Korea

Korean Asset Trust Co., Ltd. (Law Firm Democratic, Attorney Choi Sung-dae, Counsel for the defendant-appellant)

October 25, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

1. The defendant shall pay to the plaintiff 177,304,578 won with 15% interest per annum from the day following the delivery of a complaint to the day of complete payment.

1. Facts of recognition;

A. The conclusion of the trust contract with the defendant and the defendant's public auction disposition

1) On June 19, 2006, the Plaintiff entered into a real estate management trust agreement (hereinafter “instant trust agreement”) with the Defendant on the disposal of real estate for the purpose of the security trust for the aggregate building (hereinafter “instant trust agreement”) located within the 69-9 and 7 nautical miles on the ground surface (hereinafter “instant trust agreement”).

In accordance with the instant trust agreement, the instant trust real estate was registered for the transfer of ownership from June 19, 2006 to the Defendant’s future trust in accordance with the instant trust agreement. Thereafter, as the Defendant disposes of the instant trust real estate by public sale based on the instant trust agreement, the ownership transfer registration was completed on February 20, 2012 (A. 3 and 4).

2) According to the instant trust agreement, the order of appropriation for the Defendant’s disposal of trusted real estate and settlement of the disposal price is stipulated as follows.

Article 22 (Method of Settlement, such as Proceeds from Disposal of Property, etc.) (1) of the attached Table included in the main sentence of this Decree (Method of Settlement of Property, etc.) (1) In cases where a trustee liquidates and evaluates real estate in trust, the order of appropriation shall be as follows: 1. Expenses incidental to the procedures for real estate management and public auction, and remuneration to be received by the company; 2. The relevant property tax, etc. notified by the time when the proceeds from disposal of property are received; 3. Lease deposit which takes precedence over the mortgagee, etc. as provided in subparagraph 4;

B. The national tax claim against the plaintiff's credit rating and the corresponding tax on the trust real estate in this case

On June 2016, the Plaintiff has 25 cases of total arrears as of June 2016, and 18,221,109,100 national tax bonds with total arrears amounting to KRW 18,221,10 (A1).

Among them, the amount of gross real estate holding tax in the KCABD is KRW 292,465,780 in total for the year from 2008 to 2011, and when calculating the relevant tax with respect to the real estate held in the instant case, the amount of gross real estate holding tax in the instant case is KRW 66,251,724 in the year from 208, KRW 36,218,020 in the year from 209, KRW 37,259,924 in the year from 201, and KRW 37,574,910 in the total for the year from 201 and KRW 37,304,578 in the year from 201 (hereinafter “instant tax”). (A)

C. Settlement of the proceeds from the disposal of the trust property in this case by the defendant

The Defendant settled the disposal price of the instant trusted on March 13, 2012, but does not include the details that allocate the pertinent tax to the Plaintiff in the settlement statement (A5). On August 5, 2015, the Plaintiff demanded the Defendant to settle the pertinent tax in arrears, which was due to the failure to pay the Plaintiff, but the Defendant did not comply therewith (A7-1 and 2).

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1-6, Gap evidence No. 7-1 and 2, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The "tax notified by the time the disposal price is received" shall be settled in accordance with Article 22 (1) of the Trust Contract of this case (hereinafter referred to as the "Settlement Clause of this case"), and the tax claim against the truster, a truster, established after the trust property of this case was entrusted, shall also be included in the corresponding tax claim against the "Settlement Bank Settlement Bank".

Since the settlement clause of this case constitutes a contract for a third party, the defendant is obligated to pay the pertinent tax directly to the plaintiff (the main cause of claim).

Even if the settlement clause of this case is not a contract for a third party, the defendant constitutes a performance acceptance that requires the plaintiff to pay the tax liability to the plaintiff of the No.S. World, and thus the plaintiff can file a claim for the settlement of the corresponding tax amount with the defendant in subrogation of the non-performing, a bankruptcy administrator, for the settlement of the pertinent tax (the grounds for preliminary claim).

B. Determination

A. First of all, the "property tax, etc. notified until the disposal price is received" under subparagraph 2 of the settlement clause of this case is not limited to "the pertinent tax notified to the defendant who is the trustee", or it is a matter of whether it includes the notification to the truster like the pertinent tax of this case.

(1) If we comprehensively examine the following circumstances, it is reasonable to see that the pertinent provisions in the settlement clause of this case refer to only the pertinent tax that the Defendant, the trustee, bears as the taxpayer in connection with the instant trusted property.

① Under the instant trust agreement that constitutes a private contract under the principle of no taxation without law, the Defendant, the trustee of the instant real estate held in trust, shall not be deemed to bear the said tax liability, in addition to the instant tax obligor’s originally, pursuant to the instant trust agreement.

② In interpreting the settlement clause of this case, the rights of the first beneficiary, who is the substantial interested party, should be considered. In the case of the pertinent tax imposed on the trustee, it is necessary to preferentially settle the relevant tax in preference to the first beneficiary, but it is not necessary to preferentially settle the relevant tax, if the trustee does not bear the liability for payment.

③ Although the pertinent tax is not explicitly imposed on the trustee under the instant settlement clause, it is interpreted that “the right arising in the course of performing the trust business” under the proviso of Article 22(1) of the Trust Act, which exceptionally provides that delinquent disposition, etc. against the trust property may be imposed on the trustee, includes only the right to the trustee as the debtor, and does not include the right to the truster as the debtor (see Supreme Court Decision 2010Du4612, Apr. 12, 2012, etc.).

④ Article 15 of the instant trust agreement provides that taxes and public charges on the instant trust real estate shall be borne by the truster, and where the truster fails to pay them by the due date, the truster shall pay them on behalf of the trustee. In this case, the truster shall pay them to the trustee, including damages for delay, and Article 6 of the instant trust agreement provides that the truster shall dispose of the taxes and public accounts related to the trust property, as well as taxes and public charges imposed on the truster in relation to the instant trust real estate. All these provisions are basically premised on the assumption that the truster bears the burden

If the Defendant, the trustee, pays the tax imposed on the truster pursuant to Article 15(4) of the instant trust agreement instead of the tax imposed on the truster, the cost may be settled preferentially. In such a case, the tax claims of the State or local governments may substantially obtain satisfaction prior to the beneficiary’s right. However, the tax claims of the State or local governments occur only when the trustee pays on behalf of the truster and the truster fails to repay it. As such, the tax imposed on the truster under the instant settlement clause should be interpreted as naturally included in the pertinent tax, considering such circumstances.

⑤ According to Article 183(1) and (2) of the former Local Tax Act, in cases of a trust property registered in the name of a trustee under the Trust Act, a truster, who is not an actual owner, is exceptionally liable to pay property tax. However, in cases of a trust property not registered in the name of a trustee even if it is a trust property, considering the legal doctrine that a trustee is liable to pay property tax (see, e.g., Supreme Court Decision 2012Du26852, Nov. 27, 2014), on the ground that the property tax imposed on the truster is not included in the pertinent tax of the instant settlement clause, it cannot be deemed that the instant settlement clause 2 does not have any meaning.

B. As long as the pertinent tax imposed on the truster in the pertinent tax settlement clause is deemed not to be included in the pertinent tax, the Plaintiff’s assertion as to the main claim or the conjunctive claim is without merit without any further determination.

3. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.

Judges Choi Jin-cil