판례평석(判例評釋) : 부동산신탁회사의 자금관리에 관한 법률적 쟁점- 대법원 2011. 6. 10. 선고 2011다18482 판결을 중심으로 -

부동산신탁회사의 자금 조달과 관리에 관한 법률 쟁점을 분석했다.

As real estate trust companies become larger in size and begin managing multiple trusts, these companies confront the problem of how to finance and manage funds. Most trust companies do not raise funds each and every time one of many managing trust needs operational funding. Rather, companies predict the total demand of all the trusts in the long-run, and finance according to the combined demand. In that process, funds from different origins must be managed under trust companies`` own account. Afterwards, when each trust needs operational financing, loans are made from own account to the trust accounts.

Trust companies usually require rate higher than the market interest rate as a compensation for this loan. Such method is much more convenient for beneficiaries. Also, as larger the funding gets, the cost of funding decreases. As a result, even with extra interest rate, beneficiaries can benefit from such economies of scale. Understanding the practical necessity, financial regulators have made guidelines that seem to allow self-dealing in some cases. However, such loans may violate the duty of loyalty and if the court rules such loans voidable, wether and to what extent can such loans be reimbursed as expenses are largely under question. 2011. 6. 10.

sentenced, the Supreme Court of Korea ruling 2011DA8482 deals with many issues related to the financing and managing of funds of real estate trust companies. Because this ruling is based on the former Trust Act and Trust Business Act, conclusions may change under the current trust related acts. This paper will first take a look at the conclusions of this ruling, and assess wether such conclusions can hold under the current trust related acts, and then examine the plausibility of the court``s conclusions.

The court``s decision writes that according to the article 31 of the former Trust Act, which enacts the duty of loyalty of a trustee, the loan from trust``s own account to trust account is voidable. Past studies and court decisions agree that despite being profitable to the beneficiaries, all actions by trustee that violate the duty of loyalty is voidable. However, the newly enacted Trust Act specifies the situations where duty of loyalty might be violated and as a result, the article is no longer considered as a compulsory provision. Also, the new Financial Investment Services and Capital Markets Act have included exception clauses that allow the trust companies from self-dealing.

Thus, currently, if all the conditions under the exception clauses are met, loans between trust accounts are valid. Full factual details are not provided in the written judgement so wether this case meets all the exception conditions is not clear. However, even when such loan becomes voidable, a trustee can seek a refund via reimbursement of expenses clause. The court ruling says that if the origin of the fund being loaned comes from outside sources, the principle and the interest rate according to the open market rate is refundable. The court``s decision is mostly agreeable. However, few things are left unanswered.

First of all, the court does not provide any reasoning in dismissing the request for additional interest rate above the market rate. Therefore, uncertainties regarding the range of interest refundable still exist. Secondly, the court distinguishes trust``s own fund and the fund financed from outside sources but both sources of funds are managed under one audit account so the possibility of misunderstanding still exists. However, this decision does clarify that the market rate is the interest rate on funds from outside sources and for the trust``s own fund, further verification is necessary in order to receive interest.

A few legal issues on financing and managing of funds of real estate trust companies are still open to discussions and harmonic interpretation of related laws is necessary at this point.