Disposition to attach trust real estate on the grounds that the truster is delinquent shall be unreasonable.

Disposition to attach the trustee's trust real estate on the grounds that the value-added tax imposed on the truster incurred in selling trust real estate is delinquent;

The contents of the decision shall be the same as attached.

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1. We affirm that the attachment disposition against the Plaintiff on September 22, 2009 regarding each real estate listed in the separate sheet against the Plaintiff is null and void.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

쇠鹬 쇠鹬 3000 쇠鹬 3000

1. Details of the disposition;

가. 원고는 부동산의 신탁 등을 목적으로 설립된 회사로 2009. 3. 16. 주식회사 ◌◌◌◌◌(이하, '소외 회사'라 한다)와 사이에, 2009. 3. 16. 소외 회사가 신축한 제주시 CC동 1288-5, 1288-6에 있는 CC타워 중 별지 목록 기재 각 부동산(이하 '이 사건 압류부동산'이라 한다)을 포함한 45개의 전유부분(이하 '이 사건 신탁부동산'이라 한다)에 관하여 위탁자를 소외 회사, 수탁자를 원고, 우선수익자를 DD, FFFFFF은행, 주식회사 GGGG건설로 하고, 원고가 이 사건 신탁부동산을 보전 • 관리하고 채무불이행시 환가 • 정산하는 것을 목적으로 하며, 신탁기간을 2009. 3.부터 2012. 3.까지로 하는 내용의 부동산담보신탁계약(이하 '이 사건 신탁계약'이라 한다)을 체결하고, 같은 날 소외 회사로부터 이 사건 신탁부동산의 소유권을 이전받았다.

B. The non-party company issued a tax invoice with the non-party company as a supplier while selling part of the real estate of this case. Based on the above tax invoice, the non-party company reported KRW 158,759,768 to the Defendant on January 2009, and KRW 1,762,228,067 to the amount of value-added tax established on January 209.

C. As the Defendant did not pay the above value-added tax reported by the non-party company, on September 22, 2009, the Defendant seized the instant real estate unsold in lots among the instant real estate held in trust (hereinafter “instant disposition”), and on the same day, the registration of seizure was completed.

[Reasons for Recognition] Evidence No. 1, Evidence No. 2-1 to 14, Evidence No. 1-4, Evidence No. 2-1, 2, and Evidence No. 3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

The Plaintiff asserted that the instant disposition on the instant attached real estate, which is a trust property, with the claim for tax payment against the Nonparty Company, constitutes a seizure against the third party’s property, and thus null and void. As to this, the Defendant asserted that the instant disposition is lawful, since the tax payment claim against the Nonparty Company ought to be regarded as the right arising from the performance of trust affairs.

B. Determination

1) In light of the purpose of the instant trust agreement, the sale of the instant trusted real estate in the name of the non-party company, and the tax invoice was issued in the name of the non-party company, and the fact that the taxpayer subject to value-added tax in principle is the truster (see Supreme Court Decision 9Da59290, Apr. 25, 2003) in handling trust affairs, such as management and disposal of trust property under the Trust Act, etc., it is reasonable to regard the taxpayer of the instant value-added tax as the non-party company, and there is no other ground to believe otherwise.

2) If so, it is a matter of whether it is possible to enforce enforcement on the instant seized real estate, which is trust property, based on value added tax claim against the non-party company

Article 21 (1) of the Trust Act shall not be subject to compulsory execution or auction against the trust property.

However, this provision provides that "the case of a right arising from the causes prior to the trust or the right arising from the processing of the trust affairs shall be excluded from the case of a trustee's own property, which is separate from and managed as well as from the trustee's property, and compulsory execution is permitted only in the case of an exception under the proviso of Article 21 (1) of the Trust Act." The purport of the proviso of the above provision is that the creditor who holds "the right arising from the handling of the trust affairs" can exceptionally enforce compulsory execution against the trust property, unlike the trustee's general creditor, unlike the trustee's general creditor, the "claim arising from the handling of the trust affairs" in this provision means a claim arising from the ordinary business activities of the trustee who performs the trust affairs such as the management or disposal of the trust property (see, e.g., Supreme Court Decision 2005Da5843, Jun. 1, 207).

3) Therefore, the instant value-added tax claim cannot be said to be a "right arising from the process of trust affairs" with the truster's claim. Ultimately, the Defendant's disposition of this case is a seizure against a third party's property, which is not a delinquent taxpayer, without any legitimate ground, and its defect is serious and apparent and thus null and void.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.