[1] The case holding that a trust company under a real estate trust agreement shall be selected as an insolvent construction company, and a large amount of advance payment of construction works shall be paid in lump sum without any measures for securing claims, even though it is aware that the above construction company will use such advance payment for a purpose unrelated to the trust business, and where its officers and employees were detained in relation to the above advance payment and the trust business is not carried out due to the failure of the construction company to pay the advance payment, the trust business shall be held liable for performing the trust contract

[2] The case holding that the provision that the trust contract shall not be terminated when losses are remaining from the trust proceeds under the real estate trust contract shall be interpreted to settle the profits and losses at the time of termination of the contract

[3] A person who bears expenses incurred by a real estate trustee company in purchasing investment certificates issued by a housing mutual aid association, which is essential to carry out a trust business (=a truster)

[1] The case holding that a trust company under a real estate trust agreement shall be selected as an insolvent construction company, and a large amount of advance payment of construction works shall be paid in lump sum without any measures for securing claims, even though it is aware that the above construction company will use such advance payment for a purpose unrelated to the trust business, and where its officers and employees were detained in relation to the above advance payment before the commencement of the construction business, and the trust business is not carried out due to the failure to implement the trust contract, the trust business shall be held as a trustee company.

[2] The case interpreting the provision that a trust contract shall not be terminated when a loss is remaining from the trust proceeds under the real estate trust contract, to the effect that the trust contract shall not be terminated if a loss remains due to the trust by restricting the termination of the contract by the truster, not to the purport that the contract may not be terminated but to settle the profits and losses when the contract is terminated

[3] The expenses incurred by a real estate trustee company in purchasing investment certificates from the Housing Financial Cooperative, which is a trust business, are subject to settlement following the termination of the trust contract even if the trustee company holds the investment certificates.

[1] Articles 544 and 681 of the Civil Act / [2] Article 105 of the Civil Act / [3] Article 688 of the Civil Act, Article 42 of the Trust Act

[3] Supreme Court Decision 97Da3828 delivered on June 27, 1997 (Gong1997Ha, 2334)

Pungsan Housing Co., Ltd. (Attorney Kim-sung, Counsel for the plaintiff-appellant)

Defendant Co., Ltd. (Attorney Kim Young-soo, Counsel for defendant-appellant)

August 18, 1999

1. The defendant received KRW 1,553,323,870 from the plaintiff, and simultaneously received KRW 1,553,323,870 to the plaintiff, based on the ground for termination of the trust as of September 9, 1998, and implement the registration procedure for transfer of ownership.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 10% is borne by the Plaintiff, and 90% is borne by the Defendant, respectively.

The defendant, on the real estate listed in the attached list, ordered the plaintiff to implement the registration procedure for the transfer of ownership by taking the ground for the termination of the trust as of September 9, 1998.

1. Conclusion and termination of a trust contract;

A. Facts of recognition

[Evidence: Statement of Evidence Nos. 1 through 5, 9, 10, 13 through 18, 20, 1 (the same shall apply to the evidence No. 10), 16 (the same shall apply to the evidence No. 10-3), 29 (the same shall apply to the evidence No. 10-6), 37, and 1 and No. 7)

(1) On December 19, 196, the Plaintiff and the Defendant agreed as follows when entering into a trust agreement with the Plaintiff and the beneficiary on the real estate listed in the separate sheet owned by the Plaintiff (hereinafter “instant real estate”).

(A) The purpose of the trust is to construct and sell the instant real estate with the two underground floors and 477 apartment units of 8th floor above the instant real estate as the property of trust by taking the relevant land and buildings as the property of trust.

(B) The period of trust shall not exceed five years until the obligations and expenses incurred in the instant trust agreement and the trust remuneration are repaid.

(C) The Defendant shall select a construction company to construct apartment buildings. However, if the Plaintiff so recommends, it may be considered. The Defendant shall consult with the Plaintiff in advance with respect to the contract amount of construction work, the payment method of construction cost, the construction period, and other important matters.

