Plaintiff (Law Firm Hao, Attorneys Lee Do-young et al., Counsel for the plaintiff-appellant)

Republic of Korea and two others (Gongdomin et al., Counsel for the plaintiff-appellant)

January 25, 2011

1. The plaintiff, the defendant Republic of Korea shall pay to the plaintiff the amount of KRW 34,906,520 as well as the amount of KRW 5,266,610 as from August 10, 201; the amount of KRW 5,266,610 as from October 7, 201 as well as the amount of KRW 5% as from February 15, 201 as well as the amount of KRW 20% as from the following day to the date of full payment.

2. The plaintiff's remaining claims against the defendant Republic of Korea and Seoul Special Metropolitan City and the defendant Gyeonggi-do are dismissed, respectively.

3. Of the litigation costs, the part arising between the Plaintiff, Defendant Republic of Korea, and Seoul Special Metropolitan City shall be borne by the Plaintiff, respectively.

4. Paragraph 1 can be provisionally executed.

The plaintiff shall pay to the defendant Republic of Korea 34,906,520 won, to the defendant Seoul Special Metropolitan City 5,266,610 won, to the defendant Gyeonggi-do 826,00 won, and to each of the above amounts, 5% per annum from December 13, 2005 to the service date of the complaint of this case, and 20% per annum from the next day to the day of full payment.

1. Basic facts

A. The Seodaemun Tax Office completed the attachment registration on October 27, 2001 with respect to the real estate of 136 square meters (hereinafter “instant real estate”) prior to the Seo-dong, Seo-dong, Seo-dong, Dong-dong, Pursuant to Article 61(1) of the National Tax Collection Act on June 27, 2005, which requested the Korea Asset Management Corporation to vicariously sell the instant real estate (hereinafter “instant public sale”).

B. The plaintiff bid for the public auction procedure of this case and decided to purchase the real estate of this case at KRW 41.3 million on September 21, 2005, and paid the price in full on November 21, 2005 but failed to obtain the qualification certificate for acquisition of farmland under Article 8 of the Farmland Act. Thus, the registration of ownership transfer was not completed due to the above sale.

C. On December 13, 2005, the Korea Asset Management Corporation deducted 1,126,870 from the sale price above, distributed 34,906,520 won in Korea, and 5,26,610 won in Seoul Special Metropolitan City, and the Plaintiff paid 826,000 won in acquisition tax following the Defendant’s disposition on imposition of acquisition tax in relation to the acquisition of the instant real estate around that time.

D. The Korea Asset Management Corporation, based on the title of debt against the non-party 1 who was acquired by the Seoul Bank from the person holding a provisional seizure right, applied for a compulsory auction on the instant real estate under this Court No. 2008, 10941, and completed the compulsory auction on May 23, 2008. In the above auction procedure, the non-party 2 was awarded a successful bid on the instant real estate and completed the registration of ownership transfer in the future.

[Ground of recognition] Facts without dispute, Gap 1 to 5 evidence (including paper numbers), the purport of the whole pleadings

2. Determination as to the claim against Defendant Republic of Korea and Seoul Special Metropolitan City

A. Return of unjust enrichment

Even if the purchaser did not obtain the qualification certificate for acquisition of farmland as prescribed by the Farmland Act, the ownership can not be acquired and the farmland subject to public sale is still owned by the debtor. Thus, the creditors who secured the execution title against the debtor before the purchaser acquired the qualification certificate for acquisition of farmland with the qualification certificate for acquisition of farmland can execute compulsory execution concerning the farmland. As seen earlier, the auction is conducted based on the provisional attachment bond, and the ownership of the real estate was acquired by Nonparty 2, thereby making it impossible for the plaintiff to acquire the ownership of the real estate of this case based on the public sale of this case.

On the other hand, the legal nature of the public auction is a buyer under private law, and as a result, after the public auction was conducted with respect to the real estate for which the execution of provisional seizure was completed, the auction procedure is similar to the case where the purchaser becomes unable to acquire the ownership of the real estate due to the exercise of mortgage or right to lease on a deposit basis. In such a case, it is reasonable to deem that the provisions of Articles 576 and 578 of the Civil Act are applied mutatis mutandis, and that the seller is liable for warranty under the above provisions. The buyer may cancel the public auction in accordance with the above provision. In full view of the purport of the whole pleading in the statement in Eul evidence 1-1, it is recognized that the plaintiff expressed against the Korea Asset Management Corporation that sold the real estate of this case in this court 2009Da43020.

Thus, the public auction of this case was retroactively invalidated as the above cancellation, and the defendant Republic of Korea and Seoul Special Metropolitan City obtained profits equivalent to the amount of each share in the above public auction procedure without any legal cause and thereby inflicted losses on the plaintiff. Thus, the plaintiff is obligated to refund the amount of each share to the plaintiff.

(b) Scope of interest in arrears;

On the other hand, the plaintiff also sought payment of interest for each of the above distribution amounts calculated by 5% per annum from December 13, 2005 when the above defendants received the above distribution amounts. However, in return of unjust enrichment, a bona fide beneficiary is liable to return the received interest within the limit of the existing profit, and only when the bona fide beneficiary loses his/her trust, he/she shall be deemed a malicious beneficiary from the time the lawsuit was filed to return the interest (Article 748, 749 of the Civil Act) with interest added thereto (Article 748, 749 of the Civil Act). Since there is no assertion or proof as to the fact that the above defendants knew that there was no legal cause from the time when the above defendants received the above distribution amount, it is reasonable to view that the above defendants

C. Sub-committee

Therefore, Defendant Republic of Korea is obligated to pay to the Plaintiff the amount of KRW 34,906,520 and the amount of KRW 5,266,610, which is the day following the day when the complaint of this case was served on the above defendant; Defendant Seoul Special Metropolitan City is obligated to pay the amount calculated by each of the rates of 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from October 7, 2010, the day following the day when the complaint of this case was served on the above defendant; and from February 15, 2011, the day when each of this ruling is rendered, to the extent of its performance obligation. Thus, Defendant Republic of Korea is obligated to pay the amount of money from the next day to the day when it is fully paid.

3. Determination on the claim against Defendant Gyeonggi-do

A. The plaintiff's assertion

The plaintiff was unable to acquire ownership of the real estate of this case on the basis of the public sale of this case, because the non-party 2 received a successful bid in the procedure of compulsory auction and paid the sale price in full. Thus, the acquisition tax paid by the plaintiff to the defendant Gyeonggi-do on the premise that the ownership of the real estate of this case was acquired has ceased to exist, and

B. Determination

Although the administrative disposition is illegal, unless it is void as a matter of course, it is treated as valid until it is cancelled by an agency with legitimate authority, and the evidence submitted by the plaintiff alone is insufficient to recognize that the acquisition tax imposition disposition by the defendant Gyeonggi-do is null and void as a matter of course, and there is no other evidence to acknowledge it.

C. Sub-committee

Therefore, the plaintiff's claim on the premise that the acquisition tax imposition disposition against the plaintiff of the defendant Gyeonggi-do is null and void as a matter of course is without merit.

4. Conclusion

Therefore, the plaintiff's respective claims against the defendant Republic of Korea and Seoul Special Metropolitan City are justified within the scope of the above recognition, each claim is dismissed, and the remaining claims against the defendant Gyeonggi-do are dismissed as there is no reason to do so.

Judges Kim Jong-ok