Attachment effect of shares entrusted to a delinquent taxpayer in the divided ownership title trust relationship

The attachment of shares entrusted to a delinquent taxpayer in the divided ownership title trust relationship is legally effective even after the above title trust relationship has ceased to exist.

Article 406 of the Civil Act

2014dan3081 Cancellation of attachment registration

LLL et al.

Republic of Korea and one other

June 11, 2014

July 16, 2014

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

2. The costs of the lawsuit shall be borne by the Plaintiff (Appointed Party).

Cheong-gu Office

1. The primary domicile: the plaintiff (appointed party; hereinafter referred to as the "Plaintiff") and the designated parties indicated in the annexed name list (hereinafter referred to as the "designated parties"); ① the defendant Republic of Korea completed the registration of cancellation of each registration of seizure completed on June 26, 199 by the Daejeon District Court TT-Support AA registry Office No. 000000 on June 26, 199, ② the defendant AA Si completed on April 17, 1998, the receipt No. 000000 on April 17, 1998, and (b) the receipt of each registration of seizure completed on June 13, 1998 by the receipt0000 on June 13, 1998.

2. Preliminary: (1) The defendant Republic of Korea completed the Daejeon District Court TT branch AA registry office of 0000 on June 26, 1999 with respect to each of the real estate of this case; (2) the defendant AA registry office of 1998 on each of the above real estate will implement the procedure for cancellation registration of each of the seizure registrations completed on April 17, 1998, the receipt No. 000000 on April 17, 1998; and (b) the receipt No. 0000 on June 13, 1998.

1. Basic facts

가. AA시 QQ면 WW리 000-0 임야 0000㎡(등록전환 전 같은 리 산 00-0 임야 0000㎡, 이하 '이 사건 분할 전 부동산'이라 한다)는 조SS(0000/0000지분 소유)를 비롯한 공유자들의 구분소유적 공유관계에 있었다.

B. For the enforcement of the amount in arrears against the SS, the Defendants’ respective registrations of seizure, such as the entries in the claims regarding the whole amount of the SS shares of the real estate before the division of this case (hereinafter “the seizure of each case”).

The registration has been completed.

C. Since then, co-owners including the SS have divided the instant real estate before the instant partition in accordance with each specific ownership portion through a lawsuit for ownership transfer registration due to the cancellation of title trust. Each of the instant real estate owned by the Plaintiffs, not the SS, and the designated parties after division, remains until now.

[Grounds for Recognition] Unsatisfy, Gap evidence Nos. 1-13 and 15 (including each number), the purport of the whole pleadings

2. Determination on Defendant Republic of Korea’s defense prior to the merits

In regard to the claim of this case by the plaintiffs against the above defendant, who is the owner of each real estate of this case, seeking the cancellation of the seizure registration against the above defendant, as the owner of each real estate of this case, the registration of seizure completed as stated in the purport of the claim as to the whole of the conciliationS shares among each real estate of this case, the above defendant should have filed an administrative litigation in order to seek the cancellation of the seizure registration on the ground that the cause for cancellation of seizure occurred. Thus, it is unlawful for the plaintiffs to file

However, if an administrative disposition is null and void, this cannot take effect as an administrative act from the beginning, and thus, the invalidation of such disposition can always be disputed at any time, and the court is not bound to seek such administrative disposition, and thus, it is not necessarily subject to the invalidity in the administrative litigation. Accordingly, the plaintiffs can claim that the registration of seizure by the above defendant is null and void and seek the cancellation thereof. Accordingly, the above defendant's defense is rejected.

3. Determination on the cause of the claim

A. The plaintiffs' assertion

The real estate before the division was divided into co-ownership relation between co-owners, including the SS, but the plaintiffs and the designated parties became owners of each of the instant real estate after division due to the cancellation of mutual title trust. However, each of the instant seizure registrations is null and void since each of the instant seizure registrations still remains in possession of each of the instant real estate owned by the Plaintiffs and the designated parties even after division. Even though each of the instant seizure registrations is not so, even if public sale is conducted due to the existence of the right to collateral security debts in Chocheon-do, it is unlikely that the remainder would be generated, and thus, each of the instant seizure registrations should be revoked pursuant to Article 53 (1) 1 of the National Tax Collection Act. Since the Defendants’ failure to cancel each of the instant seizure registrations is merely aimed at causing pain and damage to the Plaintiffs and the designated parties, each of the instant seizure registrations is null and void. Accordingly, the Defendants must express their intention to cancel each of the instant seizure registration around the Plaintiffs and the designated parties, and perform each of the instant seizure registration procedure.

B. Determination

In the event that the property subject to attachment is a real estate registered, the validity of registration shall be determined. If a co-ownership registration under the name of a delinquent taxpayer on the real estate subject to attachment is made through a title trust based on the intention of the truster, even if the truster owns the ownership, it shall be deemed that the co-ownership of the delinquent taxpayer on the externally belongs to the co-ownership of the trustee in accordance with the legal principles of title trust. Thus, inasmuch as the State externally seizes the property whose co-ownership belongs to the delinquent taxpayer, the attachment disposition shall be valid, and even if the transfer registration is completed to the title truster after the attachment disposition, there is no reason to deny the validity of the attachment disposition (see Supreme Court Decision 83Nu506, Apr. 24, 1984). In addition, since the co-owner’s right is not based on the whole co-owned property, the effect of the attachment of the co-ownership share extends to all co-owned property, and thus, the co-owner’s co-ownership and the co-owner’s co-ownership’s co-ownership’s co-ownership relation is not effective in common property.

In light of the above legal principles, as seen earlier, the Defendants’ co-ownership registration under the name of SS, the delinquent taxpayer at the time of the registration of each of the instant seizure against the Defendants’ co-ownership of SS shares 000/000 of the instant real estate before the instant partition was completed. Even according to the Plaintiffs’ assertion, the co-ownership registration of SS with respect to the instant real estate before the instant partition was completed through a mutual title trust based on the sectional co-ownership relationship among co-owners of the said real estate, including SS, and thus, the above co-ownership is deemed to have been reverted to SS. However, the effect of the cancellation of title trust is not retroactively retroactive to the past, and even if the mutual title trust relationship was terminated due to the termination of the mutual title trust relationship between the above co-owners of the instant real estate including SS and the instant real estate before each of the instant co-owner’s co-ownership registration was completed with respect to each of the instant real estate before each of the instant co-owner’s ownership registration was transferred to the future.

In addition, even if the grounds for cancellation under Article 53 (1) 1 of the National Tax Collection Act exist in each of the instant seizure, each of the instant seizure cannot be deemed null and void immediately due to such circumstance (if the Plaintiff applies for the cancellation of seizure to the Defendants and is rejected, it is difficult to deem that the circumstances and evidence alleged by the Plaintiffs alone exist in each of the instant seizure). Meanwhile, even upon examining all the evidence submitted by the Plaintiffs, it is insufficient to recognize that the Defendants did not cancel each of the instant seizure registration for the purpose of causing pain and damage to the Plaintiffs and the designated parties, and there is no other evidence to prove otherwise.

Therefore, the plaintiffs' primary and conjunctive arguments premised on the invalidity of each registration of seizure of this case cannot be accepted.

4. Conclusion

All of the plaintiffs' claims against the defendants are rejected.