[1] Independence of trust property under the Trust Act and the meaning of "right arising from a cause before the trust" under Article 21 (1) of the Trust Act

[2] In a case where there is a seizure of the right to claim the registration of ownership transfer, whether the obligor may file a lawsuit against the third obligor for the performance thereof (affirmative), and whether the court has accepted the case (affirmative)

[3] The case holding that the property trusted by the debtor cannot be considered as the debtor's active property in determining whether the debtor's insolvent is a requirement to exercise the creditor's subrogation right under Article 404 (1) of the Civil Code

[1] Under the Trust Act, the trust property shall be separately managed from the trustee's proprietary property, as well as shall be separated from the truster's property right, and the above trust property shall be prohibited from compulsory execution or auction in principle pursuant to the main sentence of Article 21 (1) of the Trust Act. However, in principle, compulsory execution shall be exceptionally allowed only when the right arising from the cause before the trust or the right arising from the performance of trust affairs is based on the proviso. Here, the above right arising from the cause before the trust refers to the time when a claim for the trust property itself, such as where a mortgage has already been established in the trust property before the trust, has already occurred, and all claims arising

[2] In general, even if a claim is seized, since this prohibits only collection by a debtor from a third debtor in reality, the debtor is entitled to file a lawsuit against the third debtor to seek its performance. In principle, the court cannot reject it on the ground that the seizure is made. However, the judgment ordering the registration of ownership transfer is a judgment ordering the doctor's statement, and this becomes final and conclusive, the debtor can unilaterally file an application for the registration of ownership transfer, and in such a case, the third debtor has no way to block it, and in such a case, the court shall not accept it unless it conditioned to the cancellation

[3] The case holding that in determining the debtor's insolvent as a requirement for the exercise of the creditor's subrogation right under Article 404 (1) of the Civil Code, since the debtor's property trusted is distinguished from the trustee's property and managed as well as the trustee's property rights, it cannot be considered as the debtor's active property

[1] Article 404(1) of the Civil Act, Article 21(1) of the Trust Act / [2] Articles 223 and 244 of the Civil Execution Act / [3] Article 404(1) of the Civil Act

[1] Supreme Court Decision 86Da545, 86Meu2876 decided May 12, 1987 (Gong1987, 958) / [2] Supreme Court en banc Decision 92Da4680 decided Nov. 10, 1992 (Gong1993Sang, 72) 98Da42615 decided Feb. 9, 199 (Gong199Sang, 471)

Plaintiff (Law Firm Sejong, Attorneys Cho Yong-ho et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Hanl, Attorneys Kim Jong-ho et al., Counsel for the defendant-appellant)

Intervenor Co., Ltd. (Law Firm Hanl, Attorneys Kim Jong-ho et al., Counsel for the intervenor-appellant)

Suwon District Court Decision 2006Da43926 decided Feb. 19, 2009

October 20, 2009

1. The judgment of the court of first instance is modified as follows.

A. On June 30, 2005, the Defendant cancelled the execution under the seizure order of the right to claim the transfer of ownership of real estate on the attached list No. 2005TTTTT 2487 and the seizure order of the right to claim the transfer of ownership of real estate on March 12, 2008 to transfer the provisional attachment No. 2008TTT 1504 on March 12, 2008, with respect to each real estate listed in the attached list, the Defendant will implement the registration procedure for the transfer of ownership on the ground of the provisional registration completed under the provisional registration completed on July 15, 2003 by receipt No. 41049 on Nov. 23, 2005.

B. The plaintiff's remaining claims are dismissed.

2. Of the total costs of the litigation, 1/2 of the remainder, excluding the costs incurred by participation in the litigation, is borne by the Plaintiff, the remainder by the Defendant, and the costs incurred by participation, by the Intervenor joining the lawsuit.

The judgment of the court of first instance is revoked. The defendant will implement the procedure for the registration of ownership transfer on November 23, 2005 based on provisional registration completed on July 15, 2003 by the receipt No. 41049 for the defendant joining the defendant with respect to each real estate listed in the attached list, which was entered in the attached list.

