Plaintiff

Seongbuk-gu, Daejeon Metropolitan City (Law Firm private interest rate, Attorneys Ansan-do et al., Counsel for defendant-appellant)

January 12, 2017

Daejeon District Court Decision 2015Da27559 Decided July 28, 2016

1. Revocation of a judgment of the first instance;

2. Of the distribution schedule prepared by the said court on July 28, 2015 with respect to the distribution procedure case of Daejeon District Court 2015 another 34, the dividend amount of KRW 28,415,720 against the defendant shall be corrected to KRW 0, and KRW 432,189,020 against the plaintiff shall be corrected to KRW 460,60,740, respectively.

3. All costs of the lawsuit shall be borne by the defendant.

The judgment of the court of first instance is revoked. The amount of 432,189,020 won against the plaintiff in the Daejeon District Court's distribution procedure case 2015TTTT 34,720 won in the dividend table prepared on July 28, 2015 and the amount of 28,415,720 won against the defendant shall be corrected to 460,604,740 won, and the amount of 28,415,720

1. Basic facts

A. Establishment of ownership relation of each of the instant lands and right to collateral security

1) On November 3, 2009, the Plaintiff completed the registration of ownership transfer on October 9, 2009 with respect to the land of 1,471 square meters prior to Daejeon Seo-gu ( Address 2 omitted) (hereinafter “land prior to subdivision”). On January 17, 2012, the said land was divided into the land of 1,211 square meters ( Address 2 omitted) of Daejeon Seo-gu ( Address 2 omitted) and the land of 260 square meters ( Address 2 omitted) of Daejeon Seo-gu ( Address 3 omitted), and the land of 1,211 square meters ( Address 3 omitted) of Daejeon Seo-gu ( Address 3 omitted) combined with the said ( Address 2 omitted).

2) Meanwhile, on July 22, 2005, the registration of creation of a mortgage was completed on the land before subdivision, which was the maximum debt amount of KRW 260,000,000,000, and the registration of creation of a mortgage was completed on the land ( Address 3 omitted) with respect to the land ( Address 3 omitted), with the maximum debt amount of KRW 960,000,000,000, and the non-party to the right to collateral security, which was the non-party to the right to collateral security.

B. Imposition of enforcement fines, etc. against the plaintiff

The details of imposition of enforcement fines and imposition of administrative vicarious execution expenses against the plaintiff by the head of the Seo-gu Daejeon Metropolitan City shall be as follows:

The disposition of imposing enforcement fines on April 23, 2012, the amount of 54,00 won on April 23, 2012; the disposition of imposing enforcement fines on May 20, 2012; the disposition of imposing enforcement fines on December 26, 2012; the disposition of imposing enforcement fines on December 26, 2012; the disposition of imposing enforcement fines on October 26, 2013; the disposition of imposing enforcement fines of KRW 2,032,630; the disposition of imposing enforcement fines of KRW 1,680,000 on October 8, 2013; the disposition of imposing enforcement fines of KRW 130,000 on January 24, 2014; the disposition of imposing enforcement fines of KRW 8,892,00,000 on June 9, 2014; the disposition of imposing enforcement fines of KRW 12,003,00,008; and

(c) Progress of land expropriation and distribution procedures;

1) On November 16, 2012, the Defendant decided and publicly announced an urban management plan (parking lot) and a topographic map that expands the parking lot at the entrance of the mountain mountain and mountainside in Daejeon Pungdong-gu, Daejeon ( Address omitted) pursuant to Article 2012-113 of the Seongbuk-gu, Daejeon (hereinafter “instant public notice”), and each of the instant land owned by the Plaintiff was included in the land to be expropriated in the urban management planning project pursuant to the said public notice.

2) On March 19, 2015, the Land Tribunal of Daejeon Metropolitan City rendered a ruling to expropriate obstacles to each of the instant land and the above land surface. With respect to the Plaintiff’s claim for the expropriation compensation against the Defendant, the head of Daejeon Metropolitan City basin shall seize KRW 28,585,830, out of enforcement fines imposed upon the Plaintiff and expenses for vicarious administrative execution (hereinafter “instant seizure”), and notify the Defendant (the head of traffic division) who is a third party debtor of the attachment on April 3, 2015.

