Tax and public charges, such as property tax notified in the name of the bank under the trust contract agreed upon by the truster and the trustee, shall not include the pertinent tax imposed on the truster.

Since the trustee disposes of the trust property under the name of the trustee based on a tax claim against the truster, the trustee disposes of the property under the name of the trustee, which is not the taxpayer, by the seizure of the property under the name of another person.

Article 24 of the National Tax Collection Act

2017 Confirmation of claims for payment of deposit money 501301

AA Bank et al. and two others

The Republic of Korea and four others

September 15, 2017

December 1, 2017

1. 원고들과 피고들 사이에, 주식회사 AA은행이 2016. 12. 22. 서울QQ지방법원 2016년 금 제00000호로 공탁한 15,438,590,070원 중 1,260,293,067원은 원고 주식회사 AA은행에, 12,287,857,403원은 원고 주식회사 BB은행에, 1,890,439,600원은 원고 FFFF유통 주식회사에 각 공탁금출급청구권이 있음을 확인한다.

2. 원고들과 피고들 사이에, 주식회사 AA은행이 2016. 12. 22. 서울QQ지방법원 2016년 금 제11111호로 공탁한 6,770,187,190원 중 552,668,342원은 원고 주식회사 AA은행에, 5,388,516,335원은 원고 주식회사 BB은행에, 829,002,513원은 원고 FFFF유통 주식회사에 각 공탁금출급청구권이 있음을 확인한다.

3. The supplementary intervenor shall bear the part relating to the participation in the litigation cost, and the remainder shall be borne by the Defendants.

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

(a) Conclusion of a security trust contract;

1) From May 2006 to July 2006, J 00-Gu 00 FF 00 FF dong Co., Ltd. (hereinafter “CCland”) and DF Distribution Center (hereinafter “instant development project”) acquired land and buildings with a view to carrying out a new development project and development project (hereinafter “instant development project”).

2) On May 11, 2006,CC Co., Ltd. entered into a real estate security trust agreement (hereinafter referred to as "the instant trust agreement") with the Plaintiff AA Bank (hereinafter referred to as the "Plaintiff AA Bank"), with the first beneficiary as SS Lease Co., Ltd., and with the third beneficiary as the truster and the third beneficiary as the CC Co., Ltd., and with the third beneficiary, JJ 00-4 through 00-7 land (hereinafter referred to as "the instant real estate") acquired as the project site of the instant development project, which is entrusted to the Plaintiff A Bank with the real estate property of the JJ 00-Gu FFdong, 00-4 through 00-7 land (hereinafter referred to as "the instant real estate"). At that time, the Plaintiff A Bank completed the registration of ownership transfer based on the instant trust agreement with respect to the instant real estate.

3) The instant trust agreement was amended several times due to changes, etc. of the priority beneficiary, and the truster and the third beneficiary and the trustee were equally maintained, and at present, the Plaintiffs are designated as the first priority beneficiary.

B. Disposition to liquidate the real estate of this case

1) CC랜드, 주식회사 DD시티가 추진하던 이 사건 개발사업은 중도에 무산되었고, CC랜드에 대하여 2014. 10. 22. 서울QQ지방법원 2000하합000호로 파산이 선고되었으며, 피고 파산자 주식회사 CC랜드의 파산관재인 오OO(이하 '피고 파산관재인'이라 한다)이 파산관리인으로 선임되었다.

2) Since then, pursuant to Article 19(1) of the instant trust agreement, the Plaintiffs, who are the first priority beneficiaries, requested the Plaintiff AA Bank to dispose of the instant real estate, and the Plaintiff AA Bank completed the realization procedure by proceeding with the public sale disposal procedure under the instant trust agreement.

C. Demanding the Defendants to distribute

1) From June 2010 to June 2013, 2013, the Defendant Republic of Korea demanded distribution by asserting that the sum of the principal and additional charges of comprehensive real estate holding tax on the instant real estate, the increased additional charges shall be 15,438,590,070 won, based on the order of settlement of the disposal price under Article 23 of the instant trust agreement, and the right of priority collection under each tax law, shall be more than the distribution of the profits of the first beneficiary. Defendant JJ-si 00 Gu (hereinafter referred to as “Defendant 00 Gu”) also requested the bankruptcy trustee of the Republic of Korea to distribute the proceeds of the instant real estate, based on the right of priority collection under each tax law. Defendant JJ-si 0 Gu (hereinafter referred to as “Defendant 00 Gu”), which was delinquent from September 20, 2010 to September 20, 2013, 6,770,187, and 190 won, based on the order of settlement of the disposal price of the instant real estate and the dividends to Defendant 1.

2) 이에 원고 AA은행은 2016. 12. 22. 채권자 불확지를 이유로, ① 서울QQ지방법원 2016년 금 제00000호로 피공탁자를 공동 1순위 우선수익자들인 원고들 또는 피고 대한민국 또는 피고 파산관재인으로 하여 15,438,590,070원(이하 '이 사건 제1 공탁금'이라 한다)을, ② 서울QQ지방법원 2016년 금 제11111호로 피공탁자를 공동 1순위 우선수익자들인 원고들 또는 피고 00구 또는 피고 파산관재인으로 하여 6,770,187,190원(이하 '이 사건 제2 공탁금'이라 한다)을 각 변제공탁하였다.

