Korea Deposit Insurance Corporation and 11 others (Law Firm Mail, Attorneys Go Jin-young, Counsel for the plaintiff-appellant)

Suwon District Court Decision 201Na1448 delivered on May 2, 201

March 24, 2016

Seoul Central District Court Decision 2015Gahap51052 Decided November 3, 2015

1. Revocation of the first instance judgment.

2. On June 27, 2014, it is confirmed that the Asian Trust Co., Ltd. deposited 452,744,160 won by the Seoul Central District Court Decision 13823 of 2014 and the right to claim the payment of deposit money on the interest accrued therefrom between the Plaintiffs and the Defendant is against the Plaintiffs.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts and plaintiffs' assertion

The court's reasoning on this part is as follows: (a) "(comprehensive real estate tax and special rural development tax)" after the fifth to the fifth 8th, etc. of the judgment of the first instance; and (b) "(c)" under the fifth 13th 5th 12 below. The plaintiffs are entitled to priority at the time of the trust contract of this case (Plaintiffs 2, 3, 9, 10, 12), have been transferred the status of priority beneficiary (Plaintiffs 7 and 8), and the trustee in bankruptcy of the priority beneficiary (Plaintiffs 1, 4, 5, 6, 11) (Plaintiffs 1, 4, 5, 6, and 11). Thus, they are cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. The defendant's assertion

The "property tax, etc. notified until the disposal price is received" under Article 22 (1) 2 of the Trust Contract of this case includes the property tax, etc. imposed on each real estate of this case, which is the truster of the real estate of this case, and thus, the Asian trust should pay an amount equivalent to the property tax, etc. imposed on the defendant prior to the plaintiffs, who are the priority beneficiary or the trustee in bankruptcy of the priority beneficiary, pursuant to the Trust Contract of this case. Therefore, since the right to claim for payment of the deposit of this case is to the defendant, the plaintiffs'

3. Determination

A. In light of the following, it is reasonable to view that the Defendant cannot seek payment of the amount equivalent to the property tax, etc. imposed on the Asia Trust based on Article 22(1)2 of the instant trust agreement, even though the pertinent tax, such as the property tax, etc., notified until the disposal price is received, is included in the pertinent tax, which is imposed on the truster, in the second order when the Asia Trust realized each of the instant real estate and settle the disposal price pursuant to the instant trust agreement as alleged by the Defendant.

1) The amount that the Defendant demanded to pay from the proceeds from the disposal of each real estate in Asia is the property tax, etc. imposed by the Defendant on Pule S&C, the truster of each real estate in this case. However, in order to secure the financial revenue of the State or local governments, a taxation claim is a taxation claim, etc., imposed by the Defendant. However, in its nature, a taxation claim is recognized as a preferential right to payment and a right to self-performance under the National Tax Collection Act or the Framework Act on Local Taxes, which is managed by a private autonomy, and its establishment and exercise can only be governed by the law in light of the principle of no taxation without law, and it is not permissible to realize the ultimate satisfaction of a taxation claim by imposing a tax obligation under a private contract that is not governed by the tax law, or by allowing it to guarantee it (see, e.g., Supreme Court Decisions 90Nu5399, Dec. 26, 190; 2013Da217054, Mar. 13, 2014).

2) In addition, in light of the purpose of the instant trust agreement and the intent of the parties to the instant trust agreement, it is difficult to regard Article 22(1)2 of the instant trust agreement as a contract for a third party for the purpose of having the Defendant acquire the right to the Asian trust directly, a trustee, and even if there is room to regard the said provision as a contract for the third party, it is also true that the Defendant is not entitled to acquire or exercise the tax claim against the Asian trust under the instant trust agreement, a private

B. In addition, considering the following as a whole, it is more reasonable to interpret that “property tax, etc. notified by the time the disposal price is received” as stipulated in Article 22(1)2 of the Trust Contract of this case includes only the pertinent tax imposed on a taxpayer by Asian Trust, a trustee, in relation to each real estate of this case.