1. Facts of recognition;

A. On July 15, 2003, the Defendant completed the registration of the right to claim ownership transfer on the ground of the pre-sale agreement made on March 27, 2003 (hereinafter “the provisional registration of this case”) with respect to each real estate listed in the separate sheet on July 15, 2003 (hereinafter “each real estate of this case”) and the area of a factory site of 378-4 1,523 square meters in Ypo-Eup, Ypo-si in Gwangju City (hereinafter “the instant provisional

B. On May 27, 2005, the plaintiff filed a lawsuit against the defendant in this case on behalf of the defendant joining the defendant, claiming for collection of ownership transfer registration of the land No. 378-4 above (No. 2005Kadan15689). On September 6, 2005, the above court rendered a decision to recommend settlement with the defendant on July 15, 2003 as to the land No. 378-4 at the same time as the defendant received KRW 200 million from the plaintiff. On the provisional registration completed as of July 15, 2003 as of the above 378-4 land from the defendant joining the defendant, Sung-nam-gu Seoul District Court's Sung-nam District Court's Seoul Branch Branch Office of 41049 on August 22, 2005, and both parties did not raise an objection within the time limit for filing an objection, thereby the above settlement recommendation decision became final and conclusive on October 19, 2005.

C. Accordingly, on November 23, 2005, the Plaintiff, on the part of the Defendant and the Intervenor joining the Defendant, subrogated to KRW 200 million for the remainder of sale and purchase of each of the instant real estate and the land No. 378-4 as a result of the purchase and sale contract between the Defendant and the Intervenor joining the Defendant, and expressed an intention to complete

D. Meanwhile, on July 21, 2004, the Defendant joining the Defendant prepared and executed a promissory note No. 240, July 21, 2004, which was newly signed by a notary public, to pay KRW 2 billion to the Plaintiff on July 21, 2004, and the said KRW 1.8 billion out of the said KRW 2 billion was not repaid to the Plaintiff by the date of the closing of argument in the instant case.

E. On June 30, 2005, the Plaintiff was ordered to attach the Defendant’s claim for the transfer registration of ownership of each of the instant real estate against the Defendant in the Intervenor’s Intervenor’s Intervenor, the Defendant’s Intervenor’s Intervenor, and the third obligor, as the Defendant, the Suwon District Court Sung-nam Branch 2005TTT2487, and the said order reached the Defendant and the Defendant’s Intervenor around that time.

F. In addition, on March 12, 2008, the non-party, who is another creditor of the Intervenor joining the Defendant, was ordered to attach the right to claim for the transfer registration of ownership of each of the instant real estate against the Defendant of the Intervenor joining the Defendant as the Defendant, the Defendant, and the third obligor as the Defendant, the Suwon-nam District Court Branch 2008TTTT1504, Sungnam-nam, 1504, and the above order reached the Defendant and the Defendant

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4 through 6 (including each number), Eul evidence Nos. 9 and 12, the purport of the whole pleadings

2. Judgment on the defendant's main defense

A. Defendant’s defense

The Intervenor joining the Defendant, as the Plaintiff’s obligor, purchased the ownership of the land 296,945 square meters (hereinafter “instant project site”) in order to carry out the apartment project, including the Mapo-ri 390-2, Mapo-si, Ypo-si, Gwangju-si, and entrusted the said project site to the Korea Asset Trust Corporation. The Intervenor joining the Defendant had the right to the said project site, and thus, the Intervenor joining the Defendant cannot be deemed insolvent.

Therefore, the instant lawsuit that the Plaintiff, a creditor, seeks by subrogation of the Intervenor joining the Defendant, should be dismissed as it is unnecessary to preserve the claim.

B. Determination

1) Article 404(1) of the Civil Act requires that “to preserve one’s own claims” in the exercise of obligee’s subrogation right, and it is reasonable to deem that the requirements are satisfied only when the obligor is insolvent, in cases where a claim to be preserved is not a specific claim, but a monetary claim, the obligor’s liability and property is insufficient in addition to the obligor’s third obligor’s claims.