D. The contents of the instant trust agreement pertaining to the instant case are as follows.

Article 16 (Bearing of Expenses)

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

(3) Where a truster fails to pay expenses, etc. under paragraph (1) at the time of payment, a bank may pay them on behalf of the bank, and in such cases, the truster shall pay the interest calculated based on the interest rates on overdue loans in the bank's own account from the date following the date of payment on behalf

(4) A bank may receive a deduction from the money or property to be paid to a truster or preferential beneficiary as well as damages for delay referred to in paragraph (3).

Article 19 (Time for Disposal of Trust Real Estate)

(1) In any of the following cases, a bank may dispose of the trusted real estate at the request of the priority beneficiary even before the expiration of the trust period:

1. Where he/she fails to fulfill credit transactions and the agreement on guarantee obligation concluded between the preferential beneficiary and the debtor: Provided, That where the truster fails to fulfill the obligation arising from a guarantee agreement between the truster and the preferential beneficiary, a guarantee agreement, a security contract, etc.;

Article 23 (Settlement Method, such as Proceeds from Disposal)

(1) A bank shall keep the settlement order according to realization procedures from the proceeds from the disposal of real estate trusted:

1. Expenses and remuneration related to the trust deed;

(a) Expenses: Electricity, water supply, management expenses, insurance premiums, newspaper announcement fees, etc. (tax and public charges, such as property tax, etc. notified in the bank name by the date the balance of disposition is received);

(b) Remuneration: Fees for disposal of property and fees for the management of unpaid property payable to a bank;

2. Small-sum lease deposit (Article 8 of the Housing Lease Protection Act) before the registration of trust;

3. Claim secured by the lease deposit (Article 3-2 of the Housing Lease Protection Act), mortgage (within the maximum amount of claims), lease on a deposit basis, lease on a deposit basis, and registered lease right prior to the registration of a trust: Provided, That the order of priority among them shall

4. Money that does not fall under subparagraphs 2 and 3, which has a duty to return to a bank;

5. Claims of priority beneficiaries;

6. To pay the remainder to the beneficiary (the truster, if the beneficiary does not have the beneficiary), if any, after making a successive repayment.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 5, Eul evidence 4 to 7 (including each number), the purport of the whole pleadings

2. Determination as to the cause of action

A. Article 107(2)5 of the former Local Tax Act (amended by Act No. 12153, Jan. 1, 2014); Article 107(2)5 of the same Act provides that a truster, who is not a trustee, shall be liable for property tax. Article 22(1) of the Trust Act allows compulsory execution, auction for exercising a security right, preservative measures, national taxes, etc. against a trust property only when the right arising before the trust or the right arising in the course of performing the trust affairs is due. However, where a truster transfers the ownership of the real estate to a trustee and a trust relationship is established under the Trust Act between the parties, the trust property cannot be deemed as the truster’s property any longer after the trust is entirely transferred to the trustee, and the property tax imposed upon the truster as a taxpayer on the trust property after the trust cannot be deemed as falling under the “right arising from a cause arising before the trust” under Article 22(1) of the Trust Act, and such property is not included in the “right arising from the trust affairs” under the same paragraph.

On the other hand, a taxation claim is a right that is recognized as a priority right and a right to self-performance under the National Tax Collection Act, and of which private autonomy is recognized, and its establishment and exercise can only be determined by Acts and subordinate statutes, and the parties cannot arbitrarily determine its contents, etc. in order to protect the people from unfair tax collection and ensure fairness in tax burden. As a legal relationship under public law, an administrative litigation is subject to the Administrative Litigation Act in principle, and a tax is distinguishable from a legal claim under private law in that it has the characteristics of public interest and public nature. Therefore, realizing the ultimate satisfaction of a taxation claim by imposing or guaranteeing a tax obligation on a person without a tax liability under a contract that is not a tax law, not a tax law, is contrary to the inherent nature of the taxation mentioned above, and it is not permissible for a taxation authority to arbitrarily expand the scope of establishment and exercise of a taxation claim without statutory provisions for convenience in tax collection (see Supreme Court Decision 2016Da224961, Aug. 29, 2017).

B. In full view of the following circumstances, it is reasonable to interpret that the "tax and public charges, such as property tax, etc. notified in the name of the bank not later than the date of the agreement on the receipt of the balance of disposal under Article 23 (1) 1 (a) of the instant trust agreement, which is appropriated by the Plaintiff AA Bank in the first order when it realized the instant real estate and settle the proceeds of its disposal pursuant to the instant trust agreement, include only the taxes and public charges imposed by the Plaintiff AA Bank as the taxpayer in relation to

1) The amount of money that the Defendants demanded the Plaintiff AA Bank to pay from the proceeds from the disposal of the instant real estate is the property tax and other taxation claims imposed by the Defendant Republic of Korea and the 00-Gu onCCland, the truster of the instant real estate, and the Plaintiff A Bank, the trustee of the instant real estate, not only under the instant trust contract, which is a private contract, cannot be deemed to bear the above taxation obligations against the Defendant Republic of Korea and the 00-Gu.

