Korea Deposit Insurance Corporation and 11 others (Law Firm Gappp, Attorneys Lee Dong-won et al., Counsel for the plaintiff-appellant)

Suwon-si (Law Firm Tae Young, Attorneys Lee Jae-eng et al., Counsel for the defendant-appellant)

September 18, 2015

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The plaintiffs and the defendant confirm that the Asian Trust Co., Ltd. deposited 452,74,160 won by the Seoul Central District Court Decision 2014No. 13823 and the right to claim the payment of deposit money on interest accrued therefrom is against the plaintiffs.

1. Basic facts

A. On September 30, 2009, the Maulen Co., Ltd. (hereinafter “Maulen”) entered into a real estate security trust agreement (hereinafter “instant trust agreement”) with the Asian Trust Co., Ltd. (hereinafter “ASEAN”) to secure the obligation of loans to the Gyeonggi Savings Bank Co., Ltd., Ltd., and with the beneficiary of the trust original trust (hereinafter “priority beneficiary”) and with the beneficiary of the subordinated beneficiary and trust proceeds of the trust principal, the Maulen Co., Ltd., Ltd., as the beneficiary of the trust principal and the beneficiary of the trust principal, and the Maulen Co., Ltd, as the beneficiary of the trust principal and the beneficiary of the trust proceeds, concluded a real estate security trust agreement (hereinafter “instant trust agreement”). On October 1, 2009, the registration of the ownership transfer arising from the instant trust agreement with respect to each of the instant real estate was completed.

B. The first beneficiary requested the Asian Trust to dispose of each of the instant real estate as stipulated in the instant trust agreement, and the Asian Trust completed the realization procedure by proceeding with the public sale disposal procedure under the instant contract.

C. The instant trust contract provides for the method of settlement of the disposal price, etc. as follows.

Article 15 (Bearing of Expenses)

(1) Taxes and public charges on real estate and trust profits, expenses incurred in the performance of the trust affairs, such as expenses for maintenance, management, financing, etc., and damages incurred by any cause not attributable to the trustee in the performance of the trust affairs shall be borne by the truster

(2) Where money belonging to trust property falls short of the payment of the expenses, etc. under paragraph (1) and it is impossible for the truster to receive the shortage, the trustee may, by selling all or part of the real estate in trust by a method deemed reasonable by the trustee

(3) Where a truster fails to pay expenses, etc. under paragraph (1) by the due date, a trustee may pay them on behalf of him/her, and in such cases, the truster shall pay damages for delay from the due date to the due date to the due date to the due date to the due date,

(4) A trustee may deduct and collect the substitute payments and damages for delay referred to in paragraph (3) from the money or property to be paid to the truster or the preferential beneficiary in preference thereto.

(1) The order of appropriation when a trustee liquidates trust real estate by realizing it shall be as follows:

1. Expenses incurred in the procedures for real estate management and public auction, and remuneration to be received by the trustee (trust remuneration and substitute remuneration);

2. Property tax, etc. notified until the price for disposal of the property is received.

3. Deposit for lease which takes precedence over the mortgagee's right to collateral security under subparagraph 4.

4. Claims of the mortgagee of the right to collateral security before the creation of trust (within the maximum amount of claims);

5. Lease deposit of the lessee with any legal opposing power;

6. Claims of preferential beneficiaries;

7. To pay in sequence the remainder, if any, to the beneficiary;

○ [Matters under special agreement] Article 7 (Tax Affairs, Accounting, etc.)

(1) Taxes and accounting related to trust property shall be reported and paid by the truster at the expense of the truster.

D. From 2010 to 2013, the Defendant imposed property tax, etc. on each of the instant real estate on Yellow Sea. In accordance with Article 22(1) of the instant trust agreement, the Defendant demanded the Defendant to pay KRW 452,744,160, including property tax, to the Defendant, who is the first beneficiary or the bankruptcy trustee of the first beneficiary, among the proceeds from the disposal of each of the instant real estate in the Asia trust around the first half of the year 2014, the Defendant paid KRW 452,74,160, such as property tax, etc. to the Defendant. On June 27, 2014, the Asia trust demanded that the Defendant pay KRW 13823, the Seoul Central District Court issued the said KRW 452,744,160 as the Plaintiff and the Defendants on the ground that the obligee was not a creditor (hereinafter “the instant deposit”).

