Attachment of trust real estate shall be null and void automatically by seizure of the property of a third party.

Since compulsory execution and auction are prohibited in principle for trust property, the attachment of the property of a third party, the trustee, for the delinquent amount of the trust property is void automatically.

The contents of the decision shall be the same as attached.

1. It is confirmed that the Defendant’s attachment disposition against the real estate stated in the separate sheet on March 31, 2009 is null and void.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Circumstances of the disposition;

A. On April 19, 2007, the Plaintiff, the main purpose of which is to preserve, manage, and dispose of the title of the instant trusted real estate (hereinafter referred to as “AA Construction”) with AA Construction Co., Ltd. (hereinafter referred to as “AA Construction”), entered into a trust agreement with the truster with respect to a total of 51 sections of exclusive ownership (hereinafter referred to as “instant trusted real estate”), including the real estate (hereinafter referred to as “instant seized real estate”), listed in the separate sheet among BBB 713, Dong-dong BB 713, Dong-dong, BB 713, Dong-dong, and the instant building (hereinafter referred to as “instant building”), and entered into a trust agreement with the truster with respect to a total of 51 sections of exclusive ownership (hereinafter referred to as “instant trusted real estate”). From April 19, 2007 to April 30, 2008, when the period of the trust agreement terminated by obtaining the ownership of the instant real estate from the expiration date of the trust agreement.

B. On March 31, 2009, the defendant seized the real estate of this case (hereinafter referred to as "the seizure disposition of this case") based on delinquent tax claims (hereinafter referred to as "the tax claims of this case") as listed below against AA Construction, and the seizure registration was completed on April 3, 2009.

[Reasons for Recognition] Unsatisfy, each entry in Gap evidence 1 to 4 (including each number), and the purport of the whole pleadings

2. Determination on this safety defense

A. In the instant case where the Plaintiff seeks confirmation on the Defendant’s instant attachment disposition concerning the trustee’s property, which is a third party, the Defendant’s third party’s property. As such, even if there is a defect in the instant attachment disposition, it cannot be viewed as a mere cause for revocation and it cannot be seen as a cause for invalidation. Thus, the instant lawsuit constitutes a case where it was filed without undergoing the previous trial procedure and does not meet the requirements for filing a lawsuit, and

B. On the other hand, the lawsuit of this case is subject to confirmation on the premise that the seizure disposition of this case is concerned with a third party's property, and it is subject to confirmation on the premise that the seizure disposition of this case is null and void as it is subject to any of the provisions of each provision of Article 24 of the National Tax Collection Act, which provides the requirements for seizure as a disposition for arrears, and since the seizure disposition of a third party's property which is not a taxpayer is limited to the taxpayer's property, it shall be null and void as it is not possible to legally realize the contents of the disposition (see, e.g., Supreme Court Decision 92Nu12117, Apr. 27, 1993; Supreme Court Decision 96Da17424, Oct. 15, 1996). Since the invalidation of the taxation disposition of this case is no longer necessary to go through the previous trial procedure because anyone in a lawsuit or outside of a lawsuit can assert it at any time and without limit, the defendant's

3. Whether the seizure disposition of this case is legitimate

A. The parties' assertion

(1) The plaintiff's principal

Since compulsory execution is prohibited as a matter of principle against trust property, the instant trust property cannot be seized as the instant taxation claim against AA Construction. The instant seizure disposition constitutes a seizure against a third party’s property, and its defect is serious and obvious. Thus, the instant seizure disposition is null and void as it constitutes a seizure against a third party’s property.

(2) Defendant’s principal

AA Construction only runs the business related to the new construction and sale of the building of this case. Among the taxation claims of this case, the value-added tax is the tax imposed on the original business result that the AA Construction newly constructs and sells the building of this case, and the comprehensive real estate holding tax is the tax that is subject to taxation of the real estate holding tax of this case. Since all the taxation claims of this case are all the bonds arising from the trust business performance under the trust contract of this case, the attachment disposition of this case is lawful.

B. Determination

(1) Article 21(1) of the Trust Act provides that "No compulsory execution or auction shall be conducted against the trust property: Provided, That the same shall not apply in the case of a right arising prior to the trust or a right arising from the performance of the trust affairs, except in the case of a right arising from the performance of the trust affairs." In the proviso of the above provision, the creditor holding "the right against the trustee arising from the performance of the trust affairs" can conduct compulsory execution against the trust property exceptionally, unlike the general creditor of the trustee. In this context, the "claim arising from the performance of the trust affairs" refers to the claim arising from the trustee's ordinary business activities, such as the management or disposal of the trust property.

(2) The return to the instant case and the new construction of the instant building is not a trust business under the instant trust contract, and the evidence submitted by the Defendant (including evidence Nos. 6, 8, and each number) alone alone is insufficient to recognize that the AA Construction exclusively engaged in a business related to the new construction and sale of the instant building, or that all of the instant tax claims occurred in the course of the sale of the instant trusted property, and that it is a claim arising in the course of the execution of trust affairs, and there is no other evidence to support this. Thus, the Defendant’s assertion is without merit (i.e.,, there is no evidence to clearly ascertain whether the tax claim of the Defendant’s assertion was arising from the business related to the sale of the remainder of the instant building, other than the instant trusted property).

Even if value-added tax imposed on AA Construction was incurred in the course of selling the instant trusted property, the taxpayer of value-added tax under the instant trust agreement is the beneficiary (see, e.g., Supreme Court Decision 99Da59290, Apr. 25, 2003). Thus, the foregoing value-added tax claim cannot be deemed as a trustee’s claim against the Plaintiff, which was incurred in the course of performing trust affairs, and the comprehensive real estate holding tax and corporate tax cannot be deemed as a claim arising in the course of performing trust affairs. Therefore, the Defendant’

C. Sub-committee

Therefore, the defendant's attachment disposition of this case is a seizure against a third party's property which is not a delinquent taxpayer without any legitimate ground, and its defect is serious and obvious, and thus it is null and void.

4. Conclusion

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