(영문) 서울고등법원 2003. 8. 29. 선고 2002나51106 판결

In relation to each trust project described in the separate trust project indication 1, 3, or 8, it is confirmed that the Defendant’s right to claim reimbursement of expenses against the trust property described in subparagraph (c) of the above paragraph has the maximum debt amount of KRW 59,154,00,000,000.

3. The costs of appeal shall be borne by the Defendant and the Intervenor.

Purport of claim and appeal

1. Purport of claim

As to the beneficiary specified in the separate trust project indication 1, 3, or 8, and the beneficiary specified in the separate trust project indication 1, 3, or 8 (b) and the defendant's right to claim reimbursement of expenses against trust property specified in the separate trust project indication 1, 3, or 8 (c), the right to claim reimbursement of expenses against the trust property stated in the separate trust project indication 59,154,00,000 won shall be confirmed to be the plaintiff (the plaintiff reduced the claim in the first instance).

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

Reasons

1. Basic facts

The following facts are not disputed between the parties, or there is no conflict between Gap evidence of Nos. 1 through 14, and Eul evidence of Nos. 1 through 5 (However, the evidence No. 5 is partially written) and some testimony of the right to stuff of the court of first instance, and the whole purport of the pleadings, and contrary thereto, Eul's partial entry of No. 5 and testimony of the right to stuff of the witness of the court of first instance is not believed, and there is no other counter-proof.

A. Conclusion of contract to establish a pledge right

(1) Cret Trust Co., Ltd. (formerly: Korean Real Estate Trust Co., Ltd.; hereinafter “Cret Trust”) concluded a trust contract as a juristic person engaged in the trust business and performed the trust business. The main content of the above trust business is to build a building on the land trusted by the trustor as a development trust business and sell the land and buildings to the trust property.

(2) The Cret Trust borrowed money from the Yangyang Comprehensive Financial Securities Co., Ltd. (hereinafter referred to as the “Plaintiff”) for the purpose of carrying on each of the above trust businesses, with the loan borrowed from the money required for carrying on the above trust businesses for convenience of convenience. The loan reached KRW 42,253,00,000 as of May 29, 1998.

(3) On July 1, 1998, the Plaintiff and Cret Trust concluded a pledge agreement with the Plaintiff on the right to claim reimbursement of expenses (the “trustee’s expenses and the right to claim reimbursement of expenses” in the text of Article 42 of the Trust Act (hereinafter “the Act”) owned by Cret Trust as a trustee in order to secure the Plaintiff’s claim for the above loan. At the time of entering into the said contract on June 1, 1998, the Plaintiff and Cret Trust entered into a trust agreement with the Plaintiff on the basis of the maximum debt amount of KRW 59,154,00,000 for convenience (the “right to claim reimbursement of expenses”). At the time of entering into the said contract, other creditors participated in the instant pledge agreement jointly with the Plaintiff on the basis of the maximum debt amount according to their amount of claims.

(b) Main contents of a pledge contract;

(1) Article 1 (Subject-Matter of Pledge and Party)

This pledge is established on the land (development) trust contract between the truster and the trustee of the trust business (hereinafter referred to as the "trust contract") and on the trustee's right to claim reimbursement of land trust expenses incurred under section 42 of the Act.

(2) Article 2 (Contents of Pledge)

Scope of secured obligation: Amount of obligation, interest, overdue interest and expenses for enforcement of pledge;

The due date for obligations: the date of termination or termination of trust

The order of priority of a pledge: Each pledgee shall take the same order even after the date of conclusion of a pledge agreement and the date of notification of the contents of a pledge agreement.

(3) Article 4 (Effect Scope of Pledge)

(A) The effect of the pledge shall extend to the right of the Creret Trust to claim reimbursement of expenses from the trust property on the basis of the trust contract and the section 42 of the Act, provided that the Cret Trust borrows from the Plaintiff to the extent of the expenses incurred in the project in question.

(B) The right to claim reimbursement of expenses under the above (A) refers to the right to be granted in preference to other right holders only to the trust-related obligations and interest on trust property, such as trust property, sale price, and deposit money, based on the trust contract when the trustee completes or terminates the trust.

(4) Article 5 (Duty to Notify)

Where a pledge contract is concluded, the Cret Trust shall notify the beneficiary of the certificate with a fixed date, and shall notify the plaintiff without delay when the trust contract is terminated or terminated.

(5) Enforcement of a pledge

(A) In the event that the Cret Trust fails to perform its obligation or delays the performance of its obligation at the time of the debt repayment, the Plaintiff may exercise the right of pledge on the right to claim the reimbursement of expenses at the time of termination or termination of the trust contract.

