In a case where Gap corporation completed the registration of ownership transfer of real estate based on trust to Eul corporation, but Byung local government attached the above real estate to collect property tax on Gap corporation's above real estate, and later Eul corporation remitted the amount in arrears of Gap corporation's property tax to Gap corporation's virtual account under the name of Eul corporation established by Byung local government, and completed the registration of ownership transfer based on Eul's sale and purchase of the above real estate, the case holding that Byung corporation could not seek damages for unjust enrichment return or tort against Byung local government

In a case where Gap corporation completed the registration of ownership transfer of real estate based on trust to Eul corporation, but Byung local government imposed a seizure disposition on the above real estate in order to collect property tax (hereinafter “relevant tax”), which is subject to Gap corporation’s taxation, and Eul corporation paid the amount of delinquent taxes to Eul company’s virtual account established by Byung local government Byung, and completed the registration of ownership transfer based on sale and purchase of the above real estate from Eul corporation, the case held that the legal ground for the payment of delinquent taxes can not be deemed a seizure disposition, which is a kind of disposition of delinquent taxes, on the ground that the legal ground for the payment of delinquent taxes is the relevant tax established and determined by taxation, and it cannot be deemed as a seizure disposition, which is a kind of disposition of delinquent taxes, under Article 70(1) and (2) of the Framework Act on Local Taxes, and it cannot be deemed that the third party, who is not the taxpayer under the name of Eul corporation pursuant to Article 70(3) of the Framework Act on Local Taxes, was not entitled to claim the return of delinquent taxes, on the other hand, it cannot be deemed as losses caused by public officials Byung.

Article 21(1) of the former Trust Act (wholly amended by Act No. 10924, Jul. 25, 201) (see current Article 22(1)); Article 70 of the Framework Act on Local Taxes; Articles 741 and 750 of the Civil Act; Article 2(1) of the State Compensation Act

Gael milk1 Co., Ltd. (Law Firm Rolus, Attorneys Kim Jong-tae, Counsel for the plaintiff-appellant)

Kim Jae-si (Attorney Kim Jae-sik, Counsel for defendant-appellant)

June 24, 2014

1. All of the plaintiff's claims are dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant shall pay to the plaintiff 606,325,230 won with 5% interest per annum from April 27, 2012 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment (the plaintiff claimed damages for tort and return of unjust enrichment).

1. Basic facts

On July 23, 2007, Solodi Co., Ltd. (hereinafter “ Solodididi”) completed the registration of ownership transfer based on the trust on the same day on the house guarantee company (hereinafter “Korea Housing Guarantee”) with respect to the ( Address omitted) and 26 parcels (hereinafter “each real estate of this case”) owned by it.

○ On July 7, 2011, the Defendant issued a seizure disposition on the grounds of the proviso to Article 21(1) of the Trust Act, etc. (hereinafter “instant seizure disposition”) to collect property tax (hereinafter “instant tax”) subject to Solodididi’s taxation on each of the instant real estate, and the subsequent attachment registration (hereinafter “instant attachment registration”) was completed on July 13, 201.

○ On April 27, 2012, the Plaintiff transferred 606,325,230 won in arrears with respect to the pertinent tax (hereinafter “instant arrears”) to the virtual account in the name of Solodidididi’s opened by the Defendant. The instant attachment registration was cancelled due to the cancellation of the instant attachment disposition on the same day. The Plaintiff completed each registration of transfer of ownership for each of the instant real estate from the Housing Guarantee on the same day on December 28, 2012.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2 (including additional number), Eul evidence 2, the purport of the whole pleadings

2. The plaintiff's assertion

A. The attachment disposition of this case regarding each real estate of this case, which is a trust property, is null and void for the purpose of collecting property tax on Sochina, the truster. The Plaintiff paid the amount in arrears of this case without any legal ground to cancel the attachment registration of this case based on the null and void attachment disposition. As such, the Defendant is obligated to return the amount in arrears of this case to the Plaintiff with unjust enrichment.

B. In spite of the fact that a public official belonging to the defendant could not take the attachment disposition on the trusted real estate with a claim against the truster, he/she was subject to the attachment disposition of this case for the collection of the property tax on Sokmandi, the truster, and was paid the amount in arrears from the plaintiff. This is an illegal disposition by intention or negligence of the public official belonging to the defendant, and the defendant is obligated to pay the plaintiff the amount equivalent to the amount in arrears of this case for compensation for

3. Determination on the assertion of unjust enrichment return

A. Whether there exists a legal ground for the payment of delinquent amount in this case

The Plaintiff’s assertion on this part is premised on the legal ground of the payment of delinquent amount in this case’s attachment disposition.