(D) The term "trust property" is defined as follows: ① Trust property and trust money, ② Sale price of trust real estate (including contract money and intermediate payment), ③ Lease deposit for trust real estate, ④ Property acquired by real subrogation of trust real estate, ⑤ Management profit of money belonging to the above ① to ④ Management profit of money belonging to the trust real estate, ② Repayment of borrowed money and deposits acquired by sale of trust real estate, and 7 Other assets and liabilities arising from management of trust affairs.

(E) The following “the cost” is borne by the beneficiary:

(1) Taxes, public charges, registration expenses, expenses for design, supervision, construction costs, ③ repayment of loans, rent deposits, etc. and interest thereon; ④ Expenses incurred in repairing, preserving, and improving trust real estate; ⑤ Fire insurance premiums; ⑤ Expenses incurred in handling affairs of sale in lots, and other expenses incurred in performing affairs of trust.

(f) Upon termination of the trust, the trustee shall prepare a trust account statement and submit it to the beneficiary, and at this time the trust income shall be the amount calculated by subtracting the “expenses” from the “trust property” and the “trust remuneration.”

(G) No trust contract may be terminated when any loss is remaining from the trust proceeds.

(2) On December 24, 1996, the Defendant completed the registration of the transfer of ownership on the instant real estate as the cause of the instant trust agreement. At the time, on July 5, 1996, the registration of the establishment of the right to collateral security (right to collateral security (right to collateral security), the same-sex Co., Ltd., Ltd., and the maximum amount of claims, and the maximum amount of claims (right to collateral security) was completed.

(3) On December 24, 1996, the Defendant concluded a new construction contract with the non-party 1 company for the construction project under the instant trust agreement (hereinafter referred to as the “trust project”). Around December 24, 1996, upon recommendation of the Plaintiff, the Defendant concluded a new construction contract with the non-party 1 company for the construction cost of KRW 30,767,928,00, and the construction cost of KRW 36 months from the commencement date of the construction project, and agreed to pay KRW 15 billion in advance of the construction cost.

(4) On December 26, 1996, the defendant paid 15 billion won to the non-party 1 company in accordance with the above agreement. The payment of the construction advance was made by the non-party 2 corporation including the non-party 1 company at the time, and the non-party 3, the chairman of the so-called (name omitted) group of the central mutual savings and finance company, etc. from January 1, 1994 to July 1995, was investigated by the prosecutor's office about the suspected illegal loan of 110 billion won from the above credit cooperative, and was the location where the above illegal loan was to be promptly repaid. The non-party 1 company is the de facto manager of the non-party 1 company and the non-party 4, the non-party 3's partner, the representative director of the defendant, and the non-party 6, the non-party 5 executive director of the central mutual savings and finance company, etc. at the time of using it for the emergency fund of the group.

(5) In addition, according to the Rules of the Ministry of Finance and Economy, which the defendant was under the practice at the time, to pay advance payment, the defendant was required to receive securities or guarantees equivalent to the start-up date or advance payment from the contractor to secure claims, and when it is apparent that the commencement of the contract will have been delayed for a considerable period after the conclusion of the contract, the advance payment should be limited. The non-party 1 was a company which did not receive a guarantee due to the lack of the amount of investment from the Housing Mutual Aid Association. At the time, it was obvious that the commencement of the contract would not have been delayed for a considerable period because all the procedures required for the report on the commencement of the contract were not prepared at the time, and the security or guarantee provided to the company affiliated with the Group and its officers are considerably lacking in value of the security. Accordingly, the defendant would not make advance payment to the non-party 1 company or paid the advance payment under the above provisions at least after the commencement of the construction project.

(6) Meanwhile, the Plaintiff prepared the instant trust business as follows.

(A) On February 28, 1997, after obtaining approval of a housing construction project plan from the mayor of Gangseo-gu, the Minister of Land, Infrastructure and Transport obtained approval of a change in the housing construction project plan, the purpose of which is to change the square, decrease the number of households, etc. on September 5, 199 of the same year, and obtained approval of a change in the housing construction project plan for the purpose of increasing the project cost and changing the project period.

