court (Yasan District Court 90 Gahap1157 Gahap157 Gahap), the second instance court (Masan District Court 91Na3048), and the third instance court (Supreme Court 91Da4037), and it can be acknowledged that the plaintiff filed a request for cancellation of the above provisional registration against the above second instance court as Busan High Court 93Na4037, but it was dismissed. However, the lawsuit of this case is a civil suit dealing with whether the plaintiff has a right to request cancellation of the above provisional registration, and since the subject matter of the lawsuit of this case is completely different, the lawsuit of this case cannot be a obstacle to the lawsuit of this case, and the lawsuit of this case cannot be a request for reexamination as to the same issue.

In addition, according to Articles 55 and 61(1) of the Framework Act on National Taxes, a person who is dissatisfied with a disposition under this Act or other tax-related Acts may file a request for review to revoke or alter the disposition, or to make a necessary disposition. In this case, a request for review shall be filed within 60 days from the date (if a notice of disposition is received, the date of receipt) on which he becomes aware of the disposition. According to each description of subparagraphs 2 and 3 and the whole purport of pleading, the plaintiff can be recognized as having filed a request for review with the Commissioner of the National Tax Service on July 15, 1994, which is within 60 days from the receipt of the notice of the disposition in this case from the defendant on July 6, 1994, and there is no counter-proof. Thus, there is no error as argued by the defendant in the procedure

3. Determination on the lawfulness of the instant disposition

A. Article 35(2) of the former Framework Act on National Taxes (amended by Act No. 4277 of Dec. 31, 190) provides that in case where a property is seized subject to provisional registration (including provisional registration; hereinafter the same shall apply) for the purpose of preserving a claim for transfer of right on the basis of a pre-payment for which the person liable for tax payment shall be the person liable for registration and any default shall be the condition precedent, or other similar security, if the principal registration on the basis of the provisional registration is effectuated after the seizure, the person holding the right of the provisional registration shall not claim any right based on the provisional registration against a disposition for arrears to the property, unless the principal registration on the basis of the provisional registration is made after the seizure, except for the national tax and the additional dues imposed on the property).

However, in a case where the Constitutional Court rendered a registration of creation of mortgage, etc. on real estate, etc. which was the object of disposition on default in the case of Sep. 3, 1990, the part of Article 35 (1) 3 of the former Framework Act on National Taxes, which is a provision that the national tax shall be collected prior to the due date unless the establishment of mortgage, etc. is registered one year prior to the due date, shall be determined as unconstitutional. In accordance with Article 35 (1) 3 of the former Framework Act on National Taxes, Article 35 (2) of the same Act, which was amended by Act No. 4277 of Dec. 31, 1990, as well as Article 35 (1) 3 of the same Act, the part which was one year prior to the due date for payment in the case of Article 35 (2) of the same Act, was amended by Act No. 5 of the Addenda, but with respect to any national tax or additional dues for which the due date corresponding to the amended provisions of Article 35 (1) 35 (3), (2) and (1).

However, in the case of 92Hun-Ga5 on September 27, 1993, the Constitutional Court decided that Article 35 (1) 3 and Article 35 (2) of the Addenda of the above Act is unconstitutional as well as Article 5 (1) 3 and Article 35 (2) of the Addenda of the above Act was amended by Act No. 4672 on December 31, 1993. As to the national tax or additional dues collected after September 3, 1990 prior to the enforcement of this Act, the due date for payment of national taxes shall be deemed the due date for payment, and Article 35 (1) 3, (2), and Article 42 (1) of the Addenda of the above Act shall apply.

B. On the premise that Article 35(2) of the Act, which was enforced at the time of the seizure disposition for the land of this case, was the basis for the disposition of this case, the defendant asserts that the provisional registration under the name of the plaintiff was a provisional registration for the purpose of security, and cannot oppose any disposition taken to collect delinquent taxes against the defendant, which was made on the basis of the provisional registration. The Constitutional Court's decision of unconstitutionality cannot affect this case since it was made after the seizure disposition for the land of this case. Thus, the defendant asserts that the provisional registration under the name of the plaintiff did not meet the requirement of provisional registration for the purpose of provisional registration for the purpose of security, and that the disposition of this case

However, in the appeal litigation, the illegality of administrative disposition should be determined on the basis of the law and condition at the time of the disposition. Since the administrative disposition that the plaintiff seeks cancellation in this case is not a seizure disposition as of January 9, 1989 against the land of this case, but a seizure rejection disposition as of July 2, 1994, Article 35 (2) of the Framework Act on National Taxes concerning the priority relation between the provisional registration for security and the disposition for the cancellation of attachment should be applied to the revised Act enforced at the time of the disposition for the cancellation of attachment, not the old Act alleged by the defendant, and therefore, Article 35 (2) of the Framework Act on National Taxes concerning the priority relation between the provisional registration for security and the disposition for the cancellation of attachment of this case should be applied to the land of this case. Therefore, even if the provisional registration is a provisional registration for security purpose, the plaintiff may claim the right based on the provisional

In addition, Article 50 of the National Tax Collection Act provides that a third party who desires to claim ownership of the attached property and request the return of the attached property shall submit to the head of the tax office a documentary evidence verifying the ownership of the attached property five days prior to its sale, and Article 53 (1) 2 provides that the head of the tax office shall cancel the seizure in a case where the third party's claim on the ownership under Article 50 is deemed to be reasonable. However, in full view of each of the statements in the evidence No. 7 and 11, when the non-party company did not pay a promissory note, etc. by September 15, 1988, the plaintiff notified the non-party company that there is no liquidation money for the land of this case pursuant to Article 3 (1) of the Provisional Registration Security Act, and the liquidation period for the land of this case has passed by February 10, 1989. Thus, the plaintiff can be duly acquired the ownership of the land of this case.

Ultimately, the application for cancellation of the attachment of this case filed by the Plaintiff, which had been entitled to claim ownership prior to the disposition on default, by legitimately acquiring the ownership of the land of this case based on the provisional registration for provisional seizure conducted prior to the Defendant’s disposition on default, meets the requirements for cancellation of attachment under Article 53(1)2 of the National Tax Collection Act, but the disposition of this case rejected by the Defendant is unlawful.

3. Conclusion

Thus, the plaintiff's claim of this case seeking the cancellation of the cancellation of the attachment of this case is reasonable, and this is accepted, and the costs of lawsuit are assessed against the defendant who has lost. It is so decided as per Disposition.

September 27, 1995