3) On April 22, 2015, the Defendant deposited KRW 662,043,100 for the Plaintiff’s expropriation compensation in enforcement with the Daejeon District Court Decision 2015 Daejeon District Court (Seoul District Court Decision 1980). On April 23, 2015, the transfer registration of ownership in the name of the Defendant was completed for each of the instant land on April 23, 2015.

4) On July 28, 2015, Daejeon District Court No. 2015Ma34 (hereinafter “instant distribution procedure”), the distribution procedure was commenced. Of the amount to be actually distributed as of July 28, 2015, the distribution schedule was formulated in order of 662,181,29 to the Defendant, who is a seizure authority, for the Cheongju Credit Union in the order of 201,576,559 won, and 201,559 won, and 3rdju Credit Union, the entire holder of the attachment authority, for the Plaintiff, to distribute each surplus of 432,189,020 won (hereinafter “instant distribution schedule”).

5) On July 28, 2015, the Plaintiff appeared on the date of distribution of the instant distribution procedure and raised an objection against the Defendant regarding the whole amount of dividends.

(d) Progress of the relevant case;

(i)an action to confirm the invalidity of a public notice.

On June 12, 2014, the Plaintiff filed a lawsuit seeking confirmation of invalidation of the instant public notice against the head of the Seo-gu Daejeon District Court 2014Guhap102424, Daejeon Metropolitan City U.S., but the said court rendered a judgment dismissing the Plaintiff’s claim on October 8, 2015. While the Plaintiff filed an appeal and a final appeal, all of the appeals and final appeals were dismissed, and the said judgment became final and conclusive as they were (Seoul High Court 2015Nu10320 and Supreme Court 2015Du55509).

2) Action for damages

The Plaintiff filed a lawsuit seeking compensation against the Defendant on July 9, 2014 on the ground that the Defendant neglected a large number of foods, flowerss, and beverages as they were, while carrying out administrative vicarious execution on August 2, 2013, and caused corruption by neglecting them as they were. The Defendant’s enforcement officer incurred damages to the Plaintiff by destroying the house equipment, fixtures, etc. in the course of transferring the house equipment, fixtures, etc., but the said court rendered a judgment dismissing the Plaintiff’s claim on November 5, 2014. The Plaintiff filed an appeal and appeal, but all of the appeals and appeals were dismissed, and the said judgment became final and conclusive (Seoul High Court Decision 2014Na14045, Supreme Court Decision 2016Da246121).

(3) Action to revoke the imposition of enforcement fines or expenses for vicarious administrative execution.

A) On October 5, 2012, the Plaintiff filed a lawsuit seeking revocation of the imposition of enforcement fines of KRW 12,017,00,00 against the Plaintiff on May 20, 2012 by the Daejeon District Court Decision 2012Guhap4274, Daejeon District Court (Seoul Daejeon District Court Decision 2012, May 20, 2012, the said court rendered a judgment dismissing the Plaintiff’s claim on July 24, 2013, and the said judgment became final and conclusive upon all dismissal of the Plaintiff’s appeal and appeal ( Daejeon High Court Decision 2013Nu1308; Supreme Court Decision 2014Du2492).

B) On January 20, 2015, the Plaintiff filed a lawsuit seeking revocation of the imposition of enforcement fines of KRW 2,001,350 against the Plaintiff on October 28, 2014 by the Daejeon District Court Decision 2015Guhap211, which was rendered by the head of Seo-gu Daejeon District Court, on January 20, 2015, but the said court rendered a judgment dismissing the Plaintiff’s claim on April 27, 2016, and the said judgment became final and conclusive on May 14, 2016 because the Plaintiff did not file an appeal.

