Whether the exercise of a transfer security interest in composition procedures constitutes the supply of goods under the Value-Added Tax Act.

Since it is reasonable to view that a mortgagee has the right to exercise the right to separation under the Composition Act, when a person who is entitled to exercise the right to separation under the Composition Act has the right to exercise the right to separation, barring special circumstances such as explicitly waiver of the right, etc., the person who has the right to exercise the right to separation under the Composition Act has the right to exercise the right in excess of the recommendation

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

Suwon District Court Decision 99Gu5948 delivered on June 14, 2000

1. The plaintiff's appeal is dismissed.2. The costs of appeal are assessed against the plaintiff.

1. Details of the instant disposition

The following facts do not conflict between the parties, or can be acknowledged by comprehensively considering the whole purport of the pleading in the descriptions of Gap evidence 1, 2, 3-1, 3-2, 6-1 through 9, Gap evidence 12-1, 2, Eul evidence 1-1 through 3, Eul evidence 7-1 through 7-3, and there are no objections.

가. 원고는 1997. 12. 10. 소외 ㅇㅇ파이낸스 주식회사(이하 소외 회사 라 한다)와의 사이에 소외 회사로부터 대출받은 대출금채무(이하 이 사건 대출금 이라 한다)의 담보목적으로 원고 소유 별지 목록 기재 각 부동산(이하 이 사건 부동산 이라 하고, 그 중 순번 9. 기재 건물을 이 사건 건물 이라 한다)에 관하여 매매예약을 체결한 후 소외 회사 앞으로 담보가등기를 경료하여 주었고, 같은 달 16. 같은 일자 매매를 원인으로 한 소유권이전등기를 경료하여 주었다.

B. On December 16, 1997, the Defendant: (a) considered that the registration of ownership transfer was made with respect to the instant building on December 16, 1997 as the transfer of ownership due to the exercise of security rights by the non-party company; and (b) on September 5, 1998, as at the time of December 16, 1997, as to the Plaintiff, 1.48 billion won as to the Plaintiff’s loan obligations to the non-party company as the value of the instant real estate; and (c) calculated by dividing the amount (793,607,317 won) calculated by the ratio of the value of the portion of the building to the value of the building to the value of the real estate; and (d) assessed by the ratio of the portion of the building (793,607,317 won) as the value-added tax (15,872,147 won as well as the additional tax to be submitted by the seller; and (d) notified the amount

C. On February 16, 200, the Defendant revoked the initial imposition of value-added tax ex officio on the ground that the time when the ownership of the building of this case was transferred to the non-party company on November 16, 1998, and determined that it was wrong on December 16, 1997, notwithstanding the time when the ownership was transferred to the non-party company, and imposed value-added tax equivalent to the amount of the initial imposition of value-added tax on the ground that only the year to which the value-added tax belongs was corrected as the second period for 1998, and imposed and notified (hereinafter the instant

2. The plaintiff's assertion

For the following reasons, the instant building is owned by the Plaintiff, and thus, the instant disposition of imposition based on the premise that the instant building was transferred to the non-party company is unlawful.

A. On September 16, 1998, the non-party company notified the Plaintiff of the exercise of a security right in accordance with Articles 3 and 4 of the Provisional Registration Security Act (the Act on the Security of Provisional Registration, Etc.). However, at the time of the above notification, the non-party company assessed the appraised value of the real estate for the purpose of security to be excessively low, thereby notifying the non-party company of the implementation of the contents that are excessively low in the amount of the liquidation amount. Thus, the above notification is not effective as

Therefore, the registration of transfer of ownership in the name of the non-party company in the name of the non-party company to the building of this case is not completed with the procedure of liquidation as prescribed by the Act on Participation in the Building of this case, and the ownership of this case is only effective as a security for transfer in a weak sense

B. The plaintiff received the commencement decision from the Seoul District Court on May 20, 1998. The non-party company reported the loan claim of this case as composition claim on June 11, 1998, and in the decision of approval of composition on June 24, 1998 to the plaintiff of Seoul District Court, the repayment period for the loan claim of this case of the non-party company was postponed since 2002.

