Seosung-si (Law Firm Dasan, Attorney Seo-hoon et al., Counsel for defendant-appellant)

Defendant Co., Ltd. (Law Firm Domine, Attorney Kim Han-han, Counsel for defendant-appellant)

May 21, 2009

Suwon District Court Decision 2008Gahap8747 Decided October 10, 2008

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

With respect to real property listed in the Schedule:

A. The trust contract concluded on September 10, 2004 between the defendant and the non-party company shall be revoked.

B. The defendant shall implement the procedure for the cancellation registration of transfer of ownership, which was completed on September 10, 2004 by the Suwon District Court Registry No. 102368, which was completed on September 10, 2004.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the statements in Gap's 1 through 9, 13 through 17 (including branch numbers if there are branch numbers; hereinafter the same shall apply), Eul's 1, 2, and 7 through 9 and the purport of the whole pleadings:

A. Formation of a taxation claim

○ The non-party company, from March 2003, conducted the business of newly building and selling commercial buildings on the land, etc. (number omitted) at the Sinsung-si (hereinafter “instant land”) in Taesung-si (hereinafter “instant land”), completed the construction of new commercial buildings including real estate listed in the separate sheet (hereinafter “instant real estate”), and obtained the approval of the use of the instant commercial building from the Plaintiff on August 13, 2004.

On September 10, 2004, ○○ Company paid KRW 69,727,980 as registration tax while completing registration of preservation of ownership for the instant commercial buildings in its future.

On the same day, ○○ Company reported acquisition tax of KRW 159,79,793,280 on acquisition tax of the instant commercial building and special rural development tax of KRW 7,263,31,292 to the Plaintiff, and received a written notice from the Plaintiff as of September 12, 2004.

○, however, the non-party company did not pay the above acquisition tax and special rural development tax amounting to KRW 159,793,280 (hereinafter the Plaintiff’s above taxation claim against the non-party company).

B. Conclusion of the first trust agreement between the non-party company and the defendant

From March 2003, ○○ Company, while carrying out the new construction and sale business of the instant commercial building from around March 2003, obtained loans from the National Agricultural Cooperative Federation (hereinafter “CF”) up to KRW 9 billion. Around the same time, it entered into a business agreement with the Agricultural Cooperative and the ○○ Comprehensive Construction Co., Ltd., Ltd. with the following contents.

▷ 주식회사 ○○종합건설이 소외 회사의 농협에 대한 대출금 채무를 연대보증한다.

▷소외 회사는 이 사건 토지에 관해 농협 앞으로 근저당권을 설정해 주고, 그 후 이 사건 토지의 관리를 위해 이를 부동산신탁 회사에게 신탁한다.

▷이 사건 상가의 사용승인 후에 소외 회사의 농협에 대한 채무가 남아 있을 경우, 소외 회사는 이 사건 상가의 미분양 부분을 농협이 지정한 부동산신탁 회사에게 담보 또는 처분 신탁한다.

Pursuant to ○○, on March 27, 2003, between the Defendant and the real estate trust company, the non-party company entered into a trust agreement for the management, etc. of the instant land with the beneficiary as the non-party company (hereinafter “the first trust agreement of this case”). On March 31, 2003, the non-party company completed the registration of ownership transfer based on the trust in the future of the Defendant on the instant land.

C. Conclusion of the second trust agreement between the non-party company and the defendant

After ○○, the non-party company entered into an additional agreement with the Defendant on May 17, 2004 regarding the first trust agreement of this case in accordance with the foregoing business agreement and entered into an agreement with the Defendant on May 17, 2004, and if the debt to the non-party company for the non-party company remains until the time of registration of ownership preservation, the non-party company entered into a security trust agreement on the unsold portion in the commercial

On August 13, 2004, ○○ Company obtained approval for the use of the instant commercial building from the Plaintiff, and on September 10, 2004, pursuant to the above additional agreement, concluded a trust agreement with the Defendant (hereinafter “instant secondary trust agreement”).

▷신탁목적 : 신탁부동산(이 사건 상가)의 소유권 관리와 소외 회사가 부담하는 채무 내지는 책임의 이행을 보장하기 위하여 피고가 신탁부동산을 보전·관리하고 채무 불이행시 환가·정산하는 데 그 목적이 있다.

