2011Na68633 Demurrer against distribution

Mayang-si

Representative Market ○○○

Law Firm ○○○○

○○, ○○, ○○

1. Hafran Co., Ltd.;

Yeongdeungpo-gu Seoul Metropolitan Government 6 36 LG Electronic Gangseo Building 4 floors

○○○○

Attorney ○-○, et al.

2. A limited liability company specializing in securitization of skins;

Yeongdeungpo-gu Seoul Metropolitan Government Sodo-dong 17-26

Representative Director ○○○

3. El Electronic Co., Ltd.

Seoul Yeongdeungpo-do 20 Turaey, Yeongdeungpo-gu 20

○○○○

Attorney ○-○, et al.

Suwon District Court Decision 2011Kahap125 decided July 20, 2011

February 28, 2012

March 15, 2012

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

Hayang District Court 2009 Other 4509, 2009 Other 4516, 2009 Other 16632, 2009

A distribution schedule prepared by the above court on January 28, 2011 with respect to the voluntary auction case of real estate No. 24763

Of the amount of dividends against the plaintiff 122,280,204 won and Hadra Co., Ltd.

Amount of dividends 2, 200, 000, 000 won 2,185, 844, 211 won, and Defendant Epia-backed limited company

The amount of dividends paid to the defendant El Electronic Co., Ltd. 2, 384, 355, 421 won 2,348, 367, 697 won, and defendant El Electronic Co., Ltd.

Amount of dividends of KRW 1,086,00,000 shall be corrected in each amount of KRW 1,079,012, and 188.

2. Purport of appeal

The part of the judgment of the court of first instance against the Defendants is revoked. All of the Plaintiff’s claims against the Defendants are satisfied.

The dismissal is dismissed.

1. Facts of recognition;

A. A. The Do governor-general corporation (former Do governor-gu corporation: ○○, hereinafter referred to as Do governor-gu) shall be Do governor-general on December 2006.

22. The registration of ownership transfer was completed on December 21, 2006 with respect to each real estate listed in the separate sheet to Korea Asset Trust Co., Ltd. (hereinafter referred to as the “instant real estate”).

B. On February 19, 2004, Han Bank was created with the instant real estate as joint collateral with the obligor, ○○○○○, the maximum debt amount of KRW 2.6 billion. On February 18, 2009, Han Bank transferred to the Credit Guarantee Fund the right to collateral reimbursement amounting to KRW 2.34 billion on the ground of partial subrogation of the confirmed claim. On February 18, 2009, Han Bank completed additional registration. Other real estate of this case was set up by Homato Savings Bank and the Defendants’ right to collateral payment.

C. Upon the application of the Credit Guarantee Fund, the Plaintiff filed a claim for the delivery of the pertinent property tax on the sum of 122,250,200,200,200,200 won (hereinafter “property tax of this case”) under the following, which was imposed on the Dolur Dolur on August 6, 2009, prior to the dividend period, in the voluntary auction procedure regarding the instant real estate, where the decision to commence auction was made by the High Government District Court was around June 3, 2009 and around 16632.

D. Upon the sale of the instant real estate and the payment of the price was made, the execution court drafted a distribution schedule with the content that the amount of the instant real estate distributed KRW 8,533,642,96, which is the actual amount to be distributed after deducting KRW 53,370,71 from the sales price of 8,571,879,000 and interest of KRW 15,134,70 and its interest of KRW 706, and the execution cost of KRW 53,370,71.

E. The Plaintiff appeared on the date of distribution on the date of distribution as to KRW 60,298,242 out of the dividends to Thematoto2 Savings Bank Co., Ltd. among the dividends to the mortgagee, Defendant EFD Co., Ltd. (hereinafter “Defendant EFD”), KRW 14,155,789 from among the dividends to the Defendant EFD Co., Ltd. (hereinafter “Defendant EFD”), KRW 35,987,724 from among the dividends to the Defendant EFD Co., Ltd. (hereinafter “Defendant EFD”) and Defendant EFD Co., Ltd. (hereinafter “Defendant EFD”), the Plaintiff stated that the Plaintiff raised an objection against KRW 6,987,87,81 from among the dividends to the KFDD Co., Ltd., Ltd., and KRW 39,291 from among the dividends to the KFDD Co., Ltd., Ltd., and KRW 811,346 from the dividends to one Bank.

