(영문) 서울행정법원 2015. 5. 22. 선고 2014구합72668 제6민사부 판결

1. Of the lawsuit filed by the Plaintiff KB real estate trust company, the part of the claim for revocation of the disposition of imposition Nos. 2 through 4 of the [Attachment 1] No. 1 and the lawsuit filed by the Plaintiff UPS Specialized in the Plaintiff U.S. Asset-backed Securitization shall be dismissed.

2. The remaining claims of the Plaintiff KF real estate trust company are dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

Purport of claim

Attached Form 1, 2014, dated July 10, 2014, issued by the Defendant against Plaintiff KF real estate trust companies

On September 10, 2014, the disposition of imposition of KRW 1,929,590 in aggregate, including the property tax, etc., written in the register, was revoked (as of July 14, 2014, the "statement on July 10, 2014" and the " September 17, 2014" appears to be written in each clerical error of " September 10, 2014," which was written in the separate list 2,929,590, which was written in the separate list 2,92,630, and which was written in the separate list."

Reasons

1. Details of the disposition;

A. On or before January 1, 2014, the enforcement date of the Local Tax Act (amended by Act No. 12153, Jan. 1, 2014; hereinafter referred to as the "former Act") amended as a company engaging in the ancillary movable property trust business (hereinafter referred to as "Plaintiff K non-real estate trust") entered into a real estate trust agreement under the Trust Act (hereinafter referred to as "the trust agreement in this case", and completed the registration of the trust of the trust property in this case with respect to the trust property in accordance with attached Table 1, in view of each real estate stated in the "name of the object" column of the Local Tax Act (hereinafter referred to as the "former Act").

B. The Plaintiff UPS Specialized in Asset-Backed Securitization (hereinafter “Plaintiff Special Purpose Company”) is the first beneficiary under the instant trust agreement (such as disposal costs and trust fees, etc. from the proceeds of the sale of trust assets, and the principal and interest, etc. within the scope of the remaining amount after deducting the right of the right holder from the proceeds of the sale of trust assets) established for the purpose of acquiring or transferring claims, security rights, and other property rights (asset-backed assets) pursuant to the Assets Securitization Act.

C. Under Article 107 (1) 3 of the Amendment Act, the main sentence of Article 1 and Article 17 (1) of the Addenda (hereinafter collectively referred to as the "Supplementary Provisions of this case"), the Defendant is the trustee of the trust property of this case.

As indicated in the separate sheet No. 1 on July 10, 2014 with respect to the Plaintiff’s non-real estate trust, each property tax was imposed as shown in the separate sheet No. 2 on September 10, 2014 (hereinafter “instant disposition”).

[Grounds for Recognition] Unsatisfy, Gap evidence 1, Eul evidence 1-1-2, each entry, and all pleadings

2. The plaintiffs' assertion

Since the provisions of the Local Tax Act stipulating the person liable to pay property tax on trust property as a truster was newly established on December 27, 1993, there was no change from the truster to the truster to the truster. Thus, the disposition of this case imposed on the person liable to pay property tax on trust property as the trustee pursuant to Article 107 (1) 3 of the amended Act and the supplementary provisions of this case violates the prohibition of retroactive legislation or the protection of trust and trust.

3. Relevant statutes;

The entries in the attached Table-related statutes are as follows.

4. Whether litigation by the plaintiff special purpose company is legitimate

The defendant asserts that the plaintiff special purpose company is not the other party to the disposition of this case and there is no standing to sue. The plaintiff special purpose company is not the other party to the disposition of this case, and even a third party who is not the direct other party to the administrative disposition has legal interest to seek the revocation of the administrative disposition, the standing to sue should be recognized. However, the legal interest here refers to cases where there is a direct and specific interest protected by the law based on the relevant disposition, but it does not include cases where there is any indirect or factual and economic interest (Supreme Court Decision 2002Du1267 Decided September 23, 2003).

[Reference]

However, as seen earlier, as the Plaintiff special purpose company is only a third party, who is not the direct other party to the instant disposition, and even if the Plaintiff special purpose company holds preferential rights to the instant trust property, and as a result, the Plaintiff special purpose company suffers disadvantages as to the amount equivalent to the property tax, this constitutes economic and factual interests, and it does not constitute infringement of the legal benefits directly protected by the Local Tax Act. If the Plaintiff special purpose company expands standing to sue to the same case as the Plaintiff special purpose company, it would result in granting standing to sue to the other party to the tax disposition or to those who hold preferential rights to reimbursement in relation to the object of taxation. Accordingly, the Plaintiff special purpose company cannot be deemed to have a legal status to seek the revocation of the instant disposition itself, which was made against the Plaintiff K non-real estate trust. Ultimately, the Plaintiff special purpose company cannot be deemed to have standing to sue as stipulated in Article 12 of the Administrative Litigation Act, and thus, is unlawful.

