Suwon District Court Sejong District Court Decision 2011Gadan1811 ( December 06, 2012)

The method of filing a claim for transfer registration where seizure is executed on the claim for transfer registration of ownership;

Where seizure is executed on the claim for transfer registration of ownership, the claim for transfer registration is subject to the cancellation of seizure on the claim for transfer registration of ownership (when the execution of seizure is revoked).

Articles 24, 53, and 54 of the National Tax Collection Act

2013Na5487 Registration of cancellation of ownership transfer registration.

Korea

AAA Trust Co., Ltd.

Suwon District Court Decision 2011Da18111 Decided December 6, 2012

July 17, 2013

August 2, 2013

1.The judgment of the first instance shall be modified as follows:

A. At the same time, the Defendant receives OOOOO payments from KimB (OO-OOOOOO)

1) On July 31, 2006, when the seizure of each right to claim the transfer of ownership in the separate sheet No. 1 list is cancelled, the procedure is implemented on July 31, 2006 on the real estate listed in the separate sheet No. 1 list to KimB;

2) On July 31, 2006, when the seizure of each right to claim ownership transfer registration listed in the separate sheet No. 2 list is cancelled, the procedure is implemented on July 31, 2006 on the real estate listed in the separate sheet No. 2 list to KimB;

3) On July 31, 2006, when the seizure of each right to claim the transfer of ownership in the separate sheet No. 3 list is cancelled, the procedure will be implemented on July 31, 2006 on the real estate listed in the separate sheet No. 3 list to KimB.

B. The plaintiff's remaining claims are dismissed.

2. One-fourth of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

On November 11, 2011, the Defendant shall implement each procedure for the registration of ownership transfer on the real estate listed in the separate sheet Nos. 1, 2, and 3 to KimB (or on July 31, 2006, due to the termination of the trust).

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked and the plaintiff's claim corresponding to the revocation part is dismissed.

1. Basic facts

A. The Plaintiff has a taxation claim against KimB on the aggregate of the value-added tax and global income tax.

“. The KimB shall, on December 7, 2004, be between the Defendant and the consignee: KimB

Trustee: Defendant

Trust Period: up to July 30, 2005, the trust contract was concluded to manage and preserve the ownership of each real estate listed in the separate sheet Nos. 1, 2, and 3 (hereinafter referred to as the “instant trust contract”). On December 8, 2004, the registration of ownership transfer was completed due to the trust on each real estate listed in the separate sheet Nos. 1, 2, and 3. (c) The KimB and the Defendant concluded a trust contract to change the trust term to July 26, 2005 by July 31, 2006.

D. KimB is in excess of obligations because there are more small assets than active assets.

[Reasons for Recognition] Facts without dispute, entries in Gap evidence 1 through 4 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination on the cause of the claim

"A. In order to preserve the taxation claim against KimB based on the obligee's subrogation right under the Civil Act, the Plaintiff filed a claim with KimB for the registration of ownership transfer based on the termination of July 31, 2006 of the trust contract of this case on behalf of the Defendant on behalf of KimB on behalf of the Defendant on the basis of the obligee's subrogation right under the Civil Act (the claim for the registration of ownership transfer based on the termination of the trust contract of this case on November 11, 201 is subject to the claim for the registration of ownership transfer based on the termination of the trust contract of this case)" (B). Accordingly, the trust contract of this case terminated due to the expiration of the trust period of July 31, 2006, and the Plaintiff, the obligee against KimB, the insolvent KimB, can exercise the right to claim the registration of ownership transfer on behalf of KimB on behalf of KimB, the Defendant is obligated to perform the registration of ownership transfer on each real estate listed in attached Form I, 2, and 3 List.

3. Judgment on the defendant's defense

A. Judgment on the defense that the plaintiff's claim should be accepted on the condition that the seizure is cancelled

1) The defendant's gist of defense

The Plaintiff’s claim should be accepted on the condition that each of the above seizure should be cancelled, because there was a seizure as shown in the attached Form 1, 2, and 3 against the Defendant on the right to claim the registration of ownership transfer as to each of the real estate listed in the attached Table 1, 2, and 3 list on the ground of the termination of the instant trust contract.

