A collective investment business entity is in a position to substantially manage the investment trust property and is in a position to receive assignment of claims or attachment notice.

A collective investment business entity under the Capital Markets Act is a truster, a truster, a trustee, but a collective investment business entity is in a position to receive notice of assignment of claims or notification of seizure in a position to substantially manage the investment trust property.

Article 24 of the National Tax Collection Act

2013Na2016181 Confirmation of Claim for Payment of Deposit Money

AA

Korea

on October 2014 05 09

on April 30, 2014

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked.

On September 28, 2012, the Plaintiff and the Defendant confirmed that, among the OO members deposited by the Seoul OO District Court on September 28, 2012, the Plaintiff and the Defendant, the claim for deposit withdrawal against KRW 000 was made.

1. Basic facts

The following facts do not conflict between the parties, or evidence A, evidence A, Nos. 1 to 4, 14, 15, 1, 2

It is recognized in full view of the purport of the whole pleadings in each statement of family evidence.

[1]

○○ ‘DDD Co., Ltd.' (hereinafter referred to as ‘DDD') is a collective investment business entity under Article 8(4) of the Financial Investment Services and Capital Markets Act (hereinafter referred to as ‘Capital Markets Act') as a corporation established for the purpose of collective investment business.

On December 13, 2012, ○DD invested in real estate in excess of 50/100 of the collective investment property, and entered into a trust agreement (hereinafter referred to as “the trust agreement of this case”) with a trust company, a trust business entity, in order to manage collective investment property using a trust-type collective investment scheme, 'DD private real estate investment trust 14, which issues collective investment securities only through private placement (hereinafter referred to as “instant collective investment scheme”).

∎제4조 (집합투자업자 및 신탁업자의 업무)

A collective investment business entity shall create an investment trust and terminate the investment trust, and perform the business of operating and operating the investment trust property.

(2) A trust business entity shall keep and manage the investment trust property and the investment trust property of a collective investment business entity.

The acquisition and disposal of assets and the performance of disposal thereof, the termination price and the payment of profits shall be performed in accordance with the operation instructions.

∎제15조 (자산운용지시 등)

(1) A collective investment business entity shall acquire and dispose of assets to a trust business entity in managing the investment trust property.

Every trust business entity shall give instructions necessary for the division, etc., and the trust business entity shall follow the instructions of the collective investment business entity.

A collective investment business entity shall acquire and sell assets: Provided, That if it is inevitable for the efficient management of the investment trust property, and it manages the assets for investment in a manner prescribed by Article 79(2) of the Enforcement Decree of the Capital Markets Act, it can acquire and dispose of assets for investment directly in its name.

(2) Where a collective investment business entity or a trust business entity acquires or disposes of assets for investment in accordance with paragraph (1), it shall assume responsibility for the performance thereof with the investment trust property

∎제18조 (자산운용업무의 위탁 등)

A collective investment business entity shall manage and remodel real estate in accordance with Article 97(9) of the Enforcement Decree of the Capital Markets Act.

The work of quantity, development and lease and the work incidental thereto may be entrusted to a third party.

[2]

The ○CC Bank acquired the ownership of the Obuilding (hereinafter referred to as “instant building”) located in the Gangnam-gu Seoul Eastern O in accordance with the direction of DDD.

On August 31, 2009, ○DD entered into an asset management entrustment contract with the EEE (hereinafter referred to as “EE”) that entrusts necessary management for the operation and maintenance of the instant building to the EE (hereinafter referred to as “EE”).

On May 2012, 000, ○E entered into a contract with ZZ Co., Ltd. (hereinafter referred to as ZZ in this case) for the construction of waterproofing construction of the building of this case (hereinafter referred to as 'the construction of this case') with the contract amount of KRW 0 million.

On May 22, 2012, the Z has concluded a subcontract for the construction of this case with the Plaintiff by setting the contract amount as the OO only. Since then, the Plaintiff completed the construction work.

[3]

In order to collect the delinquent amount of the Z on June 25, 2012, the Defendant shall: (a) the Z in order to collect the delinquent amount of the Z;

On June 27, 2012, the claims for the construction payment of this case were seized, and the attachment notification was issued to DDR.

On August 30, 2012, the notification of attachment was issued to theCC bank.

ZZ on June 29, 2012, the purport that the instant construction cost claim was transferred to the Plaintiff.

