Seoul Central District Court-2018-Gohap-502066 ( March 13, 2018)

Whether the "relevant tax" provided for in the trust contract clause includes any such tax imposed on the truster as the taxpayer for such tax.

The "relevant tax" stipulated in the provisions of the trust contract of this case is deemed to be limited to the corresponding tax imposed on the trustee who can be exercised by the State or a local government against the original trustee.

Article 22 of the Trust Act, Article 107 of the former Local Tax Act

Seoul High Court 2018Na2045382 Confirmation of Claim for Payment of Deposit Money

AA

GGG outside1

July 10, 2019

August 23, 2019

1. The defendants' appeal is dismissed.

2. The costs of appeal are assessed against the Defendants.

[Claim]

BB A deposit made on March 29, 2017 by the Seoul Central District Court No. 2017 No. 2011*

1,641,631,460 Won 1,00,000,000 out of 1,641,631,460

section 3.

【Purpose of Appeal】

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Conclusion of the case progress and the judgment of the first instance;

A. Article 22(1) of the Trust Contract of this case (the Trust Contract of this case No. 4 shall be subject to the judgment of the court of first instance) provides the order of appropriation when the trustee realized and settle the trusted real estate (the non-related part is omitted; hereinafter referred to as "No. 2, subparagraph 6, and subparagraph 7") as follows. BB of this case is the trustee of this case's Trust Contract of this case's trust contract of this case's cCC and truster (the truster) from 2008 to 2013, the creditor of comprehensive real estate holding tax of this case(1,130,186,670) from 208 to 2013 to 2013 (the beneficiary of this case's trust contract of this case's 1,444,790,000,000 won)'s property tax (the beneficiary of this case's trust deposit of this case's 16,161460,7900,3164, and 1614,374700.

C. The ground for the plaintiff's assertion that the plaintiff's claim for payment of deposit KRW 1 billion that the plaintiff acquired by the plaintiff is stipulated in the CCC's claim, which is the first beneficiary. In this regard, the defendants asserted that the defendant's claim for payment of deposit is against the defendants on the ground of subparagraph 2 prior to the order of priority in the first instance trial. The "relevant tax" includes the pertinent tax, such as the comprehensive real estate tax and property tax borne by DD, the truster, and the defendants exercise the right to payment of deposit under subparagraph 2 against DD's BB by exercising the right to claim for payment of deposit of this case against DD as the preserved claim. Thus, the defendants' claim for payment of the deposit of this case is against the defendants. In addition, the defendant EE did not act as a preliminary subrogation of DD but claimed that it has the right to claim payment of the amount equivalent to the property tax borne by DD directly to BB by the first beneficiary.

D. The judgment of the court of first instance rejected all the defendants' claims and accepted the plaintiff's claims. The defendants who appealed to the previous claims, while maintaining the previous claims, added the claims such as the exercise of the subrogation of the claims for settlement of DD under subparagraph 7 to this court. However, in consideration of the evidence submitted to this court, the fact-finding and judgment of the court of first instance are just and acceptable.

The 4th 6th 16th 6th 6th 6th 22(1) from FF, etc. on July 13, 2016, and the Plaintiff, the Defendants CCC, and the Defendants 4th 21th 21th 5th 5th 1st 5th 201.

Gap evidence 1 to 4 (including evidence with serial numbers), Eul evidence 1

Gap evidence 1 to 5 (including evidence with serial numbers), Eul evidence 7, Eul evidence 1

In accordance with the main sentence of Article 420 of the Civil Procedure Act, the judgment of the court of first instance shall be accepted, but the part of the judgment of the court of first instance shall be dismissed, and the reasoning of the judgment of the court of first instance as to the defendants' assertion that the claims for settlement of DD shall be exercised under subparagraph 2 shall be supplemented, and

2. Parts in height:

The judgment of the court of first instance is affirmed as follows.

3. Supplementary parts of subparagraph 2 include the pertinent duties borne by DD, the truster, on the "relevant tax," and thus the Defendants' assertion that DD's claims for settlement of accounts against BB are vicariously exercised cannot be accepted in the following respect:

A. Whether the vicarious exercise is recognized

The subrogation claim by the Defendants cannot be acknowledged as being inconsistent with the claim for payment of the instant deposit. The deposit made by BB from 2008 to 2013 is because the Defendants asserted that the comprehensive real estate tax and property tax imposed on the instant trust real estate falls under subparagraph 2 and should be paid directly to the Defendants prior to subparagraph 6 (the Defendants appears to have claimed that BB is a taxpayer of comprehensive real estate tax and property tax). Accordingly, since the priority order of BB cannot be determined, the Defendants were deposited with CCC, the first priority beneficiary, as well as CCC, as the Defendants, as the third priority beneficiary, and deposited the instant deposit as a relative uncertainty, the Defendants are not entitled to claim for payment of DD deposit, but may exercise the Defendants’ inherent right for payment of the deposit money by subrogation against the third parties of the taxpayers for the purpose of preserving the tax claim (see, e.g., Supreme Court Decision 2006Da26817, Apr. 1, 2019).