2) Determination

Where the right to claim for registration of transfer of ownership seeks the implementation of the procedure for registration of transfer of ownership based on the right to claim for registration of transfer of ownership of a real estate attached by a third party, the third party obligor becomes final and conclusive and conclusive, and in such a case, the court shall not accept the claim unless it conditions the cancellation of seizure (see, e.g., Supreme Court Decision 98Da42615, Feb. 9, 199).

In full view of the health stand, Eul evidence Nos. 1 and 2, response results and the purport of arguments by the president of the National Health Insurance Corporation and the president of the Korea Health Insurance Corporation as to the fact inquiry by the court of the first instance, the creditors of KimB, such as the head of Pyeongtaek-si Tax Office, the head of Dongwon Tax Office, the head of Suwon Tax Office, the President of the Korea Workers' Compensation and Welfare Office, the president of the Korea Workers' Compensation and Welfare Office, and the Gan City Mayor, etc., of the case, shall attach the right to claim for ownership transfer registration based on the termination of the trust contract of this case against the defendant of KimB as stated in the above list, and each of the above

Therefore, the defendant's defense is well-grounded, and the defendant is obligated to implement the registration procedure for transfer of ownership due to the termination of the trust contract of this case with respect to each real estate listed in the separate sheet Nos. 1, 2, and 3, subject to the cancellation of the execution of seizure as stated in the separate sheet Nos. 1, 2,

B. Determination as to the defense of simultaneous performance on the ground of KimB’s duty to pay remuneration under the instant trust agreement

1) The defendant's argument

The trust fees that the Defendant did not receive from KimB pursuant to the instant trust agreement reach the total amount of OOO, and the truster’s duty to pay trust fees and the trustee’s duty to transfer trust property are concurrently performed. Therefore, the Defendant is only obligated to pay the above trust fees from KimB and to implement the registration procedure for transfer of ownership.

2) Determination

The duty to pay remuneration for a trust that a truster or a beneficiary bears and the duty to transfer the trust property to a beneficiary, a truster, or a truster, etc. at the time of termination of the trust is a debt arising from the trust relationship. Before the trustee completes the trust, the trustee may sell the trust property with respect to the right to claim remuneration under Articles 42(1) and 43 of the former Trust Act (amended by Act No. 10924, Jul. 25, 201; hereinafter the same shall apply) and appropriate the proceeds from the sale thereof for repayment in preference to other right holders. Even after the trust property belongs to the beneficiary, etc. after the termination of the trust, the truster or the beneficiary can perform compulsory execution or auction the trust property with respect to the trust property with the right to claim remuneration under Article 62 and 49 of the former Trust Act (amended by Act No. 10924, Jul. 25, 201; hereinafter the same shall apply). 2007; 2065.

“The trust remuneration from December 7, 2004 to July 31, 2006, which is the contract term of the instant trust contract, shall be stated as OO(the trust remuneration specified in Article 10 of the trust deed, shall be OO) separately prepared for each of the real estate stated in the separate trust ledger as to the attached Forms 1, 2, and 3, and each of the changes was made on the same day, and the purport of the Defendant’s assertion (see, e.g., Supreme Court Decision 201Da370, Dec. 30, 201) is as follows: (a) considering that the trust remuneration under the instant trust deed was made on the same day; (b) from December 7, 2004 to July 31, 206, the trust remuneration of each of the above real estate stated in the attached Schedules No. 1, 2, and 3, the trust remuneration of this case is determined as KRW 300,000; and (c) the trust remuneration of this case shall not be paid within 706,0,06.

C. Sub-committee

Ultimately, at the same time, the defendant is obligated to implement the registration procedure for transfer of ownership on July 31, 2006 to KimB on each real estate listed in the separate sheet Nos. 1, 2, and 3, subject to the cancellation of the execution of each seizure listed in the separate sheet Nos. 1, 2, and 3, at the same time as the payment of OOB from KimB.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. 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 modified as above, it is so decided as per Disposition.