5. Whether the part of the claim for revocation of the Plaintiff’s non-real estate trust, which was filed on July 10, 2014, Nos. 2 through 4 of Attached Table 1, is lawful

Ex officio, a suit for cancellation must be filed within 90 days from the date on which the disposition, etc. is known (Article 20(1)2 of the Administrative Litigation Act). According to each of the statements in subparagraphs 2-1 and 2-2, the fact that the Plaintiff’s non-real estate trust was served with the Defendant’s notice of imposition Nos. 1-2 through 4 of the [Attachment No. 1] No. 1 of July 14, 2014 may be recognized. The record is apparent that the Plaintiff’s non-real estate trust was brought a suit on November 26, 2014 after the lapse of 90 days from the date on which the Plaintiff’s non-real estate trust was served.

Of the lawsuits in the court, the part seeking the revocation of the disposition of imposition Nos. 2 through 4 of the [Attachment 1] No. 1 as of July 10, 2014 is unlawful after the lapse of the period for filing the lawsuit.

6. Determination on the remainder of the claim of the Plaintiff’s non-real estate trust

(a) Details of amendments to the Local Tax Act;

The main sentence of Article 107 (1) of the former Act stipulates that "any person who actually owns any property as of the property tax base date shall be liable to pay the property tax," and Article 107 (2) 5 of the same Act stipulates that "in the case of trust property which is not in accordance with paragraph (1) and registered in the name of the trustee pursuant to the Trust Act, the truster shall be liable to pay the property tax, and in the case of trust property, the truster shall be liable to pay the property tax.

However, the amended Act deleted Article 107 (2) 5, while the main sentence of Article 107 (1) provides that a person who actually owns property as of the date of property tax assessment shall be liable to pay property tax, and Article 107 (3) proviso of the same Act provides that "However, in the case of trust property registered in the name of the trustee under the Trust Act and registered in the name of the trustee, a trustee shall be deemed a person liable to pay property tax for each truster.

On the other hand, the supplementary provisions of this case provide that the above amendment provisions shall be enforced from January 1, 2014, and the trustee, who is not the truster, shall bear the property tax liability as to the trust contract concluded before the enforcement date of the amendment, as in the instant trust contract.

B. Whether the property right is infringed by the law of the court below's appeal

Article 13(2) of the Constitution prohibits the deprivation of property rights by retroactive legislation based on historical experience.In the past, it is against the provision of the Constitution in order to impose retroactive taxation or retroactive taxation even in cases where tax liability exists due to new legislation in the Constitutional Court.

Here, the type of retroactive legislation is whether the new law is applied to the fact-finding that has already been terminated or is acting as the fact-finding that is currently in progress, and the former is in principle not permitted under the Constitution, and the latter can be exceptionally permitted only when there are special circumstances. On the other hand, in principle, even though the latter is allowed, the point of view of protecting trust in the bridge process between the grounds for public interest and the request for protecting trust, which requires retroactive effect, is limited to the legislative formation right (see Constitutional Court Order 9Hun-Ba5, Apr. 26, 2001, etc.).

On or before January 1, 2014, the supplementary provision of this case, which applied the revised provision to the case where the property tax and three requirements are already met before the enforcement date of the amended Act, is not to change the taxpayer from the truster to the trustee, but to change the taxpayer from the property tax (the tax base date of the property tax is June 1 of each year, and the property tax can be divided on June 1, 2014) that meets the first taxation requirements after the enforcement date of the amended Act to the trustee, so it cannot be deemed as a genuine legislation that acts as a trustee. Accordingly, since the trust contract of this case was concluded before January 1, 2014, the reason for imposing the property tax is that the supplementary provision of this case is not an act of concluding a trust contract, but an act of holding assets as of the tax base date, which can not be seen as a violation of the principle of property right protection of the plaintiff's trust as of January 1, 2014.

C. Whether it violates the principle of protection of trust

From the principle of the rule of law under the Constitution, the principle of protecting trust is derived (The Constitutional Court 1995).

10. 26. 26. See the Decision 94HunBa12, etc.) If the public interest purpose of the enactment or amendment of the former Act is not justified in the destruction of trust of the parties in order to achieve a new legislation by causing the damage of the parties resulting from the enactment or amendment of the Act, that new legislation may not be allowed in accordance with the principle of protection of trust, in a case where the public interest purpose of the enactment or amendment of the Act is to stimulate the damage of the parties involved in the enactment or amendment of the Act is not justified (see, e.g., the Decision 9HunBa55, etc.). On the other hand, in order to determine the violation of the principle of protection of trust, on the other hand, the protection value of the infringed interest, the degree of the infringement, the degree of damage of

On the other hand, the amendment of the Local Tax Act, as seen earlier, changing a person liable to pay property tax from the person who is liable to pay property tax on trust property to the trustee, is intended to improve and supplement the problems that are not able to perform the disposition for arrears, such as the registration of property tax and property on trust property, and the seizure of trust property by the person who is registered in the name of the title of the title of the registration. This is consistent with the basic purpose of the Local Tax Act, which provides for matters concerning the imposition and collection of taxes that are the basis for local financial revenue,

On the other hand, the new liability to pay property tax, which is unexpected at the time of concluding the instant trust contract, shall be imposed on the trust interest in which the Plaintiff’s case real estate trust is infringed due to the amended Act.