1) As seen earlier, tax claims against a trustee cannot be newly established under a trust contract, which is a private contract. Under a trust contract, the trust property owned by the trustee cannot be seized, or dividends can not be paid from the auction procedure conducted by the court of execution for the trust property (see, e.g., Supreme Court Decisions 2010Du4612, Apr. 12, 2012; 2010Da67593, Jul. 12, 2012). In view of the above provisions, even in cases where the trustee fails to pay taxes, such as the property tax or comprehensive real estate holding tax, imposed on the truster when settling the disposal price of the trust property, even if the trustee does not pay taxes directly to the trustee, it is unreasonable to interpret the trustee as including the pertinent tax claims until the time when it comes to include the pertinent period of time. Moreover, it is reasonable to set forth in Article 22(1) of the Trust Contract that the local government should first settle the claims more than those imposed on the beneficiary, regardless of the rights of the above lessee’s first priority.

2) Although Article 22(1)2 of the Trust Contract of this case does not explicitly limit the pertinent tax imposed on the trustee who takes precedence over the claims of the priority beneficiary, Article 21(1)2 of the former Trust Act (wholly amended by Act No. 10924, Jul. 25, 2011; hereinafter the same) (Article 22(1) of the current Trust Act) (Article 21(1) of the former Trust Act (wholly amended by Act No. 10924, Jul. 25, 2011; hereinafter the same) which is one of the reasons that exceptionally requires compulsory execution, etc. against the trust property, is not limited to cases where “the time limit for the right to take place in the course of performing the trust affairs” under the Trust Act, the trust property under the former Trust Act is not reserved to the truster in the internal and external relationship with the truster. Article 21(1) of the former Trust Act is to ensure the independence of the trust property in order to achieve the purpose of the trust.

3) Meanwhile, Article 15 of the instant trust contract provides that taxes and public charges on real estate held in trust shall be borne by the truster, and where the truster does not pay them by the due date, the truster shall pay them on behalf of the trustee. In this case, the truster shall pay them to the trustee, including damages for delay, and Article 7 of the Special Agreement provides that the truster shall pay taxes and public charges imposed on the truster in relation to the trust property at the truster’s expense. In principle, the truster bears the burden of the truster. If the trustee pays the taxes and public charges imposed on the truster pursuant to Article 15(4) of the instant trust contract on behalf of the truster pursuant to Article 15(4) of the Trust Contract, the cost may be settled by priority over the money to be paid to the beneficiary. In such a case, the tax claims of the State or local government may result in substantially obtaining satisfaction prior to the right of the beneficiary, but this is a result arising only when the truster pays them on behalf of the truster and the truster fails to redeem it. Therefore, the relevant tax should not be interpreted as included in the relevant truster.

4) In light of Article 183(1) and (2) of the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010) that was enforced at the time of the conclusion of the instant trust contract, in cases of trust property registered under the name of the trustee pursuant to the Trust Act, the truster is liable for property tax in cases of trust property registered under the name of the trustee, and in cases of trust property not registered under the name of the trustee, in cases of trust property not registered under the name of the trustee, the truster is the person who actually owns the property that is the person liable for tax payment, and the trustee becomes the person liable for tax payment in cases of trust property not registered under the name of the trustee (see, e.g., Supreme Court Decision 2012Du26852, Nov. 27, 2014). Thus, it cannot be deemed that

C. Therefore, the instant deposit money is not the amount to be settled first to the Defendant with a tax claim, such as the property tax on Yellow T&C, who is the truster, but should be paid to the preferential beneficiary. Thus, the right to claim the return of the instant deposit is not the Defendant, but the Defendant, the trustee in bankruptcy of the preferential beneficiary or the preferential beneficiary under the instant trust agreement, and as long as the Defendant asserts that the other beneficiary of the deposit for repayment with the relative uncertainty has the right to claim the return, there is a benefit of confirmation.

4. Conclusion

Therefore, the plaintiffs' claim is reasonable. Since the judgment of the first instance, which different conclusions, is unfair, the plaintiffs' appeal is accepted, and the judgment of the first instance is revoked, and the right to claim for payment of the deposit of this case is confirmed to the plaintiffs.

Judges exhaustr fever (Presiding Judge)