Seoul High Court 2010Nu2027 ( December 15, 2010)

‘The right arising in the course of performing the trust affairs' refers only to the right of the trustee to the debtor, and it does not include the right of the truster to the debtor.

The attachment disposition of this case on the ground that a claim against the non-party company cannot be deemed as a claim against the plaintiff, which occurred in the course of trust affairs, and thus, the attachment disposition of this case on the ground of the tax claim against the non-party company is null and void.

Article 24 of the National Tax Collection Act

2011Du686. Invalidity of attachment disposition

XX Trust Company

Head of Central Tax Office

Seoul High Court Decision 2010Nu20227 Decided December 15, 2010

April 13, 2012

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Article 1(2) of the Trust Act provides, “The term “a trust” means a legal relationship in which a truster transfers a specific property right to a trustee, or takes other dispositions, and thereby makes the trustee manage or dispose of such property right for the benefit of the beneficiary, or for a specific purpose,” and Article 21(1) provides, “No compulsory execution or auction shall be conducted against the trust property: Provided, That this shall not apply to the case of the right arising from the cause before the trust or the right arising from the performance of the trust

According to the purport of Article 1(2) of the Trust Act, the trust property under the Trust Act shall be entirely and externally attributed to the trustee, and its ownership in the internal and external relationship with the truster is not reserved to the truster (see, e.g., Supreme Court Decisions 2000Da70460, Apr. 12, 2002; 2005Da9685, Sept. 7, 2007); and Article 21(1) of the Trust Act shall be deemed to have the legislative intent to ensure the independence of the trust property in order to smoothly achieve the purpose of the trust. In full view of the following, Article 21(1) proviso of the Trust Act provides that the trust property may be subject to compulsory execution or auction against the trust property as an exception to the proviso to Article 21(1) of the Trust Act refers only to the trust property whose debtor is the truster, and it does not include the right to make the

Meanwhile, considering the provisions of Article 24 of the National Tax Collection Act stipulating the requirements for seizure as a disposition on default, the disposition of seizure on a third party’s property, which is not a taxpayer, is null and void as the content of the disposition is not legally realized (see, e.g., Supreme Court Decision 96Da17424, Oct. 15, 196).

Upon accepting the judgment of the court of first instance, the court below acknowledged on April 19, 207 that the plaintiff and the XX Construction Co., Ltd. (hereinafter referred to as "non-party company") entered into the trust contract of this case for the purpose of preserving, managing, and disposing of the registration title of the trust property of this case after being entrusted with the trust property of this case from the non-party company under the Trust Act. The defendant, on June 31, 2008, has the tax claim of this case equivalent to the sum of the gross real estate holding tax for the non-party company's regular period portion of June 2008 and the seizure disposition of this case on March 31, 2009 by the non-party company as the delinquent taxpayer, which seized the seized real estate of this case among the trust property of this case. The "right arising from the execution of trust affairs" under the proviso of Article 21 (1) of the Trust Act refers to the right arising from the trustee's act related to the trust affairs of this case. The tax claim of this case cannot be seen as the trust property of this case against the plaintiff.

In light of the above provisions, legal principles, and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the proviso of Article 21 (1) of the Trust Act as otherwise alleged in the ground of appeal

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