Seoul Administrative Court 2013Guhap31813 (2014.09.04)

Even if the registration of preservation of ownership of the defaulted taxpayer's title was made by title trust, the ownership belongs to the defaulted taxpayer.

If the registration of ownership preservation of the defaulted taxpayer's title to a building subject to attachment was made through a title trust based on the intention of the parties concerned, even if the building was newly constructed under the name of the defaulted taxpayer, such ownership shall be deemed to have been attributed to the defaulted taxpayer in accordance with the legal principles of title trust.

2014Nu64638 Revocation of revocation of revocation of attachment

AAA, Inc.

Head of Central Tax Office

Seoul Administrative Court Decision 2013Guhap31813 decided October 4, 2014

on October 03, 2015

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked.

The defendant's disposition to refuse to cancel the attachment on November 1, 2012 with respect to each real estate listed in attached Forms 1 and 2 against the plaintiff shall be revoked.

1. Quotation of the reasons for the judgment of the first instance;

The reasons for this judgment shall be with the exception of dismissal or addition of the following:

Therefore, Article 8(2) of the Administrative Litigation Act, the main text of Article 420 of the Civil Procedure Act is the same as the grounds for the judgment of the first instance.

this shall be quoted.

(1) On the 4th and 10th page “shall be seen”, and next, the Plaintiff’s ownership report as above.

Registration of existence is only impossible for registration under a title trust agreement, and that fact is identical to the plaintiff to the defendant.

In addition, the defendant was well aware of this issue."

(2) On the 4th page 10, the term “foreign company” shall be changed to the Plaintiff.

3. On the 5th page 10, “The 5th page must be seen.”

In addition, "the person who did not acquire ownership as a real right to the commercial building of this case" shall be added.

(4) The interval between pages 5, 11 through 6, shall be as follows:

As long as several buyers, as above, did not acquire ownership of the instant commercial building, it is clear that the actual owner and the Plaintiff’s assertion regarding a title trust agreement premised on the registration of ownership preservation by the title holder is without merit.

The Plaintiff’s assertion cannot be accepted in light of the following legal principles, even if the buyer acquired the instant commercial building at the original time and deemed to have completed only the registration of ownership preservation in the future of the Plaintiff pursuant to a title trust agreement.

According to Article 4(1) and the main sentence of Article 4(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, any title trust agreement and any change in real rights to real estate held by the registration following such agreement are null and void, in principle. However, according to Article 4(3) of the same Act, the invalidation

The term "third party" here refers to the name of a person other than the party to the title trust agreement and the general successor.

Attachment on the basis that the trustor is a real right holder and has a new interest directly with him/her;

The provisional attachment creditor also includes his good faith and bad faith (Supreme Court Decision 200 March 28, 200).

(2) The ownership or other rights of the subject matter of the execution already commenced.

Any execution thereof by asserting that there is a right to prevent the transfer or delivery of an object,

In order to seek exclusion, the right which is the cause for such exclusion may be set up against the execution creditor.

must be (see, e.g., Supreme Court Decision 2012Da107068, Mar. 14, 2013).

However, the fact that the registration of preservation of ownership has been completed in the name of the Plaintiff who is the taxpayer, and the fact that the Defendant completed the seizure execution of this case based on the Plaintiff’s ownership was examined earlier. Therefore, it is reasonable to view that the buyer as the buyer cannot oppose the third party on the ground that the title trust agreement and the registration are null and void, and thus, the Defendant cannot seek the exclusion of the execution of seizure. Accordingly, the Plaintiff’s assertion cannot be seen as any mother or acceptable.

2. Conclusion

Therefore, the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

(c)