Seocho 2010west 2482 ( October 19, 2010)

Disposition of attaching real estate on trust property shall be null and void as a matter of course.

After the trust under the Trust Act is made pursuant to the trust contract, the disposition of attaching real estate under the name of the plaintiff, the trustee, based on the tax claim against the company which is the truster, shall be deemed to be null and void as a seizure for the property of a third party, which is not the taxpayer.

2011Guhap2095 Nullification, etc. of attachment disposition

주식회사〇〇

〇〇세무서장

1. It is confirmed that each attachment disposition that the Defendant has made on each real estate listed in the Schedule on July 5, 2010 is invalid.

2. The litigation costs shall be borne by the defendant.

The primary purport of the claim is as shown in the text of the claim.

Preliminary claim: Each attachment disposition made by the defendant on each real estate stated in the attached Form on July 5, 2010 shall be revoked.

1. Circumstances of dispositions;

A. On April 12, 2007, the Plaintiff (the Plaintiff’s trade name at the time of the trust agreement as seen below is a company established for the purpose of the trust, etc. of real estate, and entered into a real estate security trust agreement with the truster and beneficiary, the trustee, and the Plaintiff and the first beneficiary designated as the National Agricultural Cooperative Federation, which included each real estate listed in the separate list owned by the non-party company (hereinafter “each real estate of this case”), with respect to the multi-family housing located in Pyeongtaek-si, Dong-dong, 766-1, 766-2, and 766-2, including each real estate listed in the separate list owned by the non-party company (hereinafter “each real estate of this case”), with a view to ensuring the liability and liability to be borne by the non-party company to the first beneficiary with respect to the multi-family housing located in Pyeongtaek-si, Dong-dong, the non-party company should preserve and manage the real estate of this case, and when the non-party company fails to perform its obligation, the registration of ownership transfer was completed under the name of the trust of this case.

B. On July 5, 2010, the Defendant attached each of the instant real estate (hereinafter “instant disposition”) on the ground that the Nonparty Company defaulted on KRW 405,584,940, including the value-added tax of KRW 64,815,780 in 2007; KRW 282,758,550 in corporate tax of 207; KRW 57,628,450 in 209; and KRW 382,160 in 2010 in value-added tax of KRW 382,160 in 20.

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 6, Eul evidence 1 through 3 (including paper numbers), the purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The parties' assertion

(i)The plaintiff's assertion

The Defendant’s attachment of each of the instant real estate, which is the Plaintiff’s entrusted property, based on the instant taxation claim against Nonparty Company, is illegal since the instant disposition was conducted in violation of Article 24(1) of the National Tax Collection Act setting the subject of attachment as the taxpayer’s property, and Article 21(1) of the Trust Act prohibiting compulsory execution against trust property. Thus, the Defendant’s primary defect is serious and obvious, seeking confirmation of invalidity of the instant disposition, and sought revocation in preliminary order.

(2) The defendant's assertion

The instant taxation claim against the non-party company is arising from the non-party company's failure to report and pay taxes incurred in the course of developing and selling trust property normally, and thus constitutes "the right arising in the course of performing the trust business" under the proviso of Article 21 (1) of the Trust Act. In addition, even if the truster transfers the ownership to the trustee pursuant to the trust contract under the Trust Act, it is merely a formal transfer for preventing the reduction of trust property and protecting beneficiaries, etc. in preparation for the case where the truster fails to perform his/her obligations in the future. Thus, the instant disposition is lawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) In light of the provisions of Article 24 of the National Tax Collection Act, which provides for the requirements for seizure as a disposition for arrears, the disposition of seizure against a third party’s property, which is not a taxpayer, is null and void as the content of the disposition is not legally realized (see, e.g., Supreme Court Decision 200Da68924, Feb. 23, 2001).

(2) First, as to whether the claim of this case constitutes "the time limit for the rights arising from the process of trust affairs" under the proviso of Article 21 (1) of the Trust Act, Article 21 (1) of the Trust Act provides that compulsory execution or auction shall not be conducted against the trust property, and that compulsory execution or auction against the trust property shall be permitted exceptionally only in the case of "the rights arising from the process of trust affairs". "the rights arising from the process of trust affairs" refers to not only the rights arising from the management and disposal of the trust property (the trustee's expenses and claims under Article 42 of the Trust Act, the trustee's claims for damages under Article 43 of the Trust Act, and the claims that are directly related to the trust property such as the right to remuneration under Article 43 of the Trust Act) but also the rights arising from the trust property itself fall under the claims against the trust property. However, as seen earlier, the taxation claims of this case are merely against the non-party company that is the truster, and it cannot be viewed as the rights arising from the plaintiff's ordinary process of trust affairs.

(3) Next, as to the assertion that the real estate in this case is merely a formal transfer procedure and thus cannot be seen as the trustee's proprietary property, the trust under the Trust Act refers to the legal relationship that the truster transfers or disposes of a specific property right to the trustee, and has the trustee manage or dispose of the property right for a specific person's interest or for a specific purpose, based on a special trust relationship between the truster and the trustee, and where the property right is transferred to the trustee under the trust agreement, the trust property can be absolutely transferred to the trustee (see, e.g., Supreme Court Decision 2007Da54276, Mar. 13, 2008). Accordingly, the defendant's assertion on this part is without merit.

(4)Therefore, after the trust under the Trust Act was made under the trust contract of this case, the disposition of this case, which seized each real estate of this case, which is the trust property in the name of the plaintiff, under the taxation claim of this case against the non-party company which is the truster, shall be deemed to be null and void as a seizure against the property of a third party which is not the taxpayer.

3. Conclusion

Thus, the plaintiff's primary claim of this case is justified and accepted.