부동산 담보신탁의 우선수익권에 대한 소고 대법원 2017. 6. 22. 선고 2014다225809 전원합의체 판결에 대한 비판적 검토

부동산 담보신탁에서 우선수익권의 법적 성격을 검토했다.

Real estate collateral trust is only a form of real estate trust and basic structures of all forms of real estate trust use the form of trust under the trust law in which a trustor internally and externally transfers all of his/her rights for related real estate to the trustee.

Specific differences based on each trust form is determined according to the purpose of the trust established by the trustor and the contents of trust contract agreed by the trustor and the trustee based on the purpose of the trust, and the contents of the trust contract are recorded in the original book of trust attached to certified real estate register and become a part of registration record to have the same force as the registration itself.

Therefore, the ground on which The Real estate collateral trust has the legal force similar to right to collateral security derives not from the original attributes of the real estate trust or favored beneficiary right but from the trust contract signed by the trustor and trustee. In addition, favored beneficiary right in real estate trust is the same concept as beneficiary right and its legal property, on principle, is based on beneficiary right. Thus, as far as beneficiary right is recognized as an independent right in trust law, favored beneficiary right based beneficiary right is recognized as another independent right as well.

Yet, as detailed contents of the favored beneficiary right are also determined by the trust contract, contents and forces of the favored beneficiary right in real estate collateral trust must be judged in each trust by focusing on the interpretation of the contents of the trust contract in accordance with the purpose which the trustor established. That is, if collateral attribute was granted to favored beneficiary right by the trust contract agreed by both the trustor and the trustee, independence of the individual favored beneficiary right should be denied to the same extent.

In particular, considering the purpose of the trustor who established the real estate collateral trust and the contents of the trust contract agreed in the case in question, Supreme Court en banc decision is judged to have neglected review on contents by inclining toward validity of the decision and, ultimately, the plaintiff must have had established not only favored beneficiary right but right of pledge for the loan receivable or established a collateral trust in the form of the defendant as trustor signing a contract in which the debtor becomes a participant, creditor becomes plaintiff and trustee becomes defendant by entrusting the area of land secured in recompense of development outlay to the trust company with a view to guaranteeing secured mortgage for the obligation of the participant and the plaintiff acquiring favored beneficiary right for the collateral trust in question.

Thus, it is deemed unreasonable for the defendant as trustor to run the risk of taking the responsibility of double payment and rational for the plaintiff to run the risk instead for acquiring an incomplete security. In this respect, while Supreme Court en banc decision can be evaluated as positive as it is a declaratory decision for the independence of favored beneficiary right, it still deplorably lack validity for the solution of the individual case by excessively inclining toward principle itself of the favored beneficiary right.