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Effect on Lien between Foreclosure of Disposition for Arrears of Taxes and Commencement of Auction

  • DONG-A LAW REVIEW
  • 2014, (64), pp.255-278
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

이정민 1,  JEOM IN LEE 1

1동아대학교

Accredited

ABSTRACT

The goal of this study is to examine whether a lien holder who acquired a lien right through civic proceeding can exercise lien rights on the buyer in an auction to dispose real estate assets that are under seizure due to delinquency disposition before the auction starts. The most recent Supreme Court judgment on validity of lien rights delivered based on unanimous decision gave the first judgment on whether lien acquired after seizure was made on real estate asset based on national tax laws or local tax laws, not civic proceedings, were valid. The majority opinion was that seizure of asset is declared when auction begins in civic proceeding whereas seizure is declared when delinquency is declared in case of asset disposition based on national tax laws. Also, in the latter case, disposition does not necessarily lead to auction proceeding. Also, asset disposition proceeding and civic proceeding are two separate legal proceedings and therefore public auction and private auction process proceed independently. Therefore, just because seizure was imposed due to delinquency disposition, it cannot be construed as the same case where seizure was imposed on real estate asset at the time of start of auction. Accordingly, the court concluded that, even if the real estate asset is under delinquency disposition, that alone cannot necessarily constitute a valid reason for viewing that the lien holder who acquired lien rights from civic proceedings on real estate asset before public auction officially began cannot exercise lien rights on the buyer in auction proceeding. The significance of this ruling is that is provided in-depth discussions on whether there exist legal differences between seizure based on civic proceeding and lien rights acquired after seizure was imposed based on national tax laws and local tax laws, and the basis for such judgment. However, despite unanimous decision, there are still uncertainties surrounding the conclusion. This case pertains only to seizure declaration. However, it still remains uncertain whether the lien holder can contest the buyer if the asset was sold through public auction even though lien rights have been established after seizure declaration.

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