2. The costs of lawsuit shall be borne by the defendant.

Preliminary claim: Deposit claims made by the defendant against the plaintiff on April 22, 2010

Attachment and Disposition on Rights, Attachment and Disposition on the Real Estate listed in Attached List No. 2 on April 26, 2010, and Attachment and Disposition on the Real Estate listed in Attached List No. 3 on July 27, 2010 shall be revoked respectively.

가. 원고는 부동산 신탁업무를 영위하는 법인으로서 주식회사 △△엠(이하 '△△엠'이라 한다)과 사이에 2008. 12. 22. 〇〇시 〇〇동 2210 외 2필지 지상 ◇◇ 철재상가 제4동 415호 외 53개의 부동산, 2008. 12. 30. 같은 곳 ▲▲프라자 1층 101호 외 226개의 부동산, 2009. 2. 13. 같은 곳 ◇◇ ◇◇센타 1층 129호 외 3개의 부동산에 대하여 각 부동산처분신탁계약을 체결하고 소유권이전등기를 마쳤다(이하 3회의 신탁계약을 통틀어 '이 사건 신탁계약'이라 하고, 이 사건 신탁계약 대상 부동산을 통틀어 '이 사건 신탁부동산'이라 한다).

B. The Defendant notified △△M of the value-added tax and corporate tax (the amount excluding additional dues) as follows:

C. However, in order to collect value-added tax and corporate tax 2,18,496,270 won on April 22, 2010, the Defendant seized the real estate listed in the separate sheet No. 3 among the instant trusted on April 26, 2010 in order to collect the deposit claims listed in the separate sheet No. 1 (it refers to the deposit account and operating account in the name of the Plaintiff for the sale of real estate related to the instant trust property), and the value-added tax and corporate tax 2,108,417,190 won on April 26, 2010 in order to collect the real estate listed in the separate sheet No. 2 from among the instant trusted real estate, and the value-added tax and corporate tax 17,873,308,570 won on July 27, 2010 and the real estate listed in the separate sheet No. 3 from among the instant trusted real estate (hereinafter collectively referred to

D. Accordingly, the Plaintiff filed an appeal with the Tax Tribunal on May 24, 2010, but did not make any decision after the lapse of 90 days.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 7, Eul evidence 1 to 2

2. Whether the instant disposition is lawful

A. The parties' assertion

1) Plaintiff

The disposition of this case, which the Defendant seized each deposit claim and real estate in the attached list, which are trust property based on the value-added tax and corporate tax claim against △△M, is a serious and apparent defect in the property of a third party who is not a taxpayer.

2) Defendant

Even if a truster transfers ownership to a trustee pursuant to a trust contract under the Trust Act, this is merely a formal transfer for the prevention of decrease of trust property and the protection of beneficiaries, etc. in preparation for the case where a truster fails to perform his/her obligation in the future, rather than a substantial transfer of ownership.

In addition, since △△M’s value-added tax for January, 2006, 2006, and △△M for the business year of 2007 was generated by unfairly underreporting prior to the conclusion of the instant trust contract, it constitutes “the right arising prior to the trust” under the proviso of Article 21(1) of the Trust Act, and the value-added tax for the first year of 2009 constitutes “the right arising from the execution of trust affairs” under the proviso of Article 21(1) of the Trust Act, and thus, the instant disposition is legitimate.

B. Applicable statutes

C. Determination

In light of the provisions of Article 24 of the National Tax Collection Act, which provides for the requirements for seizure as a disposition for arrears, the disposition of seizure against a third party’s property, which is not a taxpayer, is null and void as the content of the disposition cannot be legally realized (see, e.g., Supreme Court Decision 2000Da68924, Feb. 23, 2001).

First, we examine the argument that the transfer of property rights under the trust contract is merely a formal transfer procedure and the object is owned by the truster and thus the disposition of this case is legitimate.

A trust under the Trust Act refers to the legal relationship in which a truster transfers or disposes of a specific property right to a trustee, and has a trustee manage or dispose of such property right for a certain person's interest or for a specific purpose, based on a special trust relationship between a truster and a trustee, and where the property right is transferred to a trustee under a trust agreement, such trust property shall be absolutely transferred to a trustee, and thus, full ownership may be exercised in a relationship between a third party and a trustee (see Supreme Court Decision 2007Da54276, Mar. 13, 2008).

Therefore, this part of the defendant's argument is without merit.

Next, we examine whether the instant tax liability of △M constitutes "the time limit for the rights arising before the trust or the rights arising from the performance of trust affairs" under the proviso of Article 21 (1) of the Trust Act.

Article 21(1) of the Trust Act provides that compulsory execution or auction of trust property shall not be permitted for the trust property. It provides that compulsory execution or auction against trust property shall be allowed exceptionally only in the case of "right arising from the cause prior to the trust" or "right arising from the process of the trust affairs." The term "right arising from the cause prior to the trust" refers to the case where the truster has a right to enforce compulsory execution or auction against the marina trust property prior to the trust, such as the case where the truster has created a mortgage or an executory claim, or the case where the trustee has entrusted the real estate seized on the basis of an executory claim (see, e.g., Supreme Court Decision 86Da545, May 12, 1987). In general, the term "right arising from the process of performing the trust affairs" refers to the right arising from the ordinary process of the trustee who performs the trust affairs such as the management or disposal of trust property, but even if not, it includes taxes or public charges on trust property, the right arising from trust property due to defects in the trust affairs, etc.

Therefore, this case's deposit claims listed in the separate sheet No. 1 (Article 8 of the trust contract of this case provides that "the original of the trust shall be the property acquired by trust real estate or by subrogation thereof, penalty arising in connection with the sale price and disposal procedure of trust real estate, profit arising from the management of money belonging to trust property, loan and other equivalent property." Thus, all of the above deposit claims are trust property and real estate listed in the separate sheet No. 2 and No. 3 list. It does not constitute a "right arising from the cause before the trust" because the defendant does not seize in relation to the tax claim of this case before the registration under the trust contract of this case is made. This case's tax claim of this case is merely a trust claim against △△M, which is the truster, and cannot be viewed as a right arising from the plaintiff's ordinary disposal procedure of the trust business."

Therefore, this part of the defendant's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.