(B) In the event of failure to repay debts upon the termination or termination of the trust, the Plaintiff may request the Crerete Trust to sell the real estate in trust, and the Crete Trust shall comply with the request unless there is any special reason to the contrary.

(C) In the case of the above (B), when the coart trust in question collects the expenses invested in the business from the plaintiff, the funds will be repaid in proportion to the amount of the claims of the plaintiff and other co-owners.

(1) In the latter half of 1998, as the management has deteriorated to the point of de facto default, creditor financial institutions, including the Plaintiff and the Defendant’s Intervenor 1 through 7, from February 1999, began to perform corporate improvement work to recover claims after normalization of the Creret Trust through debt deferment and funding support, etc. under the initiative of the Korea-U.S. Bank (hereinafter “Korea-U.S. Bank”), a main bond-related agency, from February 1, 1999. The main contents of the agreement between the claims-related agencies for corporate improvement work of the Cret Trust are as follows (No. 9-2).

In order to consult and resolve on matters related to corporate improvement, a council of bond agencies comprised of all bond agencies shall be organized (Article 3). The council shall make a resolution with the consent of the bond agencies holding not less than 3/4 of the total amount of bonds (Article 6). The bond agencies shall faithfully comply with the contents of this Convention and the matters to be resolved by the council (Article 15).

(2) The creditor financial institutions, including the Plaintiff, consented to a corporate improvement program on October 8, 199 (hereinafter “the first corporate improvement program”), and the summary thereof is that the creditor financial institutions suspend claims for repayment and provide new funds to all claims subject to deferment of the exercise of claims resolved by the council of creditor institutions. In addition, with respect to the method of disposal of the principal and interest of existing claims, the trust business for which the pledge is established on the right to claim for reimbursement of expenses is divided into a joint fund (FD) and managed, and if surplus funds accrue, the trust business is recovered as soon as the trust business is terminated, and shall be repaid in proportion to the claim for reimbursement to the creditor institutions of the right to claim reimbursement.

(d) Submission of and resolution on a corporate improvement program;

(1) Although the primary corporate improvement plan was implemented, the Defendant’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s primary investment institution of the Cret Trust demanded a new debt adjustment proposal, and on February 28, 2001, the Korea-U.S. Bank submitted a new corporate improvement plan. The main contents are as follows.

(A) The place of business with a good business value is to establish a trust company and to transfer it to the new company, and the place of business with a low business value shall be sold and arranged as it is to the Komart Trust.

(b) The new company shall not be held liable for the repayment of any other loan not yet transferred to the new company by transferring only the loan available for the trust business to the new company in order to establish the new company in the form of a new investment and to promote the normal operation of the trust business.

(C) The appropriate allocation of loans for loans to be transferred to a new company is the first secured debt, the second secured debt is the second secured debt, the third secured debt is the third secured debt, and the third secured debt is the secured debt such as the letter of guarantee and the real estate.

(D) Claims related to the right to claim reimbursement of expenses shall be classified into unsecured claims and calculated the borrowings prior to the new company. However, the method of settlement after the completion of sale, termination, etc. of the relevant trust business shall be governed by legal interpretation, etc.

(2) In accordance with the first corporate improvement program, the Plaintiff asserted that the Plaintiff’s claim, which was in the priority order with the secured claim, was in a new corporate improvement program and was distributed in proportion to other general claims, and thus, cannot be actually recovered. However, the said corporate improvement program was adopted with the consent of 75% of other creditor financial institutions (hereinafter “the second corporate improvement program”).

(3) In accordance with the second corporate improvement program, the Defendant was established on March 20, 201, and the Defendant acquired the trust business referred to in subparagraphs 1, 3, and 8 of the attached Table through a business transfer on April 2001. Korea-U.S. bank entered into an corporate improvement agreement with the Defendant on May 2001, such as the second corporate improvement plan.

2. The parties' assertion and judgment

(a) Benefits of confirmation;

(1) The plaintiff asserts that the defendant acquired the above trust business from the Korererererererererererererererererererererererererererererererererererererererererererererererererererererererererererere

(2) (A) The defendant (including supplementary intervenors; hereinafter referred to as "the defendant"), first of all, if the plaintiff has a right to claim reimbursement of expenses for the Creret Trust as a pledge, the defendant's right to claim reimbursement of expenses cannot be transferred to the defendant without the plaintiff's consent, so there is no benefit to seek confirmation of this case. However, according to the facts acknowledged earlier, it is reasonable to view that the defendant takes over the trust business by classifying the secured debt as a pledge right established between Cret Trust and the plaintiff as a non-mortgage, but it is reasonable to determine the settlement method after the completion of the relevant trust business in accordance with the legal interpretation of the effect of the pledge right established by the plaintiff, etc. ( even if the plaintiff expressed his objection against the second corporate improvement plan, the above plan has been legally resolved in accordance with the procedure set by the Council of Bonds and Organizations participating in the plaintiff, so the contents of the corporate improvement agreement concluded accordingly also affect the plaintiff, and therefore, the plaintiff also consented before the right to claim reimbursement of expenses included in the above corporate improvement agreement).

