[1] The validity of the disposition of the seizure of arrears against a third party's property, which is not a taxpayer (negative)

[2] In a case where a trust is made under the Trust Act, whether a trust property may be seized based on a taxation claim against a truster (negative)

[3] Contents of the national preferential right and the existence of a delay right to national tax (including the pertinent tax) claims (negative)

[4] In a case where the truster entrusted the inherited property to the truster, whether the inheritance tax claim imposed on the truster due to the inheritance constitutes "the right arising from the cause before the trust" under Article 21 (1) of the Trust Act (negative)

[1] Considering the provisions of Article 24 of the National Tax Collection Act, which stipulate the requirements for seizure as a disposition for arrears, the disposition of seizure against a third party’s property, which is not a taxpayer, is null and void as the contents of the disposition cannot be legally realized.

[2] Where a truster transfers the ownership of real estate to a trustee and a trust relationship under the Trust Act is established between the parties, unlike a simple title trust, the trust property shall belong to the trustee, and since it cannot be deemed as the truster’s property even after the trust is held, the trust property under the name of the trustee shall not be seized based on a claim

[3] The priority of national taxes recognized under Article 35 of the Framework Act on National Taxes refers to the validity of collecting national taxes in preference to other public charges and other claims in the compulsory repayment procedure, such as the compulsory execution, auction, and disposition on default on the taxpayer's property, and it does not recognize more specific rights or special security rights for taxation claims on the taxpayer's whole property. Thus, the property rights already transferred to a third party based on the priority of national taxes cannot be seized, and this also applies to the national taxes imposed on the pertinent property.

[4] Article 21(1) of the Trust Act permits compulsory execution or auction of the trust property only when the right arising prior to the trust or the right arising from the performance of the trust affairs is due to the inheritance of the trust property to the truster. Even if the property subject to trust is a national tax imposed by inheritance to the truster, unless the property is seized before the trust under the Trust Act takes place, the taxation claim falls under the "right arising from the cause prior to the trust" under Article 21(1) of the Trust Act.

[1] Article 24 of the National Tax Collection Act / [2] Article 21 (1) of the Trust Act, Article 24 of the National Tax Collection Act / [3] Article 35 of the Framework Act on National Taxes / [4] Article 21 (1) of the

[1] Supreme Court Decision 92Nu12117 delivered on April 27, 1993 (Gong1993Ha, 1588) / [2] Supreme Court Decision 86Da545, 86Meu2876 delivered on May 12, 1987 (Gong1987, 958) / [2] Supreme Court Decision 92Nu8163 delivered on April 27, 1993 (Gong193Ha, 1605) / [3] Supreme Court Decision 83Meu105 delivered on November 22, 1983 (Gong1984, 99) 87Da3222 delivered on June 14, 198 (Gong198, 198, 1029)

Plaintiff (Law Firm Gangseo-dong General Law Office, Attorneys Dok-young et al., Counsel for plaintiff-appellant)

Korea

Seoul High Court Decision 95Na22902 delivered on March 12, 1996

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

Since the provisions of Article 24 of the National Tax Collection Act, which stipulate the requirements for seizure as a disposition for arrears, limit the object of seizure to the taxpayer's property, a disposition of seizure against a third party's property, which is not a taxpayer, can not be legally realized (see Supreme Court Decision 92Nu12117, Apr. 27, 1993). Thus, if a truster transfers the ownership of real estate to a trustee and a trust relationship under the Trust Act is established between the parties, the trust property shall belong to the trustee, unlike a simple title trust, and even after the trust is made, it shall not be deemed that the truster's property still belongs to the trustee (see Supreme Court Decision 92Nu8163, Apr. 27, 1993). Thus, a disposition of seizure against a truster cannot be seized against the trustee's trust property based on a tax claim against the truster.

In addition, the priority of national taxes recognized under Article 35 of the Framework Act on National Taxes refers to the effect of collecting national taxes in preference to other public charges or other claims in the compulsory refund procedure such as the compulsory execution, auction, and disposition on default against the taxpayer's property, and it does not recognize the general preferential rights or special security rights for taxation claims on the whole property of the taxpayer. Thus, the property rights that have already been transferred to a third party based on the priority of national taxes may not be seized, and the same applies to the case of national taxes imposed on the property concerned.

Meanwhile, Article 21(1) of the Trust Act permits compulsory execution or auction of trust property only when the right arising before the trust or the right arising from the performance of the trust business is based on the right arising before the trust. Even if the property subject to trust is a national tax imposed by inheritance to the truster, unless the property subject to trust is seized before the trust under the Trust Act takes place, the taxation claim cannot be deemed to fall under the "right arising from the cause before the trust" under Article 21(1) of the Trust Act, and the reason why the truster abuses the above system to avoid the collection of national tax in preparation for such a case, is that there is a system such as the cancellation of fraudulent act under Article 8 of the Trust Act or Article 30 of the National Tax Collection Act, etc.

Therefore, the attachment disposition of this case where the trust property is seized on the basis of the inheritance tax claim against the truster after the trust under the Trust Act was made shall be null and void as a matter of course, and the judgment of the court below that held to this purport shall be justified and it shall not be deemed that there

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)