[2] The case holding that it is difficult to expect the right to be preserved for the above provisional disposition as long as the procedure for disposal of the real estate held in a trust has been commenced in accordance with the trust contract for recovery of the beneficiary's claim, in case where the truster's creditor filed a provisional disposition against the prohibition of disposal with the right to claim the return of

According to the reasoning of the order of the court below, in full view of the admitted evidence, the court below acknowledged that the trustee is able to preserve and manage the trusted real estate and liquidate it to the truster if it is impossible for the trustee to actually occupy and use the trusted real estate and bear all the expenses incurred therefrom on March 31, 2003 to the termination of the claims of the first beneficiary. The first beneficiary is 4 loan banks for non-appeal 1 corporation including Korea Mutual Savings Bank, and the first beneficiary is 1 corporation under the Real Estate Security Trust Contract for non-appeal 1 corporation. Under the trust contract of this case, the ownership transfer registration for non-appeal 1 corporation is completed in the future on the trust. According to the trust contract of this case, the purpose of the trust of this case is to preserve and manage the trusted real estate and to guarantee the truster's liabilities or liabilities for the transfer of the trusted real estate, and the truster is able to determine whether the trustee is able to exercise the right of the trust property before the expiration of the trust contract or the expiration of the trust contract of this case without the expiration of the trust contract.

Based on the above facts, the court below decided that in order to preserve the right to claim the transfer registration of ownership against non-Appellant 1 and non-Appellant 2 on the real estate of this case, upon the termination of the trust contract of this case, the application of this case seeking the provisional disposition of prohibition of disposal on the ground that non-Appellant 1 corporation is the right to claim the execution of the transfer registration procedure of ownership on the real estate of this case on the ground that the future trust contract is terminated due to the termination of the trust contract in accordance with Articles 5 and 60 of the Trust Act and the trust contract of this case, the non-Appellant 1 corporation has the right to claim against the debtor for the execution of the transfer registration procedure of ownership on the ground of this case, and such future conditional and burden claim can also become the preserved right of provisional disposition. Accordingly, the application of provisional disposition of this case is proved as to the preserved right, and further, it is necessary to preserve it in order to prevent the debtor from disposing of the real estate of this case on the ground that the debtor after the termination of the trust contract of this case.

First, trust property under the Trust Act has an independent character distinct from its own property even when it reverts to a trustee. Thus, in principle, compulsory execution or auction is prohibited pursuant to the main sentence of Article 21(1) of the Trust Act. However, it is difficult to exceptionally enforce compulsory execution only when the right arising prior to the trust or the right arising in the course of performing trust affairs is based on the proviso. However, the right to be preserved for the provisional disposition of this case is subject to the right to claim ownership transfer registration of the trust real estate returned from the trustee when the trust relationship is legally resolved due to the occurrence of the cause for termination of trust stipulated in the trust agreement based on the premise that the trust relationship of this case is established. Thus, it does not conflict with the establishment and maintenance of trust relationship under the trust agreement of this case and the performance of trust affairs. Accordingly, the provisional disposition of this case does not constitute a preservative measure of compulsory execution against the trust real estate itself as stipulated in the main sentence of Article 21(1) of the Trust Act, which infringes on the rights of the beneficiary or trustee, or independence of the trust real estate under the trust agreement.

However, according to the facts established by the court below and the record, the debtor started a public sale procedure of the trusted real estate as the exercise of the right of priority beneficiary under Articles 18 and 19 of the Trust Contract as a result of the non-appeal of loan obligations against the priority beneficiary of the non-party 1 corporation, but in the case of the real estate in this case, due to a provisional disposition registration, the public sale procedure has not been commenced, and in the case of the real estate in this case, in order to recover the loan claims of the priority beneficiary, the disposal price is paid and settled to the beneficiary (the truster if there is no beneficiary) only if there is a balance after the trust agreement related expenses and the compensation obligation and the priority claim are repaid to the priority beneficiary. If there is a circumstance, the right to request the return of the trusted real estate based on the termination of the trust contract, which is the right of preservation in this case, is arising from the termination of the trust contract due to the expiration of the trust period due to the extinguishment of the beneficiary's claim and the truster's right to request the return of the trust claim against the priority beneficiary.

Thus, the application for provisional disposition of this case is not sufficient to prove the future occurrence of the preserved right or the necessity for preservation. This does not change because the validity of the debtor's act of disposal of this case, which is a legitimate exercise of right as stipulated in the trust contract, is not affected by law, notwithstanding the registration of provisional disposition of this case.

Nevertheless, the court below erred by misapprehending the legal principles on the right to be preserved and the necessity of preserving the right to the provisional disposition of this case and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

The ground of reappeal pointing this out has merit.

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)