(B) On December 21, 1996, with respect to Non-Party 1, the registration of establishment of each right to collateral security on the instant real estate was cancelled on June 18, 1997 with respect to same-sex corporation.

(C) From around 1995, there was a dispute over access roads and farming roads, new companies, new companies, and new industry and passage roads, which purchased the instant real estate. On October 19, 195, the above companies obtained permission for the use of land from the above companies on and around July 19, 197, but the permission for the installation of private roads on access roads was also granted at Chicago-si. However, the above companies continued to control and control the access roads, and the problem of the construction of access roads was not resolved.

(7) Around March 1998, Nonparty 1 Company was in default, and executives and employees, including the Defendant’s representative director, were detained on charges of breach of trust due to the Defendant’s wrongful payment of advance payment to Nonparty 1 Company on June 1998.

(8) On September 9, 1998, the Plaintiff notified the Defendant that the instant trust contract will be terminated.

B. Determination

(1) The term “trust” means a legal relationship in which a truster transfers or disposes of a specific property right to a trustee based on a special trust relationship with the truster and the trustee, and has the trustee manage or dispose of such property right for the benefit of the beneficiary or for a specific purpose (Article 1(2) of the Trust Act), and the trustee shall manage or dispose of the trust property with the care of a good manager in accordance with the principal place of the trust (Article 28 of the Trust Act).

As to the instant case, the Defendant, the trustee, acquired the ownership of the instant real estate from the Plaintiff, the trustr and the beneficiary, and entered into a trust agreement to transfer the remainder after deducting the construction cost, trust fee, etc. by selling the relevant land and building to the beneficiary by selling the apartment above.

If the meaning of the trust under the Trust Act and the purpose of the instant trust agreement are the same as above, the Defendant, who is the trustee, has a duty to properly manage the affairs concerning the selection of the apartment contractor, the execution of funds, and the progress of all kinds of authorization and permission procedures, in accordance with the principal place of the trust.

However, according to the facts found above, if the defendant was selected as the contractor of the apartment of this case with poor business management and financial structure, it was recognized that the non-party 1 was bound by the charge of breach of trust, etc. due to the defendant's failure to pay advance payment to the non-party 1 on June 1998, when the non-party 1 was aware that the non-party 1 would use the advance payment for the purpose unrelated to the trust business of this case, without any measures to secure claims, and paid a large amount of 15 billion won as advance payment to the non-party 1, who entered into a contract with the non-party 1. The non-party 1 was paid as a lump sum in this case. The non-party 1 was found to have not run the trust business of this case even after the non-party 1 was insolvent and the apartment construction was not commenced on June 1998.

Therefore, the Defendant cannot be deemed to have fulfilled the fiduciary duty required for the trustee while implementing the instant trust contract, and since the Defendant’s representative director, etc. was detained, it was practically impossible to perform the instant trust project. Accordingly, the Defendant is liable for nonperformance of the instant trust contract. (In the event the Plaintiff did not cancel the registration of the establishment of the right to collateral security established on the instant real estate even after entering into the instant trust contract, the Defendant changed the business plan on two occasions, and the instant trust project could no longer proceed due to the failure to settle the dispute arising from the establishment of access roads. Therefore, the Defendant asserted that the Plaintiff was liable for nonperformance of the instant trust contract. However, the Defendant asserted that the registration of the establishment of the right to collateral security was cancelled by June 18, 197. The Defendant’s other business asserted by the Defendant should be held liable for the Defendant’s business as the trustee mainly, and even if the above business is to be held on the responsibility of the Plaintiffs, the Defendant’s officers and employees were detained and employees were not able to perform the instant trust obligation from the date of detention.)

(2) According to the instant trust contract, the Defendant cannot terminate the contract when the loss remains, and the Plaintiff asserts that the instant trust contract may be terminated only after compensating the Defendant for the loss. However, this is interpreted to the effect that, rather than to make it impossible to terminate the contract in a case where a loss remains due to the trust by restricting the termination of the trust party’s contract, the Defendant would settle the profits and losses when the contract is terminated due to statutory or contractual reasons for termination.

