Whether the plaintiff has priority to the disposal price of real estate held in trust, claiming that he/she is the first pledge holder of the property held in trust.

Since the pertinent tax is related to the trust principal, it should be paid in preference to the sales price of the instant real estate, which is trust property, in accordance with the trust agreement.

20127rat65695 Verification of Claim for Payment of Deposit Money

KoreaA

KimB et al. 23

August 29, 2013

September 26, 2013

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

Between the Plaintiff, the Defendant, the Gangnam-gu Seoul Metropolitan Government, and the Seoul Metropolitan Government (Defendant 20), it is confirmed that the KoreaCC bank deposited under the Seoul Central District Court No. 2012, Jun. 29, 2012, 2012, and between the Defendants, the KoreaCC bank deposited under the Seoul Central District Court No. 12484, Jun. 29, 2012, the relevant taxes and OOOOO members, and each deposit is the Plaintiff.

1. Facts of recognition;

(a) A real estate management and disposal trust agreement between DD and the KoreaCC Bank;

1) DDD는 OO시 OO구 OO동 67-1 대 936㎡(이하 '분할 전 67-1 토지'라 한다， 위 토지 중 DDD의 지분은 786/849이었다)와 같은 동 70-20 대 155㎡， 같은 동 70-21 대 142㎡， 같은 통 70-22 대 122㎡， 같은 통 70-23 대 116㎡ 토지 위에 지하 5층， 지상 8층， 연면적 7，892.65㎡ 규모의 EEEII 상가(이하 '이 사건 상가'라 한다) 신축사업을 추진함에 있어 2003. 6. 30. 한국CC은행과 위 토지들 및 그 지상건물의 소유권 보전 및 처분업무 등의 수행을 목적으로 하는 부동산관리 및 처분 신탁계약(이하 '이 사건 신탁계약'이라 한다)을 체결하였다.

2) Under the instant trust agreement, DDR completed the registration of ownership transfer on June 30, 2003 with respect to the above land (limited to DDR ownership shares with respect to land 67-1 before division) by reason of trust to the KoreaCC Bank.

B. Main terms of the instant trust agreement and special agreement

1) Main terms of the trust deed

Article 6 (Disposal of Trust Real Estate)

(1) The KoreaCC Bank may dispose of trust real estate in consultation with DD in accordance with the disposal price deemed appropriate, and the method and conditions of disposal.

(2) Notwithstanding paragraph (1), the disposal price, disposal method, disposal conditions, order of settlement of the purchase price, etc. shall be followed, if any, otherwise determined.

Article 8 ( Original of Trust)

The original of a trust shall be the trust real estate or the property acquired by subrogation thereof, the penalty arising in connection with the sales price and disposal procedure of the trust real estate, the profits arising from the management of the trust property, and the borrowings under Article 17 and other similar ones.

(ii) the essential terms of the special agreement;

DD, the KoreaCC Bank, the FF Mutual Savings Bank, the H Mutual Savings Bank, the JB Mutual Savings Bank, the JB Mutual Savings Bank, and the JB Mutual Savings Bank (hereinafter collectively referred to as the “Savings Bank”) concluded a special agreement in addition to the instant trust agreement on June 30, 2003 (hereinafter referred to as the “instant special agreement”), and the main contents thereof are as follows.

Article 4 (Pledge of Right to Benefit)

In order for savings banks to provide credit to DD, and to secure savings banks' claims, low-income banks establish a pledge on DD's beneficial rights at the same time as the trust registration is made, and details related to the establishment of a pledge shall be governed by the pledge contract entered into between DD and the Savings Bank.

Article 6 (Disposal of Trust Real Estate)

(1) A trust real estate may be disposed of in any of the following cases:

1. Where it falls under a cause for loss of the benefit of time limit for extension of credit set forth in the basic terms and conditions of credit transactions;

2. Where DD and savings banks decide to dispose of such securities through mutual consultation;

(4) The priority order of payment following the disposal of real estate in trust shall be as follows:

1. Trust fees;

2. Taxes and public charges related to the trust principal, and other various fees and expenses related to the disposition;

3. Principal and interest of savings banks and late payment penalty;

4. Contract construction works, progress payment, and late-payment delayed payment;

5. Business earnings;

Article 10 (Tax Duties)

Tax affairs related to trust property shall be reported and paid by D at the expense of DD.

