(영문) 서울행정법원 2015. 5. 22. 선고 2014구합70327 제6민사부 판결

The Defendant revoked the disposition of imposition of KRW 1,921,370, urban area portion KRW 989,970, local education tax, and KRW 384,270, which was imposed on the Plaintiff Han Bank Co., Ltd. on September 10, 2014.

Reasons

1. Details of the disposition;

A. On or before January 1, 2014, before the enforcement date of the Local Tax Act (amended by Act No. 12153, Jan. 1, 2014; hereinafter referred to as the "former Local Tax Act"), the Plaintiff Han Bank (hereinafter referred to as the "Plaintiff Han Bank") concluded a real estate trust agreement under the Trust Act (hereinafter referred to as the "trust agreement in this case"; hereinafter referred to as the "trust property in this case") with the Central Government of Jongno-gu, Jongno-gu, Seoul with respect to the size of 340 large scale 234 square meters in real estate (hereinafter referred to as "the trust agreement in this case"), and completed the trust registration of the trust property in this case.

B. The Plaintiff U2S LLC (hereinafter “Plaintiff Special Purpose Company”) is the first beneficiary under the instant trust agreement (the beneficiary under the instant trust agreement within the scope of the remaining amount obtained by subtracting the disposal cost and trust remuneration, etc. from the disposal cost of trust affairs, trust remuneration, and the claims of the senior right holder) from the company established for the purpose of acquisition, transfer, etc. of claims, security rights, and other property rights (backed by the Plaintiff Special Purpose Company) pursuant to the Act on Real Estate Securitization.

C. In accordance with Article 107(1)3 of the Amendment Act, the main sentence of Article 1 and Article 17(1) of the Addenda (hereinafter collectively referred to as the “Supplementary Rule”), the Defendant imposed property tax on the Plaintiff Han Bank, the trustee of the instant trust assets, KRW 1,921,370 on September 10, 2014, imposed property tax on the Plaintiff Han Bank, the trustee of the instant trust assets, KRW 989,970 on urban areas, KRW 384,270 on local education tax (hereinafter referred to as the “instant disposition”).

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. The plaintiffs' assertion

Since the provisions of the Local Tax Act stipulating a person liable to pay property tax on trust property as a truster was newly established on December 27, 1993, there was no change from the person liable to pay property tax on trust property to the truster to the truster for about 20 years. The instant disposition imposed on the person liable to pay property tax on trust property under Article 107 (1) 3 of the amended Act and the supplementary provisions of the instant case violates the principle of prohibition of retroactive legislation or the principle of protection of trust.

3. Relevant statutes;

The entries in the attached Table-related statutes are as follows.

4. Whether litigation by the plaintiff special purpose company is legitimate

On the other hand, even a third party, who is not the direct counter party to an administrative disposition, has a legal interest in seeking a lawsuit against the administrative disposition, standing to sue should be recognized. However, the legal interest here refers to a case where there is a direct and specific interest protected by the law based on the relevant disposition, and it does not include cases where it is excessive to have indirect, factual, and economic interest (referring to Supreme Court Decision 2002Du1267 Decided September 23, 2003).

However, as seen earlier, the Plaintiff special purpose company is merely a third party who is not the direct other party to the instant disposition, and even if the Plaintiff special purpose company has seen priority to the trust property of this case, and as a result, the Plaintiff special purpose company suffers disadvantages as to the amount equivalent to the property tax of this case, it constitutes an economic and factual interest, and it does not constitute an infringement of the legal interest directly protected by the Local Tax Act. If the Plaintiff special purpose company expands standing to sue to the same case as the Plaintiff special purpose company, the Plaintiff special purpose company has preferential right to reimbursement against the other party to the tax disposition or against the object of taxation.

Along with having taken measures such as claiming priority in relation to the realization procedure of trust assets, the Plaintiff-backed securitization company cannot be deemed to have a legal status to seek direct revocation of the instant disposition itself against the Plaintiff Han Bank. Ultimately, the Plaintiff-backed securitization company cannot be deemed to have standing to sue as provided by Article 12 of the Administrative Litigation Act, and thus, the lawsuit against the Plaintiff-backed securitization company is unlawful.