2) In addition, in light of the purpose of the instant trust agreement and the intent of the parties to the contract, etc., it is difficult to regard Article 23(1)1(a) of the said trust agreement as a contract for a third party for the purpose of having Defendant Republic of Korea and 00 the trustee acquire the right to Plaintiff AB bank directly. Even if there is room to regard the said provision as a contract for a third party, it is also true that Defendant Republic of Korea and 00 Gu can not acquire or exercise a tax claim against Plaintiff AB bank under the instant trust agreement, which is a private contract.

3) As seen earlier, tax claims against a trustee cannot be newly established pursuant to a trust contract, which is a private law contract, and it cannot be distributed to the truster in the auction procedure of the executing court on the trust property, or upon the truster’s taxation claims. Thus, even in cases where the trustee fails to pay taxes and public charges, such as the property tax or comprehensive real estate tax, imposed on the truster when settling the disposal price of the trust property, the local government cannot directly exercise the truster’s taxation claim. Thus, there is no substantial significance to interpret that the trustee includes the tax and public charges imposed on the truster. Further, among the claims stipulated under Article 23(1) of the trust contract of this case, it is reasonable to view the remainder of the claims except for the above taxes and public charges imposed on the truster (such as the trustee’s remuneration, the lessee’s deposit prior to the registration of the trust, and the creditor’s claim, etc.) to be appropriated at the time of settlement of the disposal price, regardless of the creditor’s right under Article 23(1) of the above Act.

4) As to "the time limit for the right to conduct the trust affairs, which is one of the reasons exceptionally provided for in Article 21(1) of the former Trust Act (wholly amended by Act No. 10924, Jul. 25, 2011; hereinafter the same shall apply), which was in force at the time of the instant trust contract, to which case the trust property under the Trust Act belongs wholly and externally to the trustee and is not reserved to the truster in the internal relationship with the truster, and Article 21(1) of the former Trust Act does not include only the right to conduct the trust affairs as the debtor, considering the fact that the trust property under the Trust Act is not reserved to the truster in order to ensure the independence of the trust property in order to smoothly achieve the purpose of the trust (see, e.g., Supreme Court Decision 2010Du4612, Jul. 25, 201).

5) Meanwhile, Article 16 of the instant trust agreement provides that taxes and public charges on real estate held in trust shall be borne by the truster, and where the truster does not pay them at the time of payment, the truster shall pay them on behalf of the truster, including damages for delay. In principle, the truster bears the burden of the truster. If the trustee pays the taxes and public charges imposed on the truster in connection with the real estate held in trust on behalf of the truster pursuant to Article 16(4) of the instant trust agreement instead of the money to be paid by the truster, the cost may be settled first than the money to be paid to the beneficiary. In such a case, the tax claims of the State or the local government may result in the result that the truster obtains preferential satisfaction than the right of the beneficiary. However, the tax charges and public charges imposed on the truster under Article 23(1)1(a) of the instant trust agreement shall be interpreted as naturally included in the tax charges imposed on the truster in consideration of such circumstances.

6) In light of Article 183(1) and (2) of the former Local Tax Act (wholly amended by Act No. 10221, Mar. 31, 2010) that was enforced at the time of the conclusion of the instant trust contract, the truster is liable to pay property tax in cases of a trust property registered under the trustee’s name pursuant to the Trust Act, and in cases of a trust property not registered under the trustee’s name even if it is a trust property, the truster is liable to pay property tax in cases of a trust property registered under the trustee’s name; and in cases of a trust property not registered under the trustee’s name, the actual owner of the property, which is the person liable to pay tax, and the trustee becomes liable to pay tax (see, e.g., Supreme Court Decision 2012Du26852, Nov. 27, 2014). Thus

C. Therefore, each of the instant deposit money is not the amount that should be settled first to Defendant Republic of Korea, 00 Gu, or Defendant trustee in bankruptcy, who is a truster, but the amount that should be paid to the preferential beneficiary. Thus, each of the instant deposit money is the priority beneficiary under the trust contract of this case, and each of the instant deposit money should be paid in proportion to the plaintiffs. Considering the purport of the argument in Gap evidence 6, the distributed amount based on the plaintiffs' claim value of the 1st deposit money as stated in attached Table 1,260, 293,067, Plaintiff BB bank's 12,287,857, 403, Plaintiff FFFFF distribution corporation's 1,890,439, and Plaintiff CFFF distribution corporation's 285, 2586, 365, 2586, 365, 258, 365, 200, 365, 365, 286, 5, 360, 5, 2, 5, 5, etc.

3. Conclusion

Therefore, the plaintiffs' claims shall be accepted for the reasons of the reasons, and it is decided as per Disposition.