Therefore, the notice of the execution of the security right to the real estate of this case issued by the non-party company on September 16, 1998 under the Act on the part of the plaintiff on the part of September 16, 1998 is limited to the situation where the due date for the secured claim does not arrive, and thus, the ownership of the

C. On December 16, 1997, the Plaintiff paid various taxes and public charges, such as property tax, aggregate land tax, electricity charges, etc., imposed on the instant real estate until now, the non-party company did not claim the Plaintiff rent for the instant real estate, and the Plaintiff was decided to commence the composition from the Seoul District Court on May 20, 198. In full view of the fact that the non-party company reported the instant loan claim as composition claim on June 11, 1998, the Plaintiff still owns the instant building. Even if the notice on the execution of the above security right was valid, the non-party company confirmed that the instant real estate was owned by the Plaintiff and withdrawn the declaration of intention to liquidate in accordance with the notice on the execution of the security right. Thus, the real estate of this case is still owned by the Plaintiff.

3. Relevant statutes;

Attached Form is as shown in the attached Form.

4. Determination

(a) Facts of recognition;

The following facts may be acknowledged in light of the evidence mentioned above, Gap evidence Nos. 7 and 10-3, Eul evidence Nos. 5-1, 2, Eul evidence Nos. 5-2, Eul evidence Nos. 6-1, 2, 3, Eul evidence Nos. 10-1, 10-2, and 10-2, and there are no objections.

(1) On December 10, 1997, the non-party company received provisional registration for the purpose of security from the plaintiff on the real estate of this case, and received the registration of ownership transfer on December 16, 1997 under the agreement with the plaintiff without going through liquidation procedures prescribed in the Act on Participation in the Exercise of Security Rights.

(2) 원고가 1998. 5. 20. 서울지방법원으로부터 화의개시결정을 받자, 소외 회사는 이 사건 부동산에 관하여 근저당권을 설정한 소외 ㅇㅇ은행의 피담보채권을 고려하면 소외 회사가 이 사건 부동산에 관하여 담보권을 실행한다고 하더라도 이 사건 대출금채권을 변제받을 수 없다고 판단하여, 1998. 6. 11. 서울지방법원에 이 사건 대출금의 원리금 1,720,832,875원을 화의채권으로 신고하였는데, 위 신고 당시 우선변제권을 포기하는 취지의 기재를 한 바 없다.

(3) On June 24, 1998, the Seoul District Court decided on June 24, 1998 that the principal of composition claims against a financial institution with no security interest shall be repaid equally at the end of each quarter from 2002 to 2006.

(4) 소외 회사는 1998. 9. 16. 내용증명우편으로 원고에게 당시 이 사건 부동산의 평가액이 1,896,225,300원(건물평가액 : 1,233,276,300원, 토지평가액 : 662,949,000원)이고, 선순위채권액(소외 ㅇㅇ은행의 채권최고액)이 2,016,000,000원, 이 사건 대출금의 원리금이 합계 1,580,721,095원이어서 소외 회사가 원고에게 지급할 청산금이 없다는 내용의 실행통지(이하 이 사건 통지 라 한다)를 하였고, 같은 날 위 통지가 피고에게 도달하였다.

(5) 원고는 이 사건 통지에 받고 1998. 10. 13. 소외 회사에게, 원고가 1997. 12. 10. 소외 회사와의 사이에 담보가등기설정을 위하여 소외 ㅇㅇ감정평가법인에게 이 사건 부동산에 대한 감정평가를 의뢰하였을 당시 위 평가법인이 산정한 감정가액인 3,346,167,000원(토지가액 : 975,860,000원, 건물가액 : 1,370,307,000원)을 이 사건 부동산의 평가금액으로 삼고 여기에서 위 선순위채권액 및 이 사건 대출원리금을 공제하면 청산금이 (-) 250,554,095원이라고 주장하면서 소외 회사의 청산내역에 대하여 이의를 제기하였다.

(6) Even after receiving the instant notice, the Plaintiff paid taxes and public charges on the instant real estate while occupying and using the instant real estate, but did not pay rent to the Nonparty Company.