5. Determination on the claim of the Plaintiff Han Bank

(a) Details of amendments to the Local Tax Act;

The main text of Article 107 (1) of the former Act stipulates that "any person who actually owns property as of the property tax base date shall be liable to pay property tax," and Article 107 (2) 5 of the same Act stipulates that "in the case of trust property which is not in compliance with paragraph (1) and registered under the name of the trustee in accordance with the Trust Act, the truster shall be liable to pay property tax," and in the case of trust property, the truster is not the trustee but the truster.

However, the amended Act deleted Article 107 (2) 5, while Article 107 (1) (main sentence) provides that a person who actually owns property as of the property tax base date shall be liable to pay the property tax, and Article 107 (3) (proviso) of the same Act provides, however, that in the case of trust property registered and registered in the name of the trustee under the Trust Act, the trustee shall be deemed the person liable to pay the property tax for each truster.

On the other hand, the supplementary provision of this case provides that the above amendment provision shall enter into force on January 1, 2014, and shall be in force on the other hand.

The trust contract entered into before the enforcement date of the amended Act as shown in the trust contract also stipulates that a trustee who is not a truster shall bear property tax liability.

B. Whether the property right is infringed by the law of the court below's appeal

Article 13(2) of the Constitution prohibits the deprivation of property rights by retroactive legislation based on historical experience.The Constitutional Court also held that it violates the above Article 13(2) of the Constitution to impose tax retroactively or retroactively even if there is a tax liability or tax liability in the past due to new legislation.

Here, the type of retroactive legislation is divided into a petition-based legislation and a non-petition-based legislation depending on whether the new law is already terminated or is operating on the facts currently in progress. The former is in principle not permitted constitutionally, and the former can be exceptionally allowed only when there are special circumstances. On the other hand, in principle, even if allowed, the point of view of trust protection in the bridge process between the reasons for the public interest requiring retroactive effect and the request for protection of trust is limited to the legislative formation right (see Constitutional Court Order 9Hun-Ba55, Apr. 26, 2001, etc.).

On or before January 1, 2014, the supplementary provision of this case does not intend to change a taxpayer for property tax from a truster to a trustee by applying the revised provision on or before the enforcement date of the amended Act, but only intends to change the taxpayer from the property tax (the property tax base date is June 1 of each year, since the property tax base date is the property tax on June 1, 2014) to a trustee after the enforcement date of the amended Act, and it cannot be deemed as a genuine-level legislation that acts on the completed facts. For this, the Plaintiff Han Bank concluded the trust contract of this case on or before January 1, 2014, and thus, the supplementary provision of this case asserts that the reason for imposition of property tax is a true-level legislation, but the fact that the property tax is imposed is not a trust contract, but a property at the tax base date.

The act is an act of care, and this is a fact or legal relation that has not arrived at all on January 1, 2014, which is the enforcement date of the amended Act. Of course, there may be a problem of protecting the trust of a plaintiff bank, which trusted the existence of a legal status as at the time of concluding a trust contract, but this cannot be immediately considered as an issue of deprivation of property by retroactive legislation. Therefore, the supplementary provision of this case cannot be deemed as a violation of Article 13(2) of the Constitution, which declares the principle of prohibition of deprivation of property rights by retroactive legislation, and the argument of the plaintiff bank is without merit.

C. Whether it violates the principle of protection of trust

The principle of protecting trust is derived from the principle of the rule of law under the Constitution (see, e.g., Supreme Court Order 94Hun-Ba12, Oct. 26, 1995; 94Hun-Ba12, Oct. 26, 1995). If the public interest purpose to achieve a new legislation is not to justify the destruction of trust of a party, because the party’s trust in the order of the former law is reasonable, reasonable and justifiable, and the damage to the party caused by the enactment or amendment of the law is so serious that the party’s trust cannot be justified, such new legislation may not be allowed under the principle of protecting trust. In order to determine whether such a violation of the principle of protecting trust is against the protection of trust, on the other hand, the purpose of public interest realized through the new legislation should be comprehensively compared and balanced (see, e.g., Supreme Court Order 9Hun-Ba555, Oct.

On the other hand, it is intended to improve and supplement the problems in which it is impossible to implement the disposition on default, such as the seizure of trust property, due to the change of the person liable to pay property tax from the person liable to pay property tax on trust property to the trustee from the person liable to pay property tax on trust property. This is the basic purpose of the Local Tax Act to provide for matters concerning the imposition and collection of taxes, which are the basis for local financial revenue, and to promote the balance of financial resources of local governments.

