Republic of Korea (Law Firm Lee & Lee, Attorneys Han-chul et al., Counsel for defendant-appellant

Korean Asset Trust Co., Ltd. (Law Firm Democratic, Attorney Choi Sung-dae, Counsel for the defendant-appellant)

August 16, 2017

Seoul Central District Court Decision 2016Da514471 Decided November 22, 2016

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 177,304,578 won with 15% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Facts of recognition;

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance, except where "the plaintiff" in the second 6th of the judgment of the court of first instance is deemed to be "Seoul High World Co., Ltd." and therefore, it is also accepted in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. The assertion and judgment

A. The plaintiff's assertion

Article 22 (1) 2 of the Trust Contract of this case (hereinafter referred to as "the pertinent tax, etc.") includes the pertinent tax imposed by the truster as a taxpayer in relation to each of the real estate of this case. Thus, ① Since the trust contract of this case is primarily for a third party to have the plaintiff acquire the claim prior to the priority beneficiary, etc., the pertinent tax claim is directly filed against the defendant, and ② Preliminaryly, the truster and the pertinent tax debtor of this case can seek the settlement amount corresponding to the pertinent tax, as provided in the Trust Contract of this case and the provisions of this case, as long as the defendant who is the truster and the pertinent tax debtor of this case did not perform their duty to pay the corresponding tax, and the plaintiff asserts that the above company is seeking the settlement payment of the money claim against the defendant who is the trustee in subrogation of the April, which is in insolvent (the plaintiff in the first instance judgment). The trust contract of this case is the obligation to pay the pertinent tax amount to the defendant of this case, and it is argued to the purport that it is the execution agreement of this case.

B. Determination

1) Article 107(2)5 of the former Local Tax Act (amended by Act No. 12153, Jan. 1, 2014); Article 107(2)5 of the same Act provides that a truster, who is not a trustee, shall be liable for property tax. Article 22(1) of the Trust Act provides that a truster, who is not a trustee, shall be liable for property tax. Article 22(1) of the same Act allows compulsory execution, auction, preservation order, national taxes, etc. for the exercise of a security right, only when the right arising before the trust or the right arising from the performance of a trust is due. However, where a trust relationship is established between the parties by transferring the ownership of real estate to a trustee, the trust property cannot be deemed as the truster’s property after it is entirely transferred to the trustee and externally, and the property tax imposed upon the truster as a taxpayer after the trust cannot be deemed as falling under “right arising from the preceding cause” as provided in Article 22(1) of the Trust Act, and such property tax cannot be included in the trust property under the name 1960.2.25

On the other hand, a taxation claim is a right that is recognized as a priority right and a right to self-performance under the National Tax Collection Act, and of which private autonomy is recognized, and its establishment and exercise can only be determined by Acts and subordinate statutes, and the parties cannot arbitrarily determine the contents thereof in order to protect the people from unfair tax collection and ensure fairness in tax burden. As a legal relation under public law, an administrative litigation is subject to the Administrative Litigation Act in principle, and a tax is distinguishable from a legal claim under private law in that it has the characteristics of public interest and public nature. Therefore, realizing the ultimate satisfaction of a taxation claim by imposing or guaranteeing a tax obligation on a person without a tax liability under a contract that is not a tax law, not a tax law, is contrary to the inherent nature of the taxation mentioned above, and it is not permissible for a taxation authority to arbitrarily expand the scope of establishment and exercise of a taxation claim without statutory provisions for convenience in tax collection (see Supreme Court Decision 2016Da224961, Aug. 29, 2017).

2) In light of the circumstances such as the fact that the trust contract of this case provides that "the pertinent tax, such as the property tax, notified by the time of receipt of the disposal price, shall be settled in preference to the claims of the first beneficiary, and the scope thereof shall not be limited to the corresponding tax imposed or notified to the trustee. When the Plaintiff acquired the tax claim on the pertinent tax of this case, the taxpayer of the property tax and the comprehensive real estate holding tax was the person who actually owns the property as of the tax base date for the property tax, and regardless of the trust contract of this case, the taxpayer was the person liable for the tax of this case. The pertinent tax stipulated in the provisions of this case shall be deemed to include the pertinent tax that the truster bears the responsibility for payment in relation to the pertinent real estate of this case.

First, even if the meaning of the provision of this case concerning the primary cause of the plaintiff's primary cause of claim is interpreted as above, ① The plaintiff's primary cause of claim extends the scope of tax liability to the defendant, not the original debtor of the tax claim of this case, based on the trust contract of this case, which is not a provision of law, but a private contract of this case, so it cannot be accepted in light of the above legal principles and the principle of no taxation without representation. ② In light of the contents and the developments leading up to the conclusion of the trust contract of this case, Article 22 of the trust contract of this case is merely a provision on the order of distribution in case of disposing of real estate subject to trust, and it is difficult to regard the above provision as a contract for a third party to directly acquire rights against the defendant.

The plaintiff's preliminary cause of claim also means that the plaintiff, who is a tax claim holder, directly exercises the right of subrogation of the creditor under the Civil Act against the defendant, based on the terms of the trust contract in this case concluded between the plaintiff and the plaintiff, a private person, and the defendant. Thus, the plaintiff's assertion on this part is not reasonable in light of the principle of no taxation without law, since it is also a result of realizing the final satisfaction of the tax claim from a person who is not liable to pay taxes under a private contract

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just and the plaintiff's appeal shall be dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Li-ri (Presiding Judge) For the purpose of Ha-ri and Ha-ri