Disposition of attaching trust property shall be null and void.

Real estate collateral trust property is the property that the non-party company entrusted to the plaintiff, a trust company, and the seizure disposition is null and void since it is a disposition for the property of a third party, not the delinquent, and the tax claim for the trust property that is allowed to be enforced refers only to the tax claim imposed on the trustee.

2010Guhap4041 Nullification of attachment disposition

XX Real Estate Trust Co., Ltd.

O Head of tax office

June 1, 2011

July 6, 2011

1. It is confirmed that each attachment disposition taken by the Defendant against the real estate listed in the attached Form 1’s Schedule against the Plaintiff on May 13, 2009 is null and void.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On December 2, 2005, the non-party-party-party-party-party-based development (hereinafter referred to as the "non-party-party-party company") entered into a sale-type trust contract with the non-party-party-provided housing guarantee company on the above real estate in order to implement the sale-sale-type apartment of the 'WOOOO' (hereinafter referred to as the "the apartment of this case") that will be newly built on the non-party-party 1653-8 and 106 parcels in Ulsan-Gu, Ulsan-dong, and completed the registration of ownership transfer on the same day.

B. Upon termination of the above trust agreement on August 27, 2008, the non-party company entered into a real estate security deposit agreement on October 1, 2008 with the plaintiff on the unsold apartment including the real estate listed in the attached Table 1's list (hereinafter "real estate in this case"), and completed the registration of ownership transfer for the real estate in this case as a reason of trust in the future of the plaintiff on the same day.

C. On the other hand, the non-party company filed a voluntary declaration of the amount of value-added tax 2,05,079,650 won for the amount of two scheduled years (the amount of supply from July 1, 2008 to September 30, 2008) on October 27, 2008.

D. The Defendant seized the instant real estate on May 13, 2009 (hereinafter “instant disposition”) on the ground that the non-party company failed to pay the tax amount of KRW 2,186,765,090 (hereinafter “the right to collect this tax amount”) including value added tax for the portion scheduled to be paid by the non-party company in 271 in 2008.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 13, Gap evidence 2, Eul evidence 1 to 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The Plaintiff’s assertion is as follows.

The Defendant seized the instant real estate based on the instant taxation claim. However, the instant real estate is a property that was trusted to the Plaintiff by the Nonparty Company, not the Nonparty Company, and its owner is not the Plaintiff, and thus, the instant disposition is unlawful and its defect is grave and apparent, and thus, its

(2) The defendant's assertion is as follows.

Since the taxation claim of this case was established before the trust was made under the Trust Act, the taxation claim of this case occurred due to the reasons before the trust was made, and the disposition of this case is legitimate.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Determination

(1) Article 24 of the former National Tax Number Act (amended by Act No. 10527, Apr. 4, 201) that provides for the requirements for seizure as a disposition on default (amended by Act No. 10527, Apr. 4, 201) provides for the requirements for seizure, is limited to a taxpayer’s property. As such, a disposition of seizure on a third party’s property, which is not a taxpayer, cannot be legally realized (see, e.g., Supreme Court Decision 2000Da68924, Feb. 23, 2001). Moreover, if a trust relationship under the Trust Act is established between a truster and a truster by transferring the ownership of real estate to a trustee, the trust property is attributed to the trustee and cannot be deemed as a truster’s property after new entrustment. Accordingly, even if a truster is a taxpayer, seizure on a trust property reverted to a trustee based on a truster’s tax claim against the truster’s property is invalid as a seizure on a third party’s property (see, e.g.

As seen earlier, the instant real estate is owned by the Plaintiff as it is the property that the Nonparty Company entrusted to the Plaintiff. The instant disposition is null and void since it is a seizure against a third party’s property, not a delinquent taxpayer. Moreover, since 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 instant real estate, which is a trust property, is null

(2) According to the proviso of Article 21(1) of the Trust Act, the Defendant asserts that the instant disposition is lawful, since the Defendant’s claim against the Nonparty Company constitutes “the right arising before the trust or the right arising in the course of performing the trust business” or “the right arising in the course of performing the trust business.”

The term "right arising from the reason before the trust" in this context means the case where a truster has the right to enforce compulsory execution or auction against the separated trust property before the new trust, such as the case where the truster created a mortgage, etc. or seized real estate based on an executory claim (see, e.g., Supreme Court Decisions 86Da545, May 12, 1987; 86Da17424, Oct. 15, 1996). According to the above facts acknowledged earlier, since the defendant did not seize the real estate of this case based on the taxation claim of this case before the trust under the Trust Act exists, it cannot be deemed as falling under "right arising from the reason before the trust" even if the duty to pay the non-party company was established before the trust of the real estate of this case, as alleged by the defendant.

On the other hand, "the right arising in the course of performing the trust affairs" means the right that occurred against the trustee due to the ordinary conduct of the trustee who performs the trust affairs, such as the management or disposal of the trust property (see Supreme Court Decision 2005Da5843, Jun. 1, 2007). It also includes a taxation claim on the trust property, which is the right arising in relation to the trust property. However, considering the purpose of exceptionally allowing compulsory execution on the trust property, it is reasonable to view that the scope of taxation is limited to taxes imposed on the trustee among taxes incurred in the course of performing the trust affairs by the trustee. Since the taxation claim of this case is the right to collect taxes arising in the course of the construction of the trust property by the non-party company to supply it to the buyer, it shall not be deemed that the claims against the non-party company, which is the truster, and it shall not be deemed that the new construction and sale of the building are not trust affairs arising from

Therefore, the taxation claim of this case does not fall under the "right arising before the trust" or the "right arising in the course of dealing with the trust business", and the defendant's argument is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.