[수익금][공2016상,553]
[1] Purport of recognizing the waiver of the right to benefit under Article 51(3) of the former Trust Act, and in the case of the so-called self-profit trust in which the truster becomes the beneficiary under the trust contract, whether the truster and the beneficiary may be exempted from the obligation to reimburse expenses already incurred by the waiver of the right to benefit (negative)
[2] The case where the exercise of the trustee's right to demand reimbursement can be restricted in the land development trust
[1] The purport of recognizing the waiver of the right to benefit under Article 51(3) of the former Trust Act (wholly amended by Act No. 10924, Jul. 25, 2011; hereinafter the same) lies in preventing a beneficiary from being forced to acquire the right to benefit against his/her own will, since the beneficiary is obligated to reimburse expenses pursuant to Article 42(2) of the former Trust Act. Therefore, in cases of the so-called self-profit trust in which a truster becomes a beneficiary under a trust agreement, the truster and the beneficiary intend to form a trust relationship and designate himself/herself as a beneficiary at the stage of establishing the trust, and thus, the truster and the beneficiary are required to bear not only the profit accrued from the trust but also the loss, and there is no need to exempt the truster and the beneficiary from the obligation to reimburse expenses through waiver of the right to benefit. Therefore, even if the truster and the beneficiary waive the right to benefit under a self-profit trust, the truster cannot be exempt from the obligation to reimburse
[2] Since land development trust is carried out for a long period of time and it is not easy to predict the real estate competition, large-scale losses may occur depending on circumstances. If a trustee is paid a fee as an expert operating real estate trust business, and the trust business is terminated without achieving the purpose of the trust business due to unexpected changes in economic conditions, and the truster or beneficiary bears a huge burden on the truster or beneficiary due to the failure to fulfill the purpose of the trust business, the trustee’s exercise of the right to claim reimbursement of expenses may be restricted to the extent deemed reasonable from the perspective of the good faith principle and the sharing of damages, taking into account such circumstances.
[1] Article 42(2) (see current Article 46(4) and (5) of the former Trust Act (wholly amended by Act No. 10924, Jul. 25, 201); Article 42(3) (see current Article 46(4) and (5)); Article 51(3) (see current Article 75) of the former Trust Act / [2] Article 42 of the former Trust Act (wholly amended by Act No. 10924, Jul. 25, 201); Article 2 of the Civil Act
[2] Supreme Court Decision 2006Da7532, 7549 Decided March 27, 2008
The Korea Land and Housing Corporation (Law Firm Square et al., Counsel for the plaintiff-appellant)
Korea Land Trust Co., Ltd. (Law Firm Sejong and one other, Counsel for the plaintiff-appellant)
Seoul High Court Decision 2010Na84835 decided February 2, 2012
All appeals are dismissed. The costs of appeal are assessed against each party.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. As to the Defendant’s ground of appeal on the Plaintiff’s ground of appeal and the validity of waiver of right to benefit
According to Article 42(2) of the former Trust Act (wholly amended by Act No. 10924, Jul. 25, 2011; hereinafter the same), a trustee may require the beneficiary to claim compensation for taxes, public charges, other expenses, and interest incurred in relation to the trust property, or to provide adequate security to the beneficiary to perform the trust affairs. Meanwhile, Article 51(3) of the former Trust Act provides that the beneficiary may waive his/her right to benefit, and Article 42(3) provides that Article 42(2) shall not apply where the beneficiary renounces his/her right to benefit.
However, the purport of recognizing the waiver of the right to benefit of Article 51(3) of the former Trust Act is to ensure that the beneficiary is not forced to acquire the right to benefit against his/her own will, as the beneficiary is obligated to reimburse expenses pursuant to Article 42(2) of the former Trust Act. Therefore, in cases of the so-called self-profit trust in which the truster becomes a beneficiary under the trust agreement, the truster and the beneficiary are a person who intends to obtain profits by forming a trust relationship and designating himself/herself as the beneficiary at the stage of establishing the trust, and thus, the truster and the beneficiary are required to bear not only the profits arising from the trust, but also losses, and not to exempt the truster and the beneficiary from the obligation to reimburse expenses through waiver of the right to benefit. Therefore, it is reasonable to deem that the truster and the beneficiary cannot be exempt from the obligation to reimburse expenses already incurred
Although the reasoning of the lower court did not contain improper points, the lower court’s conclusion is justifiable to have determined that the Plaintiff’s obligation to reimburse expenses to the Defendant pursuant to the land trust agreement of December 27, 1996 (hereinafter “pre-sale trust agreement”) was not extinguished due to the waiver of the Plaintiff’s right to benefit. In so doing, it did not err by misapprehending the legal doctrine on the validity of the waiver of the right to benefit, thereby adversely affecting the conclusion
2. As to the Defendant’s remaining grounds of appeal
(1) As to the ground of appeal on the right to claim settlement following the reversion of trust property
The lower court rejected the Defendant’s assertion that, in the case of the preceding trust agreement, Article 22 of the former Trust Act provides for the right holder to whom the trust property reverts, Article 60 of the former Trust Act does not apply, and even if Article 60 of the former Trust Act applies to the preceding trust agreement, the expenses incurred in the trust business pursuant to the preceding trust agreement are merely obligations owed by the beneficiary to the trustee, and thus does not constitute trust property.
In light of the relevant legal principles and records, the above determination by the court below is justifiable. In so doing, it did not err by misapprehending the legal principles on Article 60 of the former Trust Act or the scope of trust property
(2) As to the ground of appeal on disposal of unsold quantity after termination of the trust contract
The court below held that the defendant's disposal of unsold quantity after the termination of the preceding trust contract was a exercise of the defendant's right to self-help sale in accordance with Article 16 of the preceding trust contract, which provided that the trustee may exercise his right to self-help sale by means of receiving compensation for expenses even after the termination of the trust contract, and thus does not constitute the performance of trust affairs. Thus, the defendant cannot claim against
In light of the relevant legal principles and records, the above determination by the court below is justifiable. In so doing, it did not err by misapprehending the legal principles on the requirements for exercising self-help right.
(3) As to the ground of appeal on limiting the exercise of the right to claim reimbursement
Land development trust may cause a large-scale loss depending on circumstances, where it is difficult to undertake a project over a long period of time and forecast real estate competition. If it is acknowledged that the trustee is an expert who runs real estate trust business with discretion based on expertise and discretion, and the trust business is terminated without achieving the purpose of the trust business due to unexpected changes in the economic situation, and the truster or beneficiary bears a huge burden on the truster or beneficiary, the trustee’s exercise of the trustee’s right to claim reimbursement of expenses may be restricted to the extent deemed reasonable from the perspective of the good faith principle and the sharing of damages, taking into account such circumstances (see Supreme Court Decision 2006Da7532, 7549, Mar. 27, 2008).
The lower court determined that it is reasonable to limit the Defendant’s exercise of the right to claim reimbursement of expenses to 60% on the ground of the good faith principle and the fair apportionment of damages, taking into account the following: (a) the Defendant, a trustee, as an expert in real estate trust business, was paid a remuneration from the Plaintiff; (b) the trust business under the preceding trust agreement remains in unsold quantity even after the expiration of the trust period due to the so-called IMO foreign exchange crisis; (c) the public sale of the trust proceeds; and (d) the Defendant was actually paid approximately KRW 2.5 billion with trust fees under the preceding trust agreement.
In light of the above legal principles and records, the above determination by the court below is justifiable. In so doing, it did not err by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the good faith principle and the principle of fairness.
3. Conclusion
Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Sang-hoon (Presiding Justice)