(c) Establishment of a pledge on DD's trust interest;

In order to secure the right to trust under the trust agreement of this case, savings banks have established the first priority pledge of the maximum debt amount and among savings banks, the FF mutual savings bank was set up the second priority pledge of the maximum debt amount of the maximum debt amount of the savings bank.

(d) Dividing 67-1 land before the split-off.

1) In order to divide 786/849 shares of 786/849 shares among the land which is the object of the instant trust contract before the division, among the 67-1 land which is the object of the instant trust contract and to make it an object of the trust contract, DDD agreed with KK company, which is the co-owner of the 67-1 land prior to the division, to own 866m2 (786/849 shares out of 936m2) necessary for the instant project site, DD decided to own the 866m2, and the remaining 70m2, which is owned by KK company. Accordingly, on September 18, 2003, DD divided the 67-1 p.m. and 866m2 into 67-3m2, and 70m2, U.S. dollars.

2) On September 25, 2003, DDD completed the registration of ownership transfer in the name of DD on the ground of reversion of trust property (trust termination) with respect to the share of 786/849 square meters and 786/849 square meters among 67-1 square meters and 866 square meters of OOdong 67-3 square meters, and it became a single owner of 67-1 square meters and 866 square meters of OOdong 67-1 and became a single owner of 67-6 square meters of Odong 866 square meters among 67-1 square meters of Odong 67-6 square meters of Odong 866 square meters and completed the registration of ownership transfer on the ground of trust with the Korean Federation (hereinafter referred to as "O67-1 square meters and 8664 square meters of O64.66.664 square meters of 27.664 square meters of O-264.66664 square meters of O-24.

(e) Establishing a pledge of several buyers;

Defendant KimB and 16 others (hereinafter referred to as “Defendant buyers”) concluded a pledge contract on the right to benefit under the instant trust agreement with DD in order to secure the claim held by DD as a purchaser of the instant commercial building from DD.

(f) Public sale of trust real estate by auction; and

1) DDD는 저축은행들로부터 대출받은 대출금채무에 대한 기한의 이익을 상실하였고， 이를 이유로 저축은행들은 2005. 5. 한국CC은행에 대하여 위 분할된 OO동 67-1 대 602㎡와 같은 동 70-20 대 155㎡， 같은 동 70-21 대 142㎡， 같은 동 70-22 대 122㎡， 같은 동 70-23 대 116㎡(이하 위 토지들을 통틀어 '이 사건 부동산' 이라 한다)의 공매를 신청하였으며， 한국CC은행은 한국자산관리공사에 이 사건 부동산의 매각을 위임하였는데， 여러 차례 유찰에 따라 진행이 보류되었다가 2012. 2.경 다시 공매가 재개되었다.

2) On March 2012, the Plaintiff was awarded a successful bid for the instant real estate in the above public sale procedure (hereinafter “instant public sale procedure”).

G. Acquisition of Plaintiff’s loan claims, etc.

On September 29, 2011, savings banks transferred loans, claims, and pledges on the beneficial rights under the trust contract held against DD to the Plaintiff, and notified DD and the KoreaCC bank of the above transfer on October 7, 201.

(h) Requests for delivery of relevant taxes, etc.;

In the procedure of the instant public auction, Gangnam-gu Office, and Seoul Special Metropolitan City on June 2012, the division of the instant case

For the purpose of the so-called tax (tax imposed on the property in question) on movable property, the applicant filed a request for the issuance of OOOO (Comprehensive Real Estate Tax + OOOOOO(Real Estate Tax) in Gangnam-gu Office, Gangnam-gu, Seoul + OOOO(Acquisition)(Acquisition Property Tax) and hereinafter referred to as the "tax in this case").