The necessity and purpose of the public interest shall be fully recognized.

On the other hand, the trust benefits infringed upon by the amended Act came to be a new liability to pay property tax unexpected at the time of entering into the instant trust contract, and accordingly, it became possible to collect delinquent taxes on the instant trust property. As a result, it may be deemed that the amount of property tax calculated under Articles 110 and 111 of the amended Act does not exceed 2% of the current base value, while the amount of property tax calculated under Articles 110 and 111 of the amended Act does not exceed the amount that is less than 2% of the current base value, and the trustee may recover the paid property in preference to the proceeds from the sale of the trust property in the name of the trust affairs

If so, the degree of damage to the trust interest formed before the enforcement of the amended Act and the above public interest to be realized by the amended Act cannot be greater than the former.In the event that the amended Act is unavoidable to conflict of interest to a certain extent, it is reasonable to view that the damage to trust property caused by changing the taxpayer of property tax from the truster to the trustee is justifiable under the Constitution. Accordingly, the plaintiff bank's assertion against this is without merit.

6. Conclusion

Therefore, the plaintiff special purpose company's lawsuit is unlawful and dismissed, and the plaintiff bank's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

Judges Kim Jong-young

Judges Roster

Judges Kim Jae- Jae

Site of separate sheet

Relevant statutes

/Local Tax Act (amended by Act No. 12153, Jan. 1, 2014)

Article 107 (Persons Liable to Pay Tax)

(1) A person who actually owns property as of the tax base date shall be liable to pay property tax: Provided, That in any of the following cases, the following persons shall be deemed a person liable to pay property tax:

3. In cases of trust property registered and recorded in the name of the trustee under the Trust Act: The trustee in cases of bankruptcy classified for each truster. In such cases, a taxpayer in cases of property classified for each truster shall be deemed a different taxpayer.

Article 110 (Tax Base)

(1) The tax base for property tax on land, buildings and housing shall be the value calculated by multiplying the current base value under Article 4 (1) and (2) by the fair market value ratio prescribed by Presidential Decree within the scope determined by any of the following, in consideration of the trend of the real estate market, local financial conditions, etc.:

1. Land and buildings: From 50/100 to 90/100 of the statutory standard price;

2. Housing: From 40/100 to 80/100 of the statutory standard price.

Article 111 (Tax Rates)

(1) The amount of property tax shall be the amount calculated by applying the following standard tax rates to the tax base under Article 110:

1. Land:

(a) Objects of general aggregate taxation;

(b) Omission of special aggregate taxation;

(i)former, paddy field, orchard and woodland: 0.7/1000 of the tax base;

(b) Land for golf courses and high-class recreation centers: 40/1000 of the tax base;

A Addenda Act No. 12153, Jan. 1, 2014

Article 1 (Enforcement Date)

This Act shall enter into force on January 1, 2014.

Article 17 (Transitional Measures concerning Change in Taxpayer of Property Tax on Trust Property)

(1) Where a property tax liability becomes effective before this Act enters into force, notwithstanding the amended provisions of Article 107 (2) 5, the previous provisions shall apply.

/ former Local Tax Act (amended by Act No. 12153, Jan. 1, 2014)

Article 107 (Persons Liable to Pay Tax)

(1) A person who actually owns property as at the tax base date of property tax shall be liable to pay property tax: Provided, That in cases of public property, the share holder shall be deemed the person liable to pay the share (where the share is not indicated, it shall be deemed equal to the share), and in cases of the owner of a building and appurtenant land of a house, the owner shall be deemed the person liable to pay property tax on the portion calculated in proportion to the standard market price of the building and appurtenant land under Article 4 (

(2) Notwithstanding paragraph (1), any of the following persons as of the tax base date for property tax shall be liable to pay property tax:

5. In cases of trust property registered in the name of trustee under the Trust Act, the truster (Provided, That in cases of trust property purchased in money by a regional housing association or workplace housing association under subparagraph 11 of Article 2 of the Housing Act, but in cases of a trust property purchased in money by a member of a regional housing association or workplace housing association, the relevant regional housing association or workplace housing association). In such cases, the trustee (in cases of a regional housing association or workplace housing association, the member of the association)

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