신탁법과 민사법의 교착 - 신탁부동산에 대한 임대차 및 저당권 설정행위를 중심으로 -

신탁부동산의 임대차와 저당권 설정에 관한 법적 쟁점을 다뤘다.

If the trustee leases a house and the tenant acquires a defense setting up against a third party, and the trustee trusts the leased house, the tenant can claim the return of the rental deposit from the trustee, who is the transferee of Article 3, paragraph 4 of the Housing Lease Protection Act, and can claim the right of opposing power and preferential right of satisfaction. If the trustee leased the property without a valid lease while the trustee was not in possession and the trustee subsequently acquired possession, such as by termination of the trust, the tenant claim a defense setting up against the new transferee of the property.

Meanwhile, according to the Supreme Court Decision2019Da300095 delivered on February 17, 2022, courts recognize the trust registration has a priority to a wide range f trust agreements attached to the trust ledger. This means that the trust agreement between the trustor and the trustee has a binding effect even to a third party. However, it is simple and desirable for transaction safety to say that the effect of rust registration only extends to the fact that the relevant real estate belongs to the rust property, and that other trust-related matters cannot be asserted against third parties.

In the case of a trust, the trustee has the ownership, so naturally, the trustee must be the mortgagee. If the trustee incurs a debt and mortgages the trust property, and the creditor and the trustee agree that the trustee will not incur the debt, the trustee's obligation will not be extinguished but will be converted into a natural obligation.