▷신탁기간 : 2004. 9. 10.부터 2007. 9. 30.까지로 하고, 소외 회사는 신탁기간 종료 전에 피고와 협의하여 그 기간을 연장할 수 있다. 신탁기간 종료 전에 우선 수익자의 요청 등에 의하여 신탁부동산을 처분한 경우에는 매수인에게 소유권이전등기를 마친 때에 신탁계약이 종료되는 것으로 본다.

▷수익자 : 제1순위 우선수익자는 농협(방배지점), 제2순위는 주식회사 ○○종합건설, 제3순위는 농협(성내동지점)이고, 소외 회사는 피고의 승낙을 얻어 수익자를 추가 지정하거나 변경할 수 있다.

▷신탁부동산의 소유권이전 및 신탁등기 : 소외 회사는 신탁계약 체결 후 지체없이 신탁부동산의 소유권이전 및 신탁내용을 공시하기 위하여 등기필증, 인감증명서, 위임장 등 신탁등기에 필요한 제반서류를 피고에게 제공하여야 한다.

On September 10, 2004, the non-party company obtained the above consent of the Agricultural Cooperative on the land of this case and received the registration of ownership transfer on the ground of its own trust property in the future, and made the registration of ownership transfer on the commercial building of this case including this case in the name of the non-party company, and made the registration of ownership transfer on the same day for the commercial building of this case in the future of the defendant.

2. The parties' assertion

A. The plaintiff's assertion

The non-party company concluded the second trust contract of this case and completed the registration of the trust on the same day with the intent to avoid the tax claim of this case in collusion with the defendant, taking advantage of the fact that it is impossible to seize or request the delivery of the trust property with the right that occurred before the trust. Thus, it should be revoked as it constitutes a fraudulent act.

B. Defendant’s assertion

Around March 2003, the establishment of the taxation claim of this case, the non-party company entered into a business agreement with the Nonghyup and agreed to trust the commercial building of this case with the registration of ownership preservation in case the loan of the non-party company remains. Accordingly, the non-party company entered into the second trust contract of this case and completed the trust registration thereof. Thus, this does not constitute a fraudulent act.

3. Determination

A. According to the above facts, when the company outside △△ was carrying out a new construction and sale business of the commercial building of this case from March 2003 to ○○ Construction Co., Ltd., which is a loan holder, around that time, the company entered into a business agreement with the defendant and entered into a real estate trust agreement with the non-party company designated by the agricultural cooperative after the approval for use of the commercial building of this case, to trust the commercial building of this case to the real estate trust company designated by the non-party. On March 27, 2003, the non-party company entered into the first trust agreement with the defendant on March 27, 2003 and entrusted the land of this case, which is the site of the commercial building of this case, to the defendant on May 17, 2004, and to make an additional agreement with the defendant on May 17, 2004, and to trust the commercial building of this case to the defendant until the registration of preservation of ownership of the commercial building of this case remains.

Meanwhile, according to the above facts, the non-party company obtained approval for the use of the commercial building of this case on August 13, 2004, and reported acquisition tax and special tax for rural development on September 10, 2004.

B. Thus, the second trust contract of this case between the non-party company and the defendant on September 10, 2004 is the business agreement between the non-party company and the agricultural cooperative on March 2003, which was about one year and six months before, and the first trust contract of this case concluded between the non-party company and the defendant on March 27, 2003 pursuant to the above business agreement, and the first trust contract of this case, May 17, 2004, as well, a series of continuous contracts concluded during the process of undergoing additional agreements between the non-party company and the defendant on May 17, 2004 under the above business agreement. The non-party company acquired the commercial building of this case, which was approved for use on August 13, 2004, and performed the legal act concluded prior to its establishment.

The plaintiff shall exercise the creditor's right to cancel the claim of this case based on the above tax liability as the preserved right, and as seen above, the second trust contract of this case shall be deemed to be the performance of a legal act concluded before the above tax liability is established, which shall not be subject to the creditor's right to cancel as a fraudulent act (see Supreme Court Decision 2000Da4352 delivered on April 12, 2002). Ultimately, the plaintiff's claim of this case is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed, and since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed. It is so decided

[Attachment Omission of List of Real Estate]

Judges Cho Young-hee (Presiding Judge)