집합건물의 구분소유권을 수탁 받은 수탁자의 관리비 납부의무 : 대법원 2012. 5. 9. 선고 2012다13590 판결과 대법원 2018. 9. 28. 선고 2017다273984 판결의 비교 검토 = The trustee’s obligation of payment for maintenance fee who are entrusted with the divided ownership of the aggregate building

집합건물 구분소유권을 수탁한 자의 관리비 납부의무를 판례로 검토했다.

The ownership of a property granted to a trustee by a truster is not suspended from the truster but completely transferred to the trustee, and the trustee has internal and external ownership of the property. And yet the opposing power of trust registration only refers to the efficacy with which the trustee can resist against a third party that it is a trust property differentiated from his or her own property; however, its meaning should not be extended.

Even if the meaning of the opposing power of trust registration is expanded on the basis of Article 81 of Registration of Real Estate Act as in the Supreme Court, it means “the details provided that they may be set, otherwise as an act of trust on the Trust Act,” or “limited to the case of a non-mandatory provision in the interpretation of the Trust Act, though the exclusion of the Trust Act by an act of trust is not provided clearly,” opposing power against a third party can be recognized only for such contents of trust contract.

In this sense, it is judged that the subsequent judgment with an intent to deny the opposing power of trust registration, concerning the contents of trust contract on the contrary to this, is a reasonable judgment in terms of conclusion, judging the provision of Article 18 of the Act on the Ownership and Management of Aggregate Buildings as a mandatory provision.

Nevertheless, it lacks the concrete argumentation process and does not have detailed comments on the relationship with the preceding judgments, which leave something to be desired, but it is judged that, taking into account the Supreme Court’s past judgment and preceding judgment, which broadly recognize the details of the trust contract in which the opposing power of trust registration is applied previously, it would be difficult for the subsequent judgment, which is a divisional judgment to obviously reverse the preceding judgments.

In particular, the incapacitation of a trust creditor’s bond for the trustee through “a special contract on limited liability” between persons concerned in a trust contract should not be misused in the name of the opposing power of trust registration, which makes the intent of limited liability trust newly set up by the present Trust Act lose its substance.

Also, the trustee’s preferential payment right on the Trust Act is recognized for the costs of handling office work for trust spent for handling office work for trust (Article 48, Section 1, Trust Act); the right of self-help sale to arbitrarily sell trust property, if necessary to pay for the cost for handling office work is also recognized (Article 48, Section 2, Trust Act); and the right to attract trust property upon the termination of trust due to the change of the trustee is recognized as well (Article 54, Section 2, Trust Act).

Thus, it is judged that the interpretation that the trustee can resist a third party in a contract on internal reimbursement to prevent temporary expenditure in his or her own account, even giving powerful efficacy of the opposing power of trust registration is rather a distortion of the intent of the opposing power of trust registration. Therefore, the researcher supports the conclusion of the subsequent judgment and hopes that the judgment taking one step further will be delivered on the opposing power of trust registration in the future.