Accordingly, the disposition on default was possible on the instant trust property. As a result, it is difficult to view that there is a substantial infringement of legal interests, since the calculated amount of property tax under Articles 110 and 111 of the amended Act is limited to the level that the calculated amount of property tax under Articles 110 and 111 of the amended Act does not exceed 2% of the current base value, and the trustee may recover the paid property tax preferentially from the proceeds from the sale of the trust property of the instant trust property, under title of the disposal cost of trust affairs.

If so, the degree of damage to trust interests formed before the enforcement of the amended Act and the above public interest to be realized by the amended Act cannot be greater than the former.In the event of the amendment of the Act, it is inevitable to resolve the conflict of interest to a certain extent between the existing legal order and the former. In addition, it is reasonable to view that the damage to trust caused by changing the taxpayer of property tax on trust property from the truster to the trustee is justifiable under the Constitution. contrary to this, the assertion of the Plaintiff K non-real estate trust is without merit.

7. Conclusion

Therefore, the part of the claim for revocation of the 4 disposition within the No. 1 No. 2 of the attached Table 1 No. 2 as of July 10, 2014 and the lawsuit of the Plaintiff’s special purpose company is unlawful, and thus, it is dismissed. The remainder of the Plaintiff’s non-real estate trust is dismissed, and it is so decided as per Disposition by the assent of all participating Justices,

Judges

Judges Kim Jong-young

Judges Roster

Judges Kim Jae- Jae

Note tin

1) On the other hand, the Defendant sent a notice of imposition of property tax, etc. (Attachment No. 1 Serial No. 1) to the Seocho-gu Seoul, Seocho-gu and 218, which was trusted by the construction company to the Plaintiff’s K non-real estate trust, by ordinary mail, and it is difficult to find when the above notice reached the Plaintiff’s K non-real estate trust, and it does not determine as to this part as to this point.

Site of separate sheet

A person shall be appointed.

/Local Tax Act (amended by Act No. 12153, Jan. 1, 2014)

§ 107. Taxpayers

(1) A person who actually owns property as of the tax base date shall be liable to pay property tax: Provided, That in any of the following cases, each of the following persons shall be deemed a person liable to pay property tax:

3. In cases of trust property registered and recorded in the name of the trustee under the Trust Act: The trustee in cases of bankruptcy classified for each truster. In such cases, a taxpayer in cases of property classified for each truster shall be deemed a different taxpayer.

§ 110. Tax bases

(1) The tax base for property tax on land, buildings and housing shall be the value calculated by multiplying the statutory standard price under Article 4 (1) and (2) by the fair market price ratio prescribed by Presidential Decree within the scope determined by any of the following, considering the trend of the real estate market, local financial conditions, etc.:

1. Land and buildings: From 50/100 to 90/100 of the statutory standard price;

2. Housing: From 40/100 to 80/100 of the statutory standard price.

ARTICLE 111 (Tax Rates)

(1) The amount of property tax shall be the amount calculated by applying the following standard tax rates to the tax base under Article 110:

1. Land:

(a) Objects of general aggregate taxation;

(b) Omission of special aggregate taxation;

(i)formers, paddy fields, orchards and forests: 0.7/100 of the tax base;

(b) Land for golf courses and high-class recreation centers: 40/1000 of the tax base;

A Addenda Act No. 12153, Jan. 1, 2014

Article 1 (Enforcement Date)

This Act shall enter into force on January 1, 2014.

Article 17 (Transitional Measures concerning Change in Taxpayers of Property Tax on Trust Property)

(1) Where a property tax liability becomes effective before this Act enters into force, notwithstanding the amended provisions of Article 107 (2) 5, the previous provisions shall apply.

/ former Local Tax Act (Amended by Act No. 12153, Jan. 1, 2014)

§ 107. Taxpayers

(1) A person who actually owns property as at the tax base date of property tax shall be liable to pay property tax: Provided, That in cases of public property, the equity right holder shall be deemed the person liable to pay the portion corresponding to the relevant shares (where the shares are not indicated, the shares shall be deemed equal), and in cases of the owner of a building and appurtenant land of a house, the calculated tax on the relevant house shall be deemed the person liable to pay tax on the portion calculated proportionally in the proportion of the statutory standard prices of the building objects and appurtenant land under

(2) Notwithstanding paragraph (1), any of the following persons as of the base date for the imposition of property tax shall be liable to pay property tax again:

5. In cases of trust property registered under the name of the trustee pursuant to the Trust Act, the truster (Provided, That in cases of trust property owned by the regional housing association under subparagraph 11 of Article 2 of the Housing Act and the workplace housing association under the same Act in money paid by the members of the workplace housing association, the workplace housing association, and the workplace housing association). In such cases, the trustee (in cases of the regional housing association, the association members of the workplace housing association) shall be deemed the tax manager under Article 13

참조조문