不動産擔保信託에 관한 硏究

부동산담보신탁의 법적 구조와 실무상 쟁점을 연구했다.

Since the early 90s, as the substantial development of real estate and Social Overhead Capital (SOC) launched, the collateral trust of real estate has been combined and used with project finance. Although there has been the existing conventional mortgage system, there are manifold reasons why the collateral trust of real estate has been highlighted and widespread in practical business deals. In particular, it can be viewed that there is that powerful collateral function. In case of the collateral trust, along with the trusted real estate, the flow of cash that occurs in business can be secured as collateral.

Besides, under the certain conditions, it can meet the effect of the bankruptcy remoteness, which makes it possible to secure the even more stable receivables. However, in spite of the trend that the collateral trust of real estate is widely used in everyday business affairs, it still leaves much to be desired in terms of law at the moment. Unlike France, it is because our law system has not yet set the detailed laws in place with respect to the collateral trust. Even so, the recent verdicts of the Supreme Court reveal the viewpoint for legal issues of the collateral trust and suggest the new judging standard for some controversial issues.

Therefore, to review related rulings has significant meanings to form the principles of laws of the collateral trust and to make them more organized. Hence, the objective of this paper is to review the rulings of the Supreme Court for the discussion of the controversial issues on the collateral trust. This paper scrutinizes certain views and measures to solve certain complication and see whether such views or measures satisfy the direction of the principles of the law for the collateral trust.

Firstly, a perspective that tries to focus on the substance of the collateral functions of the collateral trust and to understand the beneficiary right of the collateral trust as a security interest was predominant pertaining to the legal properties of the beneficiary right in the collateral trust. However. in finding out the collateral trust, it is supposed that it is irrational to approach in terms of the security interest. The purpose of establishing the collateral trust is to secure the collateral. In reality, the collateral does show some notable impact, but it is the effects entailed by employing trust.

It cannot be viewed as collateral with no strings attached even though there appears the effect of the collateral. What is more, the deed of trust in the US is considered as a mortgage with a power of sale, but this cannot be the reference under our law system. According to the numerus clausus principle, which is the major principle of the civil law, the collateral trust cannot be considered as a security interest for certain. Thus, in figuring out the controversial issues linked to the beneficiary right in the collateral trust, it should be seen in such a way that this is the right on the trust contract to settle such matters. The judicial precedents stand in line with this standpoint.

Considering the premise, whether to consider its concomitant nature and appendant nature of the beneficiary right is a problem of interpretation of the contract. For the settlement methods of the trust property proceed of public sale, it should be likewise resolved by the interpretation of the trust contract instead of analogical application from the regulations or attitude of the precedents for the joint mortgage in the civil law. Secondly, as for the bankruptcy remoteness of the collateral trust, there are the positive viewpoint and the negative viewpoint on this matter.

The rulings of the Supreme Court judge that the beneficiary right in which the creditors have in the rehabilitation procedure of a trustor in the collateral trust is not influenced by the rehabilitation plan, and approve the bankruptcy remoteness. In case of the approach of the trust of others interest, the beneficiary right belongs to beneficiaries in the first place. On account of the fact that the collateral trust and the yangdo-dambo (security right created by transferring the legal title of the collateral to a creditor) are different in terms of structure, it is valid to acknowledge the bankruptcy remoteness.

Yet after applying the approach of the trust of own interest, in case that the beneficiary right is transferred or a pledge right is established on the beneficiary right, since the beneficiary right belongs to a trustor in the first place, the bankruptcy remoteness must be denied. Thirdly, for conflicts between the interested parties of the collateral trust over individual issues, the Supreme Court denies the buyer’s return requests of the payment of housing purchase against the trust company after the contract cancelled regardless of the direct requests or indirect requests all together.

Apart from this case, based on the collateral trust, even if the sports facilities are sold, the Supreme Court claims in the ruling that the buyer is liable for the debt to return the membership deposit to members. In these cases, it is deemed that to pursue the balanced interests between the interested parties, it is required to suggest the specific solutions along with more in-depth discussion. 부동산담보신탁은 1990년대 초반 이후 본격적인 부동산개발 및 사회간접자본(SOC) 사업이 개시되면서 프로젝트 파이낸싱(Project Financing, 이른바 PF대출)과 결합하여 활용되어 왔다. 기존의 전통적인 담보제도가 있음에도 불구하고 실무 거래계에서 부동산담보신탁에 주목하기 시작한 이유는 여러 가지가 있지만 특히 그 강력한 담보기능에 있다고 할 수 있다. 담보신탁에 의할 경우 신탁부동산뿐만 아니라 사업상 발생하는 현금흐름도 담보로 삼을 수 있고, 나아가 일정 요건 하에서는 도산절연효과까지 누릴 수 있어 보다

안정적인 채권확보가 가능하기 때문이다. 그러나 부동산담보신탁은 실무상 널리 활용되고 있는 것에 비해 법률상 미흡한 측면이 적지 않다. 이는 우리 법제가 프랑스와 달리 담보신탁에 관한 구체적인 법률을 마련해두고 있지 않기 때문이다. 한편 최근 선고된 대법원 판결들은 담보신탁의 법적 쟁점에 대한 입장을 밝히고 일부 쟁점에 대한 새로운 판단 기준을 제시하였다. 그러므로 관련 판결들을 검토해보는 것은 담보신탁의 법리를 형성하고 더욱 정치하게 만드는 데 있어서 의미가 적지 않다. 따라서 본 논문에서는 담보신탁의 여러 쟁점에 대한 논의를 대법원 판결을 중심으로 검토하면서 과연 어떠한 견해 내지 해결방안이 담보신탁 법리의 방향에 부합하는지 고찰하고자 하였다. 첫째, 담보신탁에서의 수익권의 법적 성질과 관련하여 종래에는 담보신탁의 담보적 기능이라는 실질에만 주목하여 담보신탁의 수익