부동산 담보신탁의 도산절연에 관한 연구 -대법원 2018. 10. 18. 선고 2016다220143 판결-

부동산 담보신탁 재산의 도산절연 여부를 연구했다.

The existing precedents of the Supreme Court have consistently supported the remoteness from bankruptcy cases of truster and trustee as the ownership is universally and completely transferred to the trustee in the real estate collateral trust. In bankruptcy cases, a debtor’s property is protected by the Debtor Rehabilitation and Bankruptcy Act. Regarding the trust property, however, it could be forcibly executed by a trust creditor without being protected by the ‘bankruptcy remoteness effect’, which causes damages to the interested parties who aim to enjoy the independence which is the characteristic legal effect of trust property.

Contrary to the existing precedents acknowledging the bankruptcy remoteness effect, the relevant ruling explained that the bankruptcy remoteness effect could not be acknowledged depending on each case by applying the concept of actual ownership. The relevant ruling could obtain not only positive evaluation because the disposition of a truster’s property by the bankruptcy remoteness effect could be prevented, but also criticism because the logic of supporting different judgments on each individual case of collateral trust could bring about confusion in the collateral trust market with the rapid increase of its use.

As the real estate collateral trust is utilized as a means of financing by large-scale real estate development projects, it is limited to fully depend on the theory of interpretation or the position of precedents for bankruptcy remoteness effect simply because the size of fund is large and there are many interested parties. Due to negative examples such as a truster who used the collateral trust by expecting the bankruptcy remoteness effect, is led to the state of inability to rehabilitate, it would be necessary to be limited as provisions such as commercial law, trust act, and bankruptcy act in the aspect of legal safety.

Especially, considering the rules of trustee’s bankruptcy and trust property in the Article 24 of the Trust Act, there should be the legislation limiting the bankruptcy remoteness effect of collateral trust in the Trust Act. The theoretical basis of it is as follows. First, despite the act of creating a trust, the fault of the trust property is owned by the truster, so that there would be no logical problems to treat it as the truster’s property. Second, there is no foreign country that acknowledges the bankruptcy remoteness effect of trust besides Korea. Third, in case when depending on precedents only, the legal stability could be damaged.

Fourth, in rehabilitation cases, the court is actually treating the trust property as a truster’s property. Fifth, the collateral trust is the same with the transfer security in the aspect of function. Sixth, a debtor who is a truster could face the state of inability to rehabilitate. Seventh, in the relevant ruling, the Supreme Court said that the bankruptcy remoteness effect could be limited by considering the actual function of collateral trust.