B. The scope of the pertinent tax under subparagraph 2 cannot be deemed to include the pertinent tax imposed on DB, the truster, inasmuch as the pertinent tax is not deemed to include the pertinent tax imposed on DB, the Defendants’ assertion. The instant trust agreement is a trust agreement concluded between the lending financial institution and the Si Corporation as the priority beneficiary for the purpose of securing the loan claims on DB, construction cost claims on DB, etc. The instant trust agreement is a trust agreement concluded between the lending financial institution and the Si Corporation as the priority beneficiary. Article 15(1) of the instant trust agreement provides that “any damages arising from the trust business shall be borne by the truster.” Article 6 of the said special agreement provides that “The taxes and accounting related to the trust property shall be disposed of by the truster.” This is premised on the assumption that the truster is liable for the pertinent tax imposed on the pertinent trust property by the time when considering the purpose of the instant trust agreement, content of the instant trust agreement, the truster’s property tax imposed on the pertinent trust property under Article 28(1)20(1)6(2)1)1 of the instant trust agreement, and the pertinent tax imposed on the trustee.

A. Defendant GG’s assertion that the claim for the settlement of DD under subparagraph 7 is vicariously exercised is not accepted.

(1) Similar to the vicarious exercise of the claim for the settlement of accounts under subparagraph 2, Defendant GG’s assertion that the claim for the settlement of accounts under subparagraph 7 is the vicarious exercise of the claim for the settlement of accounts under subparagraph 7 is not consistent with the intent and structure of the payment deposit made by BB, and thus, cannot

(2) It cannot be deemed that the settlement amount claim under subparagraph (7) is in a D.

① Comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 1, 5, 6, and 7, Eul evidence Nos. 8-1, 2, and 4-8, and Eul evidence Nos. 4-2, and 8, on July 13, 2016, the CCC acquired credit from the truster from the FF, etc., the first priority beneficiary under the trust agreement of this case, and subsequently changed the first priority beneficiary into CCC from FF, etc. on December 29, 2016.*** under the trust agreement of this case, the first priority beneficiary under the trust agreement of this case was disposed of by CCC, which is the first beneficiary under Article 5(2) of the terms of the trust agreement of this case, and completed the registration of transfer of ownership of the trust property of this case to CCC ** The trust beneficiary of this case was not deemed to fall under the scope of the trust property of this case, but did not constitute the first priority beneficiary of the trust property of this case.

(2) If so, the trust contract was terminated by the transfer of the ownership of the instant trusted real estate to the CCC, and the change of the first priority beneficiary to the CCC following the termination of the trust contract violates Article 7(6) of the instant trust contract providing that the first beneficiary is changed and thus null and void or the truster and his successor shall not have the status of the first beneficiary. Accordingly, CCC’s assertion in the Republic of Korea that the remaining amount belongs to DDR, not the first beneficiary, but the former truster, is merely based on the wrong order of facts, and the claim of the first beneficiary under subparagraph 6 was not appropriated, and thus, it cannot be deemed that the settlement claim under subparagraph 7 is a DD.

B. We do not accept the assertion that Defendant EE may directly claim for the payment of property tax to BB.

(1) Article 107(1) of the former Local Tax Act (amended by Act No. 12153, Jan. 1, 2014; hereinafter referred to as the "former Local Tax Act") which applies to the local tax from 2008 to 2013 of the DNA claimed by Defendant EE, provides that a person liable to pay property tax shall be a person who actually owns the property as of the property tax base date, and, notwithstanding Article 107(2)5 of the former Local Tax Act, a truster shall be a person liable to pay property tax if the trust property is registered in the name of the trustee pursuant to the Trust Act. Since the trust property of this case is registered in the name of BB, the truster shall not be deemed a person who actually owns the trust property. (2) In the case of trust property registered in the name of the trustee under the name of the former Local Tax Act, the truster shall not be deemed a person liable to pay property tax, or a tax manager shall not be deemed a taxpayer under Article 135(2)5 of the former Framework Act on Local Taxes.

(3) As seen earlier, “the pertinent tax” under subparagraph 2 means only the pertinent tax imposed on the trustee in relation to trust property, and it does not include the pertinent tax imposed on the truster. The amendment of the Local Tax Act, which states that the person liable for the payment of the property tax from the trust property to the trustee should be deemed to bear the property tax borne by the trustee based on the circumstances that the truster changed from the truster to the trustee, and the terms of the instant trust contract, cannot accept Defendant EE’s assertion that the amount of settlement of the CCC is 21.6 billion won under the transfer contract (Evidence 5) and if there is the remaining amount of DD under subparagraph 7, Defendant EE can act on behalf of the trustee, but there is no ground to view that the settlement amount of CCC is limited to 21.6 billion won under the transfer contract (Evidence 5).

5. Conclusion

The plaintiff's claim shall be accepted on the grounds of its reasoning. The judgment of the court of first instance is just in conclusion, and thus, the defendants' appeal is dismissed.