B. Sub-committee

According to the above facts of recognition, the non-party company was able to exercise the security right to the real estate of this case on November 16, 1998 after the lapse of two months from September 16, 1998 when the notification of this case was made by the non-party company, and there was no dispute between the parties that the non-party company did not have the liquidation money to be paid to the plaintiff with respect to the real estate of this case. Thus, the non-party company acquired the ownership to the real estate of this case pursuant to Article 4 (2) of the Act of Participation on November

C. Judgment on the Plaintiff’s assertion

(1) The plaintiff asserts that since the non-party company applied for the loan of this case as a composition bond, and the maturity period of the loan of this case has been postponed by the decision of approval of composition, the non-party company's notification of the exercise of security right against the plaintiff on September 16, 1998 is invalid.

However, in full view of the fact that the value of the real estate of this case is not adequate to repay the loan of this case, the non-party company reported the principal and interest of this case to the Seoul District Court on June 11, 1998 as composition credit, and there was no statement to the effect that it waives the right to preferential payment at the time of the above report, and the non-party company reported the loan of this case as composition credit pursuant to Article 43 of the Composition Act, even if it reported the loan of this case as composition credit, it cannot be deemed to have renounced the right to collateral of this case. Since claims with general preferential right are excluded from composition credit, the decision to authorize composition of the principal and interest of this case does not extend to the secured credit secured by the real estate of this case, and the effect of the decision to authorize composition of the principal and interest of this case is effective only

Therefore, despite the above decision of approval of composition, in exercising the security right to the real estate of this case, the repayment period of the secured debt should be based on the original repayment period. Thus, the plaintiff's above assertion is without merit under the premise that the repayment period of the secured debt of this case has been changed by the above decision of approval of composition.

(2) The plaintiff asserts that there is a dispute between the plaintiff and the non-party company regarding the liquidation money of the real estate of this case, the liquidation procedure for the real estate of this case has not been completed, and therefore the transfer registration of ownership in the name of the non-party company concerning the real estate

When a creditor notifies an obligor, etc. of the execution of a provisional registration security right to acquire ownership of real estate subject to security right by exercising a provisional registration security right, it is sufficient that the obligee notifies the obligor, etc. of the execution of the security right by specifying the value of the real estate subject to a subjective assessment at the time of notification given by the obligee, and the amount of the secured claim, and thereby notifying the obligor, etc. of the execution of the security right, and even if the liquidation amount assessed by the obligee does not reach the objective assessment amount, it does not affect the effect of notification of the execution of the security right or the progress of the liquidation period. However, the obligor, etc. refuses the performance of the ownership transfer registration and delivery obligation of the real estate subject to security right until the amount of liquidation amount duly assessed is paid to the obligee, and only can a claim for cancellation of the provisional registration or ownership transfer registration made for the purpose of securing the claim (see, e.g., Supreme Court Decision 92Da1043, Sep. 1, 1992).

In addition, since there is no dispute between the parties that the non-party company has no liquidation money to pay the plaintiff for the real estate of this case, the non-party company acquired the ownership of the real estate of this case after the period of liquidation expires pursuant to Article 4 (2) of the Act on Participation

(3) The Plaintiff’s payment of taxes and public charges on the instant real estate, and the non-party company did not claim a rent on the instant real estate, and the mere fact that the Plaintiff applied for the instant loan as a composition bond does not constitute the Plaintiff’s ownership of the instant real estate. Therefore, the Plaintiff’s assertion to

In addition, there is no dispute between the parties that the non-party company has not explicitly withdrawn the declaration of intention to liquidate in accordance with the notification of this case, and considering the circumstances where the plaintiff did not fully pay the rent for occupying and using the real estate of this case to the non-party company, the non-party company cannot be deemed to have implicitly withdrawn the declaration of intention to liquidate in accordance with the notification of this case on the ground that the non-party company used to pay taxes and public charges on the real estate of this case to the plaintiff. Thus, the non-party company's withdrawal

5. Conclusion

Therefore, since the ownership of the real estate of this case was transferred to the non-party company on November 16, 1998, the disposition of this case on the premise that it is legitimate and the plaintiff's claim is dismissed as it is without merit. The judgment of the court of first instance is just and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.