[Ground for Recognition] Unsatisfy, Gap evidence 1 to 4

2. The parties' assertion

A. The plaintiff;

Article 21(1) of the Trust Act does not directly exclude the principle of preferential dividend for the pertinent tax under Article 31 of the former Local Tax Act (amended by Act No. 10221, Mar. 31, 2010; hereinafter referred to as the "former Local Tax Act"). Since the delinquent local tax is a right arising from the performance of trust affairs, the executing court should preferentially distribute the proceeds from the sale of the instant real estate to the Plaintiff.

B. After the Defendants transferred the ownership of the instant real estate to the Korea Assets Trust Co., Ltd., the truster, who is the taxpayer, it cannot file a claim for seizure and delivery with respect to the trust property not owned by ○○○○○○○○○○, due to the disposition on default of the instant property tax, which was imposed on the truster, and the right to the trust property under the proviso of Article 21(1) of the Trust Act refers to the right to the trustee as a claim arising from the trustee’s ordinary business conduct, such as the management or disposal of trust property, and thus, the instant

3. Determination

(1) A person liable to pay the property tax on the property of land, buildings, etc. is a person who actually owns the property as of the tax base date (Article 183(1) of the former Local Tax Act), but in the case of trust property registered under the name of a trustee under the Trust Act, the truster is liable to pay the property tax, and the trustee is deemed a tax manager under Article 37 of the same Act (Article 183(2)5 of the former Local Tax Act).

(2) Meanwhile, local taxes and additional dues imposed on the property itself are superior to those secured by mortgage, etc. established before statutory due date (Article 31(2)3 of the former Local Tax Act), but compulsory execution or auction is exceptionally permitted in cases of rights arising from the performance of trust affairs (Article 21(1)3 of the Trust Act), and so-called “right arising from the performance of trust affairs” includes rights arising from the management and disposition of trust property, and the so-called “property tax claim,” which is local taxes and additional dues imposed on the trust property itself, are equal to the pertinent tax. If property is imposed on the property of the person liable for tax payment and trust relationship is established under the Trust Act, it cannot be deemed that the property is reverted to the trustee even after the lapse of the period, and if the ownership of the property is considerably different from that of the trust property, it is deemed that there is no provision on the trust property under the former Local Tax Act, which can be deemed that the trust property will be reverted to the truster’s own interest in the first place. However, if the ownership of the trust property is changed to the trust property.

10. (See Supreme Court Decision 2001Da44376 delivered on October 10, 201). (6) If a local tax is imposed on the trust property itself by designating the truster as a person liable for duty payment after the registration of trust, it is reasonable to view that a tax claim constitutes a right arising from the performance of trust affairs, and thus a disposition on default on the trust property is allowed pursuant to the proviso of Article 21(1) of

(7) Examining the above facts in light of the relevant provisions and legal principles as seen earlier, the Plaintiff may file a claim for the seizure or delivery of the instant real estate itself, which is a trust property, for the collection of the instant property tax. Thus, the executing court shall distribute the instant property tax on the instant real estate from the proceeds of sale of the instant real estate in preference to the Defendants’ claim against the amount of dividends of KRW 122,280,204, the amount of dividends of KRW 200,200,000 to Defendant HD, and the amount of dividends of KRW 2,185,84,84,35,421 to the Defendant special purpose company, and the amount of dividends of KRW 2,348,367,697, and KRW 1,086,00,000 to Defendant LD Electronic Bank, and KRW 1,281,000 to the Plaintiff’s joint savings, the amount of dividends of KRW 2,184,211 to the Defendant special purpose company should be increased.

4. Conclusion

Therefore, the plaintiff's claim of this case against the defendants is justified, and the judgment of the court of first instance is just in conclusion, and the defendants' appeal against this is dismissed in its entirety without merit. It is so decided as per Disposition.

Justices Shin Young-chul and decorations

Judges Cho Chang-chul

Judges Coordination:

A person shall be appointed.