[Ground of recognition] Unsatisfy, Gap evidence 1 and 2

2. The plaintiffs' assertion

① Article 22(1)2 of the Trust Contract of this case only includes the pertinent taxes imposed on the Asian Trust, which is the trustee of each real estate of this case, on each real estate of this case. The pertinent taxes imposed on the corresponding real estate of this case are not included in the pertinent taxes imposed on the Maulk-C, which is the truster of each real estate of this case. ② The defendant is not a party to the trust contract of this case, and there is no right to invoke the provisions of the Trust Contract of this case, and thus there is no right to demand the preferential settlement of the pertinent taxes on the Asian Trust. Therefore, the Asian Trust cannot pay the amount equivalent to the above property tax, etc. to the defendant before the plaintiffs pursuant to the Trust Contract of this case, and shall pay the above amount to the plaintiffs. Accordingly, the plaintiffs, who are

3. Determination

A. As to the plaintiffs' assertion ①

Article 22(1)2 of the Trust Contract of this case provides that "the pertinent tax, such as the property tax, notified until the proceeds from the disposal of the property are received" under Article 22(1)2 of the Trust Contract of this case shall be settled in preference to "claims of preferential beneficiary" under subparagraph 6 of the same paragraph. However, Article 107(1) of the former Local Tax Act (amended by Act No. 12153, Jan. 1, 2014) that applies to the property tax, etc. imposed on each of the real estate of this case provides that "the person who actually owns the property as of the property tax base date" as the taxpayer for property tax, and Article 22(2)5 of the same Act provides that "trustee" shall be liable for property tax in the case of the trust property registered under the name of the trustee under the Trust Act, and therefore, the person liable for property tax on each of the real estate of this case shall be the truster, regardless of the conclusion of the trust contract of this case. Therefore, even after the conclusion of the trust contract of this case, the trust contract of this case shall not be imposed future.

In addition, according to the instant trust agreement, where a trustee pays taxes and public charges on each of the instant real estate, he/she may receive the expenses from the first beneficiary out of the money to be paid to the beneficiary (see Article 15), and since the tax affairs related to the trust property should be reported and paid by the Maulc on the expense of the Maulccen (see Article 7 of the special agreement). In cases where a Asian trust pays the pertinent tax by subrogation, such as the property tax imposed on the Maulcen before disposing of each of the instant real estate, it may receive the expenses preferentially from the money to be paid to the first beneficiary, such as the cost for disposal of each of the instant real estate, even if the Maulcen paid the amount equivalent to the above property tax, etc. to the Defendant prior to the purchase price of each of the instant real estate, the first beneficiary

In full view of the above facts, it is reasonable to view that the pertinent tax, such as the property tax, etc. notified until the disposal price is received, cannot be interpreted as limited to the pertinent tax, such as the property tax, etc. imposed on the trustee, and it also includes the pertinent tax, such as the property tax, etc. imposed on the truster friendly weather.

B. Regarding the plaintiffs' assertion

In addition, the plaintiffs are not in the position of refusing to settle accounts under the trust agreement of this case as the priority beneficiary or the trustee in bankruptcy who is the party to the trust agreement of this case, and since the contents of the trust agreement of this case are effective as part of the registration record pursuant to Article 81 of the Registration of Real Estate Act entered in the trust ledger, it is reasonable to view that the defendant who is interested in the trust property as the right to impose tax on the trust property even if the party to the contract is not the party to the contract of this case can invoke the contents of the trust agreement of this case as a matter of course (the plaintiff's assertion is very unreasonable as well as the third party who is not the party to the contract

C. Sub-decision

If so, Asian Trust shall pay the amount equivalent to the above tax, etc. out of the proceeds from the disposal of each real estate of this case to the defendant prior to the plaintiffs pursuant to the trust contract of this case, and ultimately, the right to withdraw the deposit of this case to the defendant.

4. Conclusion

Therefore, all of the plaintiffs' claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Jong-young (Presiding Judge)