The notification of the assignment of claims was sent to EE by content-certified mail, and the notification was sent to EE on July 2, 2012.

On September 28, 2012, the ○CC bank deposited KRW 000,000 as the Seoul OO District Court in 2012, on the ground that the notice of the seizure and transfer of claims cannot be known to creditors who are obligated to pay the above construction cost due to the competition.

2. Determination on the cause of the claim

A. The plaintiff's assertion

First, the subject of external rights and obligations in the collective investment scheme of this case is the CC bank, which is the trustee, and has no authority to receive the notification of the assignment of claims or the notification of seizure because it is merely a truster. Therefore, the defendant's notification of the seizure of claims against DD considering DD as a third debtor is not valid, and the plaintiff's notification of the assignment of claims to EE has priority.

Second, on June 20, 2012, the Plaintiff pursuant to Article 14(1) of the Fair Transactions in Subcontracting Act.

Since the request for direct payment of the subcontract price to the EEE, the agent of the EEE, the plaintiff's right to direct payment has priority over the defendant's seizure claim.

B. Whether DDRs are in the position of receiving the notification of seizure

1) As seen earlier, the fact that DD, a collective investment business entity, concluded a trust agreement with CC Bank as a trustee for the management of collective investment property. Therefore, CC Bank, a trust business entity, carries out the business of acquiring and disposing of the instant building.

However, the collective investment business entity of the investment trust must give the trust business entity instructions necessary for acquiring and disposing of assets for investment, and the trust business entity shall follow the instructions of the collective investment business entity.

It is necessary to acquire and dispose of assets for investment (Article 80(1) of the Capital Markets Act and Article 15(1) of the Trust Contract of this case). In addition, the collective investment business entity of investment trust instructs the trust business entity to do so; or

Where assets for investment are acquired and disposed of directly, the person who is an operating leader of the investment trust property;

or as a direct operator with respect to the acquisition or disposition of assets for investment as the investment trust property

Article 80(2) of the Financial Investment Services and Capital Markets Act and Article 15(2) of the instant Trust Contract. In other words, a collective investment business entity is in a position to substantially manage the investment trust property.

2) In addition, DD directly entrusted EE with the asset management of the instant building in accordance with Article 18 of the instant trust agreement, and EE entered into a contract on the instant construction with the ZZ. In other words, the entity that entrusted the asset management of the instant building and the instant construction contract is not the CC bank, a trust business entity, but the collective investment business entity.

3) In addition, according to the statement in Gap evidence 2, when △△△ directly issues the tax invoice to the collective investment scheme of this case, the collective investment scheme of this case stated that the contractor would pay the construction cost, △△△△ also includes the role of assisting the contractor in the payment of the construction cost of this case, and the actual obligation for the payment of the construction cost is borne by the collective investment scheme of this case. The public notice of this case is cited in the public notice of DDR attached to the construction contract of this case in the part related to the payment of the construction cost of this case among the construction contract of this case. The above public notice states that DDR, the author of this case, shall approve the construction of this case and will pay the construction cost within the limit of the trust property of the collective investment scheme of this case after the completion of the construction work, and it is recognized that the receiver of the public notice of this public notice is

According to the above facts, in the situation that the collective investment scheme of this case has a separate legal personality as a trust type, not itself, it is determined that DD has expressed its intent to pay the construction price to the contractor by preparing a public notice to the effect that DD will approve the construction contract of this case and pay the construction price to the contractor.

4) Comprehensively taking account of all the circumstances examined above, the substantial subject of the obligation to pay the construction cost under the instant construction contract is considered to be DD. In other words, the contractor is deemed to be D.

Dodddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddds

In the end, DoD is in a position to claim the payment of the construction cost from ZZ, the contractor, and thus, it is in a position to receive the notification of assignment or seizure of the claim for the construction cost.

Therefore, this part of the Plaintiff’s assertion on a different premise is without merit for further review.

shall not be effective.

C. Whether a direct claim for subcontract consideration has been acquired

Party A’s written evidence Nos. 5, 6, 7, and 10 are alone demanding direct payment of the subcontract price to Austria.

It is insufficient to recognize that there has been a right to receive, and there is no other evidence to acknowledge it.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is with this conclusion.

Since the plaintiff's appeal is legitimate, it is dismissed and it is so decided as per Disposition.