Suwon District Court 201Guhap2461 ( October 31, 2011)

Disposition of seizure against a third party's property shall be null and void as a matter of course.

Tax claims are imposed on the truster, and they do not constitute "right arising from the process of trust affairs" because the plaintiff, the trustee, is not a claim arising from the process of trust affairs.

Article 24 of the National Tax Collection Act

2011Nu336 Nullification of attachment disposition

XX Co., Ltd

Head of Suwon Tax Office

Suwon District Court Decision 201Guhap2461 Decided August 31, 2011

February 29, 2012

March 21, 2012

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

On September 29, 2009, the attachment disposition against the real estate stated in the attached list by the defendant is invalid.

The judgment of the first instance court is revoked. The plaintiff's claim is dismissed.

1. cite the judgment of the first instance;

2. On January 1, 200, the court's reasoning for the instant disposition is whether the instant lawsuit is legitimate or not. 3. Whether the instant disposition is legitimate or not. The Plaintiff's assertion b. The relevant Act and subordinate statutes are the corresponding part of the first instance judgment (from the second to the fifth (from the fifth to the fifth), except as follows. This refers to Article 8 (2) of the Administrative Litigation Act, and Article 420 of the Civil Procedure Act.

In addition, "National Tax Collection Act (amended by Act No. 10527, Apr. 4, 2011; hereinafter the same shall apply)" is added to "National Tax Collection Act (amended by Act No. 10527, Apr. 4, 201; hereinafter the same shall apply)." On the fourth day of theO, "the director of the tax office who shall be the tenth day" shall be deemed as "the tax official," and "in the case of "13,15 years",

2. A new part.

C. Determination

1) Article 24 of the National Tax Collection Act, which provides for the requirements for seizure as a disposition on default, limits the property subject to seizure to a taxpayer’s property. As such, the disposition on seizure subject to a third party’s property, which is not a taxpayer, cannot be legally realized, and thus becomes null and void. If a truster transfers the ownership of real estate to a trustee and establishes a trust relationship under the Trust Act between the parties by transferring the ownership of real estate, the trust property, unlike a simple title trust, shall belong to the trustee, and even after the trust, shall not be deemed a truster’s property. Thus, the trust property under the name of the trustee may not be seized on the basis of a tax claim against the truster (see, e.g., Supreme Court Decision 96Da

Inasmuch as the instant seized real estate was entrusted to the Plaintiff pursuant to the instant trust agreement, it is attributed to the Plaintiff, the trustee, and does not belong to the Plaintiff and does not belong to the truster, the trustee. The instant disposition is an attachment of trust property in the name of the Plaintiff based on the instant taxation claim against OO, the truster, after the trust under the Trust Act was effected. A defect is significant and apparent as an attachment for property owned by a third party, other than the taxpayer.

2) The defendant asserts that the taxation claim of this case against OO constitutes "the right that occurred in the course of performing the trust affairs" and that a compulsory execution may be enforced against the trust property under the proviso of Article 21 (1) of the Trust Act.

According to Article 21 (1) of the Trust Act, compulsory execution or auction against trust property is prohibited in principle (the main text), but in the case of "the time limit for the rights arising from the preceding trust," "the rights arising from the preceding trust," or "the rights arising from the process of trust affairs", compulsory execution against trust property is allowed (the proviso)

However, this provision does not allow compulsory execution against trust property even if it is owned by the creditor against the trustee to the trustee, unless it falls under the proviso to the trust property, and it does not allow compulsory execution against trust property to the creditor against the truster.

In addition, Article 21(1) proviso of the Trust Act provides that "the right arising from the process of trust affairs" refers to the right arising from the ordinary process of trust affairs conducted by a trustee, such as the management or disposition of trust property (see Supreme Court Decision 2005Da5843, Jun. 1, 2007).

The taxation claim of this case is not a "right arising from the process of performing the trust business" because the OO, the truster, acquired the real estate of this case, and the plaintiff, the trustee, is not a "right arising from the process of performing the trust business."

3) The instant disposition is unlawful in violation of Article 21(1) of the Trust Act, and is subject to the property owned by a third party, other than a taxpayer, and thus, it is serious and apparent that the details of the disposition cannot be legally realized.

3. Conclusion

The appeal is dismissed.