(3) Therefore, since the instant trust agreement was lawfully terminated on September 9, 1998 by the Plaintiff, the Defendant is obligated to restore the real estate to its original state and implement the registration procedure for the transfer of ownership due to the termination of the above date trust.

2. Concurrent performance;

A. The defendant shall have a defense of simultaneous performance.

On the other hand, the defendant submitted a statement of the trust proceeds to the plaintiff at the time when the trust is terminated, and agreed that the trust contract cannot be terminated if the loss remains. As such, the original recovery following the termination of the trust contract of this case is the duty of the plaintiff to return the amount equivalent to the loss amount arising from the details of the trust funds by taking September 9, 1998, which is the termination date, to the defendant as the basic date. The plaintiff's obligation to return the amount of the loss and the obligation to return the ownership transfer registration of the defendant are simultaneously performed.

B. The details of the loss to be returned by the Plaintiff are as follows.

(1)In the absence of dispute

(A) Interest 8,243,343 of the revenue items

(b) Expenditure Items

(1) 220,00,000 won for the construction of model houses ( model houses) on June 12, 1998

② 29,675,060 Won 229,675,060,000,000 forest diversion charges on May 31, 1997 (Defendant is KRW 246,461,108)

However, according to the evidence Nos. 24-1 and 3, it is recognized that KRW 229,675,060 was paid).

(3) Multiple restorations, construction of national highways, deposit of supervision fees, guarantee fees, 16,786,048 won.

on October 1, 1997 8,580,000 won for appraisal fees paid to a corporation of a provisional appraisal.

(5) Charges for private roads of March 19, 198 (farmland creation costs and charges for the diversion of farmland) 5,413,700 won.

(6) Charges for the occupation and use of ditches of March 31, 1998: 5,152,200 won

(7) Total amount of revenue stamp revenue of June 17, 1997 and March 3, 1998, 981,000 won

total amount of KRW 536,58,008

(2) Items related to advance payment of construction costs

Upon the termination of a trust contract, the beneficiary or trustor shall return or incur loss and profit to be returned shall be funds executed in accordance with the principal place of the trust. However, as seen earlier, the Defendant, despite being aware that advance payment of construction expenses will be used for any purpose not related to the instant trust business, provided KRW 15 billion to Nonparty 1 Company with the provision and law. Accordingly, the advance payment of construction expenses cannot be deemed funds executed in accordance with the principal place of the instant trust, and thus, the items of advance payment of construction expenses, interest thereon, and additional tax refund amounts due to advance payment of construction expenses are excluded from the details of revenue following the termination of the instant trust contract.

The defendant selected the non-party 1 as the contractor and paid advance payment to the non-party 1 at the plaintiff's request. Therefore, this part of the relevant items should also be included in the details of the revenue and expenditure. However, even if the defendant, the trustee, obtained the consent of the plaintiff when the defendant, the trustee, was responsible for the selection of the contractor and the execution of the fund accordingly, it is nothing more than matters to be referred to the defendant while executing the above duties. Accordingly, this part of the

(3) The purchase price of investment securities by the Housing Financial Cooperative, the loans by the Housing Financial Cooperative and interest thereon;

According to Gap evidence 11, 12, Eul evidence 19, 19, 26, 32, 33-2, 4, and 36-2, 4, and 36, the defendant purchased 1,500 shares of investment in the Housing Mutual Aid Association on September 3, 1997 at KRW 1,680,00,000 and paid the price on November 19, 1997. Since the above amount was 261,106,285 won in total with the borrowed amount of the purchase price of the securities above (135,06,659 won on the above date + KRW 135,56,438 won on May 19, 199 + KRW 29,4888 on May 29, 198; and thus, the defendant accepted the above amount of interest on KRW 1,500 on each of the above securities as security and paid to the Housing Mutual Aid Association (hereinafter referred to as "Korea").

