위탁자의 신탁부동산에 대한 소유권이전등기청구권 = Settlor’s right to claim the registration of transfer of ownership on trust property

담보신탁 부동산에서 위탁자의 소유권이전등기청구권을 검토한다.

Under the collateral trust the trust property is disposed according to the terms of trust and then the party concerned has the right to claim the registration of transfer of ownership. When the settlor has a remainder, he can have the right as an beneficiary. But his right arises only if the debtor discharges the outstanding balance on the loan to the superior beneficiaries, the creditors. The compulsory execution against this future conditional right and the provisional disposition with regard to it is possible. But the feasibility depends on whether the debtor discharges his obligation or not.

However in all the other cases the settlor does not have the right, so the disposition of trust property itself is irrelevant to his property(‘patrimoine’) and his creditors. When the collateral trust is settled in connection with real estate development business and the settlor as a developer enters into a sale contract regarding the real estate belonging to the trust property, he is authorized to dispose under the terms of trust. The trustee is now under an obligation to transfer the ownership registration to the buyer, because he is the legal owner of the real estate, not the party of the sale contract. The ownership of the real estate transfers directly from the trustee to the buyer.

In this instance the settlor does not have the right to claim the registration of transfer of ownership which belongs to his property. This kind of disposition corresponds to the terms of trust and should be regarded as if the trustee himself disposed it. While it is the proper administration of trust and the trust property separates from the trustee’s own as well as settlor’s, there is no reason that the trustee is liable for torts against the creditors of settlor.