Seoul Administrative Court 2010Guhap39526 ( October 25, 2011)

Seocho 2010west 1875 ( December 28, 2010)

Disposition of seizure against a third party's property shall be null and void as it is impossible to legally realize the contents of such disposition.

The term "the right that has arisen in the course of carrying out the LO Trust Affairs, which exceptionally provides that the trust property may be subject to compulsory execution or auction for the trust property" in the proviso to Article 21 (1) of the Trust Act shall include only the right that makes the trustee a debtor, but not including the right

Article 24 of the National Tax Collection Act

2011Nu10876 Ascertainment of invalidation, etc. of attachment disposition

XX Co., Ltd

The Director of the Pacific District Office

Seoul Administrative Court Decision 2010Guhap39526 decided February 25, 2011

June 26, 2012

July 20, 2012

1. The defendant's appeal is dismissed.

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

1. Purport of claim

(1) The primary purport of the claim

The Defendant’s attachment disposition against the Plaintiff on April 22, 2010 against the deposit claims listed in the separate sheet No. 1, on April 26, 2010, on the real estate listed in the separate sheet No. 2, on April 26, 2010, and on July 27, 2010, on the real estate listed in the separate sheet No. 3, confirming that each disposition is invalid.

(2) Claim of the preliminary claim

The Defendant’s seizure disposition against the Plaintiff on April 22, 2010 against the deposit claims listed in the separate sheet No. 1, the seizure disposition on the real estate listed in the separate sheet No. 2 on April 26, 2010, and the seizure disposition on the real estate listed in the separate sheet No. 3 on July 27, 2010, respectively, shall be revoked.

2. Purport of appeal

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

1. cite the judgment of the first instance;

The court's explanation on this case is consistent with the reasoning of the judgment of the court of the first instance except for the following matters. Thus, this court's explanation is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Parts in height:

In addition, the part of the first instance court's 4th to 16th 6th 16th 16th 16th 200 is as follows.

C. Determination

(1) According to the purport of Article 1(2) of the Trust Act, in full view of the gaps in the legislative intent of ensuring the independence of trust property in order to facilitate the purpose of the trust, the trust property under the Trust Act is entirely and externally owned by the trustee and its title is not reserved to the truster in the internal and external relationship with the truster, and Article 21(1) of the Trust Act is interpreted as including exceptionally the right to compulsory execution or auction against the trust property in the proviso to Article 21(1) of the Trust Act, and it does not include where the truster is a debtor. Considering the provisions of each Article of Article 24 of the National Tax Collection Act, which provides for the requirements for seizure as a disposition on default, the disposition of seizure against a third party’s property, which is not a taxpayer, cannot be legally realized and thus becomes null and void (see, e.g., Supreme Court Decision 201Du46122, Apr. 12, 2012).

Meanwhile, “the right arising before the trust” under the proviso of Article 21(1) of the Trust Act refers to the case where a claim for the trust property itself has already been established, such as where a mortgage has already been established on the trust property before the trust was made, and all claims arising with respect to the trustor before the trust was made (see, e.g., Supreme Court Decision 86Da545, May 12, 1987).

"(2) We examine this case. According to the above facts, the deposit claims listed in the separate sheet No. 1 are deposit accounts and operating accounts related to the trust property of this case under the name of the plaintiff, and each real estate listed in the separate sheet No. 2 and No. 3 is transferred to the plaintiff as a trustee under the trust contract of this case. The tax claim of this case where the defendant seized the above deposit claims and each real estate cannot be deemed to be "the right arising from the trust business under the proviso of Article 21 (1) of the Trust Act" as a tax claim against XX, and it cannot be deemed to be "the right arising from the trust business" for the purpose of the trust itself, such as where a mortgage has been established before the trust property was established. Thus, the disposition of this case is made against the plaintiff's property, who is not a taxpayer, based on the P tax claim against whom the taxpayer is the taxpayer, and it shall be deemed null and void automatically."

Therefore, the plaintiff's primary claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed, and it is so decided as per Disposition.