Hanol Trust Co., Ltd. (Law Firm Sepon, Attorney Park Jong-pon, Counsel for the defendant-appellant)

Head of the Gu of Daegu Metropolitan City (Attorney Lee Young-hwan, Counsel for the defendant-appellant)

Daegu District Court Decision 2010Guhap1202 Decided August 18, 2010

November 12, 2010

1. The defendant's appeal is dismissed.

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

1. Purport of claim

On September 22, 2009, the defendant confirmed that each seizure disposition against each real estate listed in the separate sheet is invalid.

2. Purport of appeal

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

1. Details of the disposition;

A. On July 5, 2007, U.S. P&A Co., Ltd. (hereinafter “U&A”) entered into a real estate security trust agreement with the Plaintiff on each real estate listed in the list Nos. 1, 2, 4, 5, and 6, and completed the registration of ownership transfer for reasons of trust in the future of the Plaintiff on the 9th of the same month, and entered into a real estate security trust agreement on August 8, 200, and completed the registration of ownership transfer for reasons of trust in the future of the Plaintiff on the 14th of the same month (hereinafter “each real estate of this case”).

B. On September 22, 2009, the Defendant attached each of the instant real estate (hereinafter “instant disposition”) on September 22, 2009, on the ground that the U.S.A had failed to pay KRW 357,414,150 in total, including acquisition tax for the year 2007, registration tax for the year 2007, and property tax for the year 2007 through 2009.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1 and 2 (including branch numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Under the premise that the owner of each of the instant real property is the U.S.A., the Defendant seized each of the instant real property based on the taxation claim against the U.S.A. However, each of the instant real property was owned by the Plaintiff as the property trusted by the U.S.A. to the Plaintiff, and thus, the instant disposition is null and void as it constitutes a seizure of another’s property

(2) As a matter of principle, compulsory execution is prohibited against the trust property under the main sentence of Article 21(1) of the Trust Act, the instant disposition against the trust property is null and void.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) According to the provisions of Article 24 of the National Tax Collection Act, which provides for the requirements for seizure as a disposition on default, in any case or where the subject matter of seizure is limited to the taxpayer’s property, a disposition of seizure against a third party’s property, which is not a taxpayer, shall not be legally realized (see, e.g., Supreme Court Decision 2000Da68924, Feb. 23, 2001). Moreover, if a truster transfers the ownership of real estate to a trustee and a trust relationship is established between the parties pursuant to the Trust Act, the trust property shall be deemed to belong to the trustee and shall not be deemed to be the truster’s property after the trust is made. Accordingly, even if the truster of trust property is a taxpayer, seizure against the trust property based on the truster’s tax claim against the truster shall not be effective as a seizure against the third party’s property (see Supreme Court Decision 96Da17424, Oct. 15, 196)

As seen earlier, each of the instant real estates is the Plaintiff’s property, which is entrusted to the Plaintiff by LAWA. Therefore, the instant disposition rendered by the Defendant on each of the instant real estates, which are the Plaintiff’s property, based on a tax claim against LAWA, is null and void since it is a seizure disposition that is conducted on the third party’s property.

(2) In addition, since a compulsory execution is prohibited against the trust property under the main sentence of Article 21(1) of the Trust Act, the instant disposition against each of the instant real estate, which is a trust property, is null and void.

According to the proviso of Article 21(1) of the Trust Act, the Defendant asserts that the instant disposition is lawful on the ground that: (a) the right arising in the course of performing the trust affairs should not be based on the “right arising in the course of performing the trust affairs;” and (b) the Defendant’s taxation claim against the M&A constitutes “the right arising in

The "right arising in the course of performing the trust affairs" under the proviso of Article 21 (1) of the Trust Act includes not only the right arising from the management and disposal of the trust property (such as expenses and claims of the trustee under Article 42 of the Trust Act, and the right to claim remuneration under Article 43 of the same Act) but also the tax claim on the trust property, which is the right attributable to the trust property itself. However, as seen earlier, when a trust relationship is established under the Trust Act, the trust property shall belong to the trustee and shall not be subject to seizure of the trust property under the truster's name (see Supreme Court Decision 96Da17424, Oct. 15, 196). Accordingly, the tax claim on the trust property exceptionally allowed compulsory execution under the proviso of Article 21 (1) of the Trust Act shall be deemed to mean "tax claim imposed on the trustee." Therefore, the tax claim against the defendant, the truster of the defendant, does not constitute "the right arising from the trust affairs" under the proviso of Article 21 (1) of the Trust Act.

3. Conclusion

The judgment of the court of first instance which accepted the plaintiff's claim is just, and the defendant's appeal is dismissed.

[Attachment]

Judges Kim Chang-chul (Presiding Judge) Kim Jong-ho