However, the attachment disposition by the tax authority is a kind of disposition on default, and the disposition on default refers to a compulsory collection procedure conducted by the tax authority if the taxpayer fails to perform at will the determined tax obligation. The legal ground for the tax payer to possess the tax by receiving the tax from the tax obligor is not a disposition on attachment, which is a kind of disposition on default. Therefore, the legal ground for the Plaintiff’s payment of the tax amount in arrears is only the tax amount in this case, and does not constitute the attachment disposition in this case. The legal ground for the Plaintiff’s payment of the tax amount in this case cannot be deemed as the tax amount in this case, and the legal ground for directly extinguished due to the payment of the tax amount in this case is the tax amount in this case. The cancellation of the attachment disposition in this case and the cancellation of the attachment registration in this case is due to the Defendant’s cancellation disposition due to the extinguishment of the tax amount in this case. The attachment disposition in this case is nothing more than the motive or circumstance of the Plaintiff’

In this case, the defendant's collection of the pertinent tax is due to the plaintiff's payment of delinquent amount in this case, and it is not based on the execution procedure based on the seizure disposition of this case, and it is different from the case where unjust enrichment can be established with respect to the money collected through the execution procedure based on invalid

Therefore, we cannot accept the Plaintiff’s assertion of unjust enrichment return premised on the legal ground for the payment of arrears in this case’s attachment disposition without any need to examine the remainder of the issues.

In addition, in order to cancel the registration of the seizure of this case, the plaintiff paid the delinquent amount of this case inevitably to the plaintiff, but the defendant did not have the obligation to return unjust enrichment to the plaintiff. However, if such circumstance exists, the issue of return of unjust enrichment does not change depending on the loss or invalidity of the seizure disposition of this case. Whether it is inevitable or not should be determined by the existence of the seizure disposition of this case regardless of the loss or invalidity thereof. Further, the above opinion assumes that the payment of delinquent amount by the plaintiff was the plaintiff's obligation to pay or tax obligation to the defendant. However, according to the above basic facts, the plaintiff transferred the delinquent amount of the pertinent tax to the virtual account under the name of Socendi established by the defendant. The plaintiff paid the pertinent tax of this case to the defendant of Socendi, not as the obligation to pay or pay taxes to the defendant of this case. Therefore, the opinion that the payment of delinquent amount in this case was a performance of the plaintiff's obligation to pay taxes or tax obligation to the defendant of Socendi is unreasonable.

(b) Claim for the return of local tax payment by a third party;

Furthermore, even if there is no legal ground for the payment of delinquent amount in this case, the Plaintiff is not the nominal owner of the payment of delinquent amount, and thus, cannot make a claim for refund.

The Plaintiff’s payment of arrears in this case is based on Article 70(1) and (2) of the Framework Act on Local Taxes, and cannot claim the return thereof pursuant to Article 70(3) of the same Act. Article 469(2) of the same Act provides that the payment of arrears in this case may be made only in the name of the taxpayer, as otherwise provided in Article 469(2) of the Civil Act. Accordingly, according to the development of the general legal doctrine, Article 70(3) of the same Act confirms that a third party, who is not the payer, cannot claim the return thereof.

In contrast, Article 70(2) and (3) of the Framework Act on Local Taxes only apply to cases where a third party pays it in the name of a taxpayer, and the third party is entitled to pay it for a taxpayer under his/her name, not a taxpayer, and in such a case, there seems to be a view that a third party may demand the return of it in his/her name. However, in order to merge such opinion, the phrase “in accordance with Article 70(3) of the same Act” should be the phrase “in accordance with Article 70(2) and (3) of the same Act, and such opinion does not have the meaning of the phrase “limited” under Article 70(2) of the same Act.

In this case, the Plaintiff paid the pertinent tax in the name of Socendi by remitting it to virtual accounts established in the name of Socendi pursuant to Article 70(1) and (2) of the Framework Act on Local Taxes, and accordingly, cannot claim a return of the amount in arrears of this case pursuant to Article 70(3) of the Framework Act on Local Taxes based on the general legal principles.

In the end, the plaintiff's assertion on return of unjust enrichment cannot be accepted in this regard (the issue of termination of the obligation to pay the pertinent tax in this case by the plaintiff's contribution can only be discussed as a matter of recourse between the plaintiff and Solardi).