C) On January 20, 2015, the Plaintiff filed a lawsuit seeking revocation of the disposition of imposition of expenses for vicarious administrative execution (8,892,000 won against the Plaintiff on June 9, 2014 by the Daejeon District Court Decision 2015Guhap204, Daejeon District Court Decision 2015, the Plaintiff filed a lawsuit seeking revocation of the disposition of imposition of expenses for vicarious administrative execution (8,892,000). However, the said court rendered a ruling dismissing the Plaintiff’s claim on November 30, 2016, and the said judgment became final and conclusive on December 16, 2016 due to the Plaintiff’

[Ground of recognition] Facts without dispute, Gap evidence 1 through Gap evidence 3, Gap evidence 6, Gap evidence 8, Eul evidence 2 through Eul evidence 15, the purport of whole pleadings

2. Determination as to the cause of action

A. Judgment on the Non-Party’s assertion

1) Summary of the Plaintiff’s assertion

The Defendant received dividends of KRW 28,415,720 from the seizure of this case by allowing the Nonparty to not receive dividends from the distribution procedure of this case, even though the Nonparty, who was an interested party, was obligated not to inflict damages on the Nonparty, who was the party to the right to collateral security, while accepting the land. The distribution procedure of this case was distributed to the Defendant in violation of the principle of the administrative agency’s trust protection and the good faith principle,

2) Relevant legal principles

2) The exercise of the mortgagee's subrogation right under Articles 370 and 342 of the Civil Procedure Act recognizes the existence of the mortgagee's right and the amount of the secured obligation under Article 73 of the Civil Procedure Act by submitting a document evidencing the existence of the secured right to the court of execution in accordance with Article 733 of the Civil Procedure Act, and applying for a seizure of the claim and an order in whole, or a demand for distribution under Article 580 of the Civil Procedure Act. This shall be made at the latest by the deadline for the completion of the demand for distribution under Article 580 (1) of the Civil Procedure Act. The mortgagee's subrogation right shall be exercised by the mortgagee's own way of clearly expressing the mortgagee's intent to exercise the right to exercise the right to exercise the right to exercise the mortgage to another creditor who is not the mortgagee or a third debtor, and even if the third debtor reports the amount of the debt to the court and submits the document evidencing the existence of the mortgage as the mortgagee's deposit, it can only be viewed as having been made by the mortgagee's deposit or 198.

3) Determination

However, as seen earlier, the Nonparty, who is the mortgagee of the land, did not exercise the subrogation right by seizing the claim for compensation for the said land before the Defendant reported the reason for deposit, or by demanding a distribution, etc. In addition, according to the description in the distribution procedure of the instant case No. 1-2, the Defendant sent a notice to the Nonparty on April 16, 2015, stating that “the Nonparty is expected to deposit the compensation for expropriation against the Plaintiff, and the withdrawal of necessary measures, such as seizure, is possible,” and there is no evidence to deem that the Nonparty was seized the instant land for the purpose of allowing the Nonparty not to pay dividends to the Nonparty. Accordingly, the Plaintiff’s assertion in this part is not acceptable.

B. Determination on the defect in the disposition imposing enforcement fines

1) Summary of the Plaintiff’s assertion

Since the imposition of enforcement fines, which served as the basis for the seizure of the instant case, has a serious and apparent defect, such as forging and preparing the Plaintiff’s violation, it is unlawful to distribute dividends to the Defendant based on the instant seizure disposition during the instant distribution procedure.

2) Relevant legal principles

As long as a taxation disposition cannot be seen as null and void as a matter of course, even if there is an unlawful ground for revocation of the taxation disposition, such taxation disposition shall be valid until it is lawfully revoked by the fairness and executory power of the administrative act, so the validity of the above taxation disposition in civil procedure shall not be denied (see Supreme Court Decision 99Da20179 delivered on August 20, 199, etc.).

3) Determination

In light of the above legal principles, in light of the progress of the lawsuit seeking revocation of the disposition imposing charges for compelling execution and expenses for vicarious administrative execution as seen earlier, it is insufficient to view that the statement of evidence No. 4 alone as to the disposition imposing charges for compelling execution or the disposition imposing expenses for vicarious administrative execution, which served as the basis for the seizure of this case, is null and void due to serious and apparent defects, and there is no other evidence to acknowledge this otherwise. Accordingly, the Plaintiff’

C. Determination on the validity of acceptance and the defendant's obligation to compensate for damages

1) Summary of the Plaintiff’s assertion

2) The expropriation of each of the instant lands is null and void, and rather, the Defendant is obligated to compensate the Plaintiff for damages, so it is unlawful to distribute the land to the Defendant in the instant dividend procedure.