(i) Action to confirm the status of the Defendant buyer as the pledgee

From among the defendants' buyers, the remaining buyers except the defendant Jeong L and ParkM are currently pending in the lawsuit after concluding a retrust contract on the land of this case 67-1 among the real estate of this case, on the ground that the right to benefit under the retrust was omitted from the establishment of the sub-trust in the name of the savings bank, the first sub-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de

(j) Deposit of the proceeds from the KoreaCC Bank;

1) OOdong 67-1 other land

The KoreaCC Bank intended to pay the pertinent tax to the tax creditors in the course of the settlement of proceeds from the sale of the auction procedure of this case, and when the plaintiff raised an objection, among the pertinent tax, it deposited the instant tax in accordance with the Seoul Central District Court No. 2012 Geum-12484, hereinafter referred to as the “first deposit of this case”) with respect to the OOOO (OOOOxx 535/1137) corresponding to the ratio of the area of land other than the OOdong 67-1 land in the real estate of this case.

(ii)O-dong 67-1 land

The KoreaCC Bank deposited the Plaintiff and the Defendants as the principal deposit in the Seoul Central District Court No. 2012, No. 12486, which was calculated according to the above OO-1 ratio of the size of the land among dividends other than expenses, out of the successful bid price for the public sale process of this case (hereinafter “the second deposit”).

The KoreaCC Bank intended to pay dividends to the relevant tax holders on the basis of the deposit cause of the second deposit of this case, and the OOOOO (OOOOx 602/1137) corresponding to the ratio of the size of the land 67-1 among the pertinent taxes of this case. However, the plaintiff raised an objection, and part of the number of the buyers of the defendant filed a lawsuit to confirm the status of the pledge holders, and it is difficult to know who the plaintiff and the above buyers are the first priority pledge holders, and there is no Gangnam-do tax office, Gangnam-gu Seoul Metropolitan Government, the Seoul Metropolitan Government Mayor, the Seoul Metropolitan Government Mayor, the Seoul Metropolitan Government Mayor, the Seoul Metropolitan Government Vice Governor, and the Northbuk-do Office of Seoul Metropolitan Government (excluding the corresponding tax of this case) imposed on DD, and made a disposition on default, based on the legal date of the above taxes and the date of the establishment of the pledge on the right to benefit, and the reasons for the execution of the provisional attachment are not finalized until the status of the pledge holders.

[Reasons for Recognition] The non-contentious facts, Gap evidence 1 through 12 (including the number number in the case with virtual number), and the purport of the whole pleadings

2. The plaintiff's assertion as to the cause of claim

The former Local Tax Act (amended by Act No. 10012, Feb. 4, 2010) provides that a truster shall be liable for property tax in the case of trust property registered in the name of a truster under the Trust Act, and the Gross Real Estate Tax Act provides that a specific person among taxpayers liable for property tax shall be the person liable for tax payment of comprehensive real estate tax. The instant real estate falls under trust property registered in the name of the KoreaCC bank, a trustee under the Trust Act, and thus, the person liable for payment of property tax and comprehensive real estate holding tax, etc. is DD, a truster.

As long as a tax claim against a truster cannot be subject to compulsory execution or disposition on default against the trust property under the name of the trustee, and it does not be subject to seizure before the trust takes place, it does not correspond to "the rights arising from the reasons before the trust or the rights arising from the performance of trust affairs" under Article 22 (1) of the Trust Act. Therefore, the claim for delivery of the pertinent tax in this case by the Gangwon-do Office, the Gangwon-gu Office, and the Seoul Metropolitan Government is illegal. Therefore, the above tax creditors are not entitled to receive the corresponding tax in preference to the proceeds

If so, among the deposit money of each of the deposits of this case, the legitimate holder of the OOOO of this case is the plaintiff who is the first priority pledgee, so there is a benefit to seek confirmation of the claim for payment of deposit.