2) In the instant case, the facts that the total amount of the Defendant’s debt against the Plaintiff is KRW 2 billion (=200 million for indemnity + KRW 1.8 billion for promissory notes) are as seen earlier. In full view of the entries in the evidence Nos. 13 and 14 and the overall purport of the pleadings, the Defendant’s Intervenor borrowed KRW 800 million from the Nonparty on October 17, 2002, and the Defendant’s Intervenor’s new notary public, who is obliged to pay KRW 10 billion to the Nonparty on May 17, 2004, prepared a promissory notes No. 1555 on May 18, 2004, respectively, may be acknowledged that the Defendant’s small assets of the Defendant’s Intervenor are KRW 12.8 billion for the Plaintiff (i.e., KRW 2 billion for the Plaintiff’s debt to the Nonparty + KRW 1.8 billion for the Nonparty on May 17, 2004).

3) On the other hand, it is problematic whether the Defendant’s Intervenor has no specific property except the instant project site trusted to Korea Asset Trust Co., Ltd. as of the date of the closing of argument in the instant case, and whether the above trust property can be the responsible property of the Defendant’s Intervenor.

In light of the above, insolvency as a requirement for exercising creditor's subrogation right means that the debtor has no ability to repay. In particular, in a case where it is not possible to expect voluntary repayment, repayment through compulsory execution should be considered. Therefore, it should be an important factor to determine whether the debtor is a small property, active property, or property that can meet the above purpose (see Supreme Court Decision 2004Da2564, Feb. 10, 2006, etc.).

On the other hand, the trust property under the Trust Act is separate from the trustee's own property and is independent from the truster's property right. The above trust property is prohibited from compulsory execution or auction in principle pursuant to the main sentence of Article 21 (1) of the Trust Act. However, in principle, compulsory execution is exceptionally allowed only when the right arising from the cause prior to the trust or the right arising from the performance of trust affairs is based on the proviso. Here, the above right arising from the cause prior to the trust refers to the time when a claim for the trust property itself, such as where a mortgage has already been established on the trust property before the trust, has already been established, and all claims arising from the truster before the trust is included (see, e.g., Supreme Court Decision 86Da545, May 12, 1987).

In this case, there is no evidence to acknowledge that creditors, including the plaintiff, created a mortgage, etc. on the above business site before the registration of transfer of ownership for the reason of reversion of trust property in the name of Korea Asset Trust Co., Ltd., a trustee for the business site of this case, and therefore, it is reasonable to deem that the business site of this case cannot be subject to compulsory execution by creditors, including the plaintiff.

Therefore, the defendant's right to the business site of this case cannot be considered as the active property of the defendant's intervenor in determining whether the debtor's insolvency is the requirement to exercise the creditor's subrogation right, and it is reasonable to deem that the defendant's defendant's intervenor is insolvent as it has no specific property as of the date of closing argument of this case. Accordingly, the defendant

3. Judgment on the merits

In general, even if a seizure of a claim is made against a third-party debtor, it is prohibited that the debtor only collects benefits from the third-party debtor, so the debtor can file a lawsuit seeking performance against the third-party debtor, and the court cannot reject it on the grounds that the seizure is made. However, the judgment ordering the registration of transfer of ownership cannot be rejected on the ground that it is a judgment ordering a doctor's statement, which is final and conclusive, the debtor can unilaterally file an application for registration of transfer, and the third-party debtor has no means to block it, and in such a case, the court shall not accept it unless it conditioned the cancellation of seizure (see Supreme Court en banc Decision 92Da4680 delivered on November 10, 1992, Supreme Court Decision 98Da42615 delivered on February 9, 199, etc.)

On July 15, 2003, the Defendant completed the provisional registration of transfer transfer registration of each of the instant real estate against the Defendant on March 27, 2003. On November 23, 2005, the Plaintiff subrogated to the Defendant for the remainder of sale of each of the instant real estate and the land No. 378-4, and notified the Defendant of the completion of the promise to sell and purchase each of the instant real estate on June 30, 2005. The Plaintiff was ordered to attach the Defendant to the Defendant on July 15, 2003, and the Nonparty, the obligee of the Defendant, issued the provisional registration order to the Defendant on March 12, 2008, and the Defendant received the provisional registration order to the Defendant on March 24, 2008 and the Defendant’s order to transfer the ownership of each of the instant real estate on March 15, 2008 between the Defendant and the Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s 2 under the provisional registration order to the Defendant’s attachment No. 1 and the Defendant’s order No. 2.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal is partially accepted and the judgment of the court of first instance is modified as above, and it is so decided as per Disposition.

[Attachment] List of Real Estate: omitted

Judges Kim Tae-jin (Presiding Justice)