The Plaintiff asserts that the Defendant purchased the above-invested securities and used them for purposes not related to the instant trust business, such as using the loan received by the Defendant for alternative afforestation expenses and the use fees for ditches for the loan of construction expenses to Nonparty Company 1, and that the ownership of the invested securities belongs to the Defendant, and the securities belong to the Defendant, and the expenses paid in connection with the purchase of the invested securities are already repaid. Therefore, all relevant items should be excluded from the subject of settlement.

However, in full view of the Plaintiff’s assertion that the loan was used as a pre-payment of construction expenses, etc., and evidence No. 26-2 of the evidence No. 26-2, the implementer of the sales business can obtain approval from the permitting authority to secure the investment securities of the Housing Mutual Aid Association. The above securities can be acknowledged that the Housing Mutual Aid Association can increase or purchase only between the members at the time of other public sale and other public sale. As such, if the purchase of the above investment securities was essential for the execution of the trust business of this case, and it should not be secured at the time of the restriction on the purchase time or method, the purchase cost and the interest on this portion are all subject to settlement following the termination of the trust contract of this case. Thus, the Plaintiff’s above assertion is not accepted.

(4) Expenditure following the succession of the contractual obligation that the Plaintiff concluded.

According to the statements in Gap evidence 8, Eul evidence 19, 20 evidence, and 21-2, the defendant may recognize the fact that the defendant succeeded to the obligations of the contract concluded by the plaintiff for the trust business of this case and paid the following expenses, and there is no counter-proof.

(1) Design expenses of 104,000,000 won, such as construction, for the building of the building of the comprehensive architect office of a stock company.

(2) Civil engineering design costs of 15,000,000 won for central civil engineering and design works.

(3) The design cost of 8,500,000 won for earth against Cheongh Engineering Co., Ltd.

(4) 20,000,000 won for the survey and design of access roads (private map) to Dong Engineering and Engineering Co., Ltd.

(5) The Korea Appraisal Board shall assess 8,225,00 won.

(6) Development costs of 110,000,000 won for a research institute affiliated with a building-to-building;

total amount of KRW 265,725,000

In addition to the above-mentioned expenditures, the defendant argued that the construction and fire supervision contract of KRW 800,00,000, which was entered into with Saturdays Co., Ltd. on May 23, 1997, the advertising agency contract of KRW 114,625,00,00 which was entered into with Dong bank Planning Co., Ltd., and the promotional material production contract of KRW 32,00,000 which was entered into with the street company should also be included in the subject of settlement. However, since there is no evidence to prove that the defendant spent expenses other than the above contract was concluded, this part of the defendant's assertion is not accepted.

(5) Termination Fees

Since the Defendant asserts that the termination fee should be paid to the Plaintiff following the termination of the instant trust agreement, it can be acknowledged that the Plaintiff agreed to pay the Defendant the termination fee equivalent to 2/1000 of the value of the instant trust real estate in the event that the Plaintiff terminates the instant trust agreement in consultation with the Defendant due to extenuating circumstances, fails to cancel the limitation real rights to the instant real estate, or finds the obligation relationship for the purpose of the instant trust property itself is difficult to implement the business due to the occurrence of failure to obtain necessary authorization or cancellation, or it is difficult to implement the business due to the discovery of the obligation relationship for the purpose of the instant trust property, the Plaintiff has agreed to pay the Defendant the termination fee equivalent to 2/100 of the value of the instant

C. Sub-committee

Therefore, by September 9, 1998, the Plaintiff is obligated to pay the Defendant the sum of KRW 1,553,323,870 [=536,58,008-8,243, and343 (the portion without any dispute) +1.680,000 +261,106, and285 (purchase costs and interest on investment certificates of the Housing Mutual Aid Association)-1,200,000 +18,147,920 (loan and interest) +265,725,00 (the expenditure due to the succession of the contract)] as the loss arising from the instant trust until September 9, 1998.

3. Conclusion

Therefore, the defendant is liable to implement the registration procedure for transfer of ownership by giving the plaintiff the payment of KRW 1,53,323,870 to the plaintiff, and at the same time, giving the plaintiff the termination of the trust as of September 9, 1998 on the real estate of this case. It is so decided as per Disposition.

Judges Lee Sung-sung(Presiding Judge)