3. Determination

A. As to the main safety defense of Defendant National Health Insurance Corporation, and ParkM

Although the above defendants asserted that the lawsuit of this case should be dismissed, and where the deposited person has relative uncertainty, such as each of the deposits of this case, the plaintiff who is one of the deposited person shall be deemed to have the interest to be confirmed that the other deposited person has the right to claim for payment of deposit against the plaintiff. Therefore, the above defendants' assertion is without merit.

B. As to the pledgee of OO-dong 67-1 land

① Of the pre-division 67-1 land which is the object of trust under the instant trust agreement, 786 m2, 849 m2, 87-1, and 866 m2, which is the object of trust under the re-trust agreement, are substantially the same as the site for the instant building for the instant building. However, since the contract was concluded without partition of co-owned property at the time of the instant trust agreement, the trust agreement was concluded for 786 m2 of the pre-division 67-1 land. ② The registration of ownership in the name of DD on the ground of termination of trust on the pre-division 67-1 and 866 m2 and the registration of trust in the name of the KoreaCC bank was concluded on September 25, 203, the genuine intent of the parties to the trust agreement was to be excluded from the pre-division 67-1, and the trust agreement was to be excluded from the trust agreement and the trust agreement of 76 m28-1, 2003.

Therefore, the pledgee for the right to benefit of the OO-dong 67-1 is judged to be the plaintiff.

C. As to whether the Plaintiff has the right to claim the payment of deposit on the pertinent tax portion

1) According to the purport of Article 1(2) of the Trust Act, the trust property under the Trust Act is entirely and externally owned by the trustee and its ownership is not reserved to the truster in the internal and external relationship with the truster, and Article 22(1) of the Trust Act provides that the trust property may be subject to compulsory execution or auction against the trust property exceptionally under the proviso of Article 22(1) of the Trust Act, and it does not include any seizure of the trust property owned by the trustee or any distribution of the trust property at the auction procedure of the court of execution with respect to the trust property (see Supreme Court Decision 2010Da67593, Jul. 12, 2012).

2) In light of the above legal principles, and the person liable for payment of the pertinent tax is DD, so the creditors of the pertinent tax are not entitled to receive the disposal price preferentially from the sale price of the instant real estate, which is trust property, solely on the ground that the pertinent tax is

3) Under the instant trust agreement, where there is a separate provision on the disposal price, disposal method, disposal order, sales order, etc. of the trusted real estate (Article 6), and the instant special agreement concluded by the Savings Bank, the Savings Bank, and the Korea Savings Bank, may dispose of the trusted real estate in the event it constitutes a cause for loss of the maturity of the credit set forth in the credit basic transaction terms and conditions of the Savings Bank, and the priority order of payment following the disposal of the trusted real estate is given priority to the taxes related to the trust principal and the taxes related to the trust principal and the principal and interest of the Savings Bank and the damages for delay (Article 6 of the special agreement). However, Article 8 of the instant trust agreement provides, “The original trust is the principal of the trust, the profits arising from the management of the trust property, the borrowings under Article 7, and other similar profits arising from the sale price and disposal procedure of the trusted real estate, and therefore, the instant tax constitutes the principal of the trust and the principal of the loan of the Savings Bank shall be paid in preference to the principal and interest of the trust.

Moreover, the instant special agreement provides that DD should pay for the tax affairs related to trust property at the expense of DD (Article 10 of the special agreement).

4) As above, the DoD, the KoreaCC, and the Savings Bank set forth in the instant special agreement that they should take precedence over the tax and public charges related to trust principal over the loans of the Savings Bank, and the Plaintiff acquired a pledge right, etc. on loans, bonds, and rights to benefit under a trust agreement held by the Savings Bank against DoD, so the Plaintiff has no right to receive settlement of the sales price prior to the instant tax as a transferor. Accordingly, the Plaintiff’s claim against the Defendants is without merit.

4. Conclusion

All of the plaintiff's claims against the defendants are dismissed, and it is so decided as per Disposition.