4. Determination as to the assertion of damages

A. Whether a proximate causal relationship exists

The Plaintiff’s assertion is premised on the premise that the arrears amount of the Plaintiff’s assertion is in proximate causal relation with the attachment disposition of this case.

However, at the time of the execution of the seizure disposition of this case, the owner of each of the instant real estate is the owner of the instant real estate at the time of the execution of the seizure disposition, and the Plaintiff is merely the purchaser of each of the instant real estate in the form of the seizure disposition. In such a case, damages for the restriction on the exercise of ownership due to the seizure disposition of this case shall be deemed to have been completed as damages arising from the sale and purchase of each of the instant real estate, and since the Plaintiff acquired ownership of each of the instant real estate under the condition that the exercise of ownership was restricted from the time of purchase, the attachment disposition of this case and the restriction on the exercise of ownership of the Plaintiff’s real estate should be deemed to have been reduced in proximate causal relation. In reality, in such a case, the sale price shall be determined by reflecting the limited state of the exercise of ownership, and thus, it shall not be deemed to have caused unexpected damages to the purchaser. In addition, the Plaintiff may not be deemed to have suffered any new damages, since the payment of delinquent

The plaintiff could not obtain approval for change of the housing construction project plan, which was originally approved by Sochina as the business entity due to the attachment disposition of this case, because it could not obtain approval for change of its main entity to the plaintiff, and the defendant is obligated to compensate for damages caused by the illegal attachment disposition of this case. However, in light of the circumstances that the approval for change of the housing construction project plan of the plaintiff's assertion is not due to the attachment disposition of this case, but due to the delinquency in payment of the corresponding tax of this case, the plaintiff's above assertion cannot be accepted.

Therefore, we cannot accept the Plaintiff’s claim on the premise that the arrears amount in this case is a loss with proximate causal relation with the attachment disposition in this case without any need to examine the remainder of the issues.

B. Whether the defendant's intention or negligence exists

In addition, this case's seizure disposition is examined as to whether it is caused by the intention or negligence of the public officials belonging to the defendant.

Even if an administrative agency’s performance of duties by taking a certain opinion before the establishment of the interpretation of the relevant Acts and subordinate statutes was caused by an illegal act, and thus, it was difficult to expect to an average public official with good faith to faithfully implement the same treatment method at the time of the disposition, barring special circumstances, it cannot be deemed that such act was caused by a public official’s negligence (see Supreme Court Decision 2002Da31018, Jun. 11, 2004, etc.).

In light of the following circumstances acknowledged in the statement No. 3, the Plaintiff’s claim for damages cannot be accepted even in this respect, on the ground that the attachment disposition of this case constitutes invalid merely because it constitutes an intentional or negligent act on the part of the public official belonging to the Defendant, and there is no other evidence to acknowledge it.

○ On May 30, 201, prior to the instant attachment disposition, on May 30, 201, the Defendant received a public notice from Gyeonggi-do, which is a superior local government, to the effect that “the pertinent tax was generated in the course of performing trust affairs under the proviso of Article 21(1) of the Trust Act, and thus, the registration of seizure on the subject real estate is lawful.” Accordingly, the instant attachment disposition was rendered.

On July 13, 201, the date of the registration of the seizure of this case, the lower court's rulings have different views as to whether the pertinent claim against the truster was included in the “right arising from the process of trust affairs” which could be seized as to trust property.

Supreme Court Decision 2010Da67593 Decided July 12, 2012, Supreme Court Decision 2010Da67593 Decided July 12, 2012, to the effect that “the relevant claim against a truster does not constitute a right arising from the performance of trust affairs under the proviso of Article 21(1) of the Trust Act,” the Plaintiff was sentenced on July 13, 201 as well as on July 27, 2012, which was the date of the registration of the seizure of this case.

5. Conclusion

The plaintiff's claim for return of unjust enrichment and tort damages is dismissed as all are without merit.

Judges Lee Jong-dong (Presiding Judge)

(2) Payment made by a third party under paragraph (1) shall be limited to a payment made in the name of a taxpayer. (3) A third party who has paid money collectible by a local government on behalf of a taxpayer pursuant to paragraph (1) may not request the return of such money collectible by a local government to the local government.

2) The performance of an obligation may be made by a third party under Article 469 (1) of the Civil Act: Provided, That this shall not apply to cases where the nature of an obligation or the declaration of intention of a party concerned does not allow the performance by a third party.