3) Determination

4) We do not have any evidence to acknowledge that the expropriation of each of the instant lands and the obstacles thereto is null and void, or that the Defendant is liable to compensate the Plaintiff for damages. Furthermore, even if the Plaintiff has a separate claim for damages against the Defendant, it cannot be said that the Defendant received dividends based on the instant seizure. Accordingly, the Plaintiff’s assertion on this part cannot be accepted.

D. Determination on the assertion regarding the validity and scope of the instant seizure

1) Summary of the Plaintiff’s assertion

A) The Defendant did not prepare a attachment report regarding the instant attachment, and did not deliver a certified copy thereof to the Plaintiff, and the said attachment is null and void due to a serious procedural defect.

B) In addition, the instant seizure is against the principle of clarity by erroneously designating the owner of indemnity bonds as the Ministry of Land, Infrastructure and Transport, and is contrary to the principle of clarity, and is limited to indemnity bonds for the obstacles to the above ground, not to the land compensation for each of the instant land. Therefore, it is unlawful for the Defendant to receive distribution of indemnity bonds for each of the instant

2) Relevant legal principles

In a case where a tax official notifies a third party obligor that he/she prohibits the attachment of a claim as a disposition for arrears and the obligation to a delinquent taxpayer is essential in the attachment of a claim, and in absence of this, the attachment of the claim is null and void. However, the attachment report does not include the participant's statement and signature and seal pursuant to Article 28 of the National Tax Collection Act, or the delinquent taxpayer's address in the attachment report or the notification of the attachment of a claim does not coincide with the address in the register of register, and the claim for transfer registration of ownership to other land than the target land is stated in the indication column of the notification of attachment to the delinquent taxpayer, or it does not constitute a minor procedural error that does not constitute an essential element of the attachment, such as whether a certified copy of the attachment report was issued to the delinquent taxpayer (see Supreme Court Decision 8Da19033, Nov. 14, 1989).

(iii) the relevant provisions;

The provisions of the attached Table shall be as shown in the attached Table.

4) Determination

In light of the following circumstances, the Defendant’s failure to prepare the attachment report at the time of the instant attachment is without dispute between the parties. In other words, the attachment report is subject to the obligation to prepare under the National Tax Collection Act and the Act on the Collection of Local Non-Tax Revenue, and its preparation is not at the discretion of an administrative agency, and in case of the attachment of corporeal movables, unlike the attachment of which the scope of attachment is clearly specified by sealing or by other means, if the attachment report is not prepared, it is difficult to specify the object of attachment as in the instant case if it is difficult to identify the object of attachment as in the instant case (Evidence B (Evidence No. 5), even if the Defendant sent the notice to the Plaintiff, it is difficult to view that the Defendant’s failure to prepare the attachment report at all during the instant attachment process is merely a defect in the procedure, such as omitting some items to be stated in the attachment report or omitting them, and thus, it is reasonable to deem the Plaintiff’s failure to prepare the attachment report at all without considering the Plaintiff’s defect in the procedure and scope of attachment.

E. Sub-committee

Therefore, inasmuch as dividends against the Defendant among the instant distribution schedule is unlawful as it is subject to the seizure of the instant case, the dividend amount to the Defendant is 28,415,720 won in the said distribution schedule, and 432,189,020 won in the said distribution schedule against the Plaintiff and 460,604,740 won in the amount of dividends against the Plaintiff (=432,189,020 won + 432,189,020 won in the amount of dividends of the previous Defendant + 28,415,720 won in the amount

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, so the judgment of the court of first instance shall be revoked and it shall be decided as per Disposition by the court of first instance to correct the dividend

[Attachment]

Judges Choi Jin-su (Presiding Judge)