(B) In addition, the defendant argues that since the above right to claim reimbursement of expenses is not yet terminated and the due date has not yet arrived, the plaintiff's right to claim reimbursement of expenses is not subject to the present right and there is no benefit of confirmation. However, the plaintiff's right to claim reimbursement of expenses is a conditional right or time limit right, and the pledge is also subject to the present right. Therefore, the above defense is without merit.

(C) Lastly, the defendant defense that the plaintiff's claim for confirmation of this case was not a benefit of confirmation despite the plaintiff's claim for performance such as the claim for reimbursement of expenses or the claim for delivery of profits. However, in the second corporate improvement program, the claims related to the claim for reimbursement of expenses should be classified as non-mortgaged bonds, but the settlement method after the termination of the sale, termination, etc. of the relevant trust business shall be followed by the legal interpretation, etc., unless there is any evidence that the pertinent trust business is all terminated, the claim for confirmation of this case shall be the most effective and appropriate means to eliminate the plaintiff's concerns and risks existing in the plaintiff's rights or legal status. Therefore, the aforementioned defense is without merit.

B. Determination on the merits (the part of the claim for reimbursement of expenses against the beneficiary dismissed in the first instance shall not be determined separately since the plaintiff did not appeal)

(1) According to the facts acknowledged above, the defendant who takes over the trust business from the Cret Trust shall be deemed to have taken over the right to claim reimbursement of expenses from the Cret Trust against the trust property that the Cret Trust established the pledge against the plaintiff, unless there are special circumstances (However, the validity of the pledge right shall be governed by the legal interpretation).

(2) On this ground, the defendant asserts that the contract establishing a pledge on the right to claim reimbursement of expenses is null and void against the legal principle of real right.

(A) The Defendant asserts that the “right to claim reimbursement of expenses held by the trustee in relation to the trust business indicated in the attached Form 1, 3, or 8” is the object of the pledge of this case, but the “right to claim reimbursement of expenses” cannot be deemed to be the object of the pledge of this case, and therefore, the “right to claim reimbursement of expenses” cannot be deemed to be specified. However, the right to increase or decrease arising from a certain transactional relationship shall be deemed to be specified separately from other rights in a way that specifies the basis of the occurrence, the object of the payment, and the scope of transfer, and the right to claim reimbursement of expenses that the trustee holds in relation to the trust business indicated in the attached Form 1, 3, or 8, shall be deemed to be specified. As long as the purpose of the pledge of this case is to specify the “right to claim reimbursement of expenses held by the trustee in relation

(B) The Defendant asserts that the purpose of the instant pledge is inconsistent with our legal system that does not allow real estate pledge by recognizing the instant pledge right as a result of allowing the acquisition of the security right to the exchange value of land through the method of establishing a pledge right, but the purpose of the instant pledge right is not the trust property itself, but the trustee’s right to the reimbursement of expenses held in the trust property. Therefore,

(C) The defendant asserts that the right to claim reimbursement of expenses under Article 42 (1) of the Act is merely the right to deduct expenses from the trust property and thus a pledge cannot be established. However, the trustee can claim against the beneficiary for the expenses (Article 49 (2) of the Act), Article 3 (Public Notice of Trust), Article 20 (Prohibition of Offset), Article 21 (Compulsory Execution), Article 22 (Bankruptcy of Trustee and Bankruptcy of Trust Property), Article 24 (Non-existence of Trust Property), Article 25 (Independence of Trust Property), Article 30 (Separate Management Duty of Trustee), Article 31 (Restriction on Acquisition of Right by Trustee) of the Trust Property, and Article 31 (Restriction on Acquisition of Right by Trustee) of the Trust Property cannot be viewed as separate from the trust property's owner's right to claim reimbursement of expenses as an owner of the trust property (Article 49 (1) of the Act).

(D) The defendant asserts that the right to self-help sale (the right to sell the trust property for the purpose of receiving reimbursement of expenses by the pledgee pursuant to Article 42 (1) of the Act) cannot be exercised by a third party, and thus the right to claim reimbursement of expenses including the right to claim reimbursement of expenses cannot be established. However, the right to claim reimbursement of expenses under Article 42 of the Act includes the right to collect money from the trustee in the position of the trustee who is the owner of the trust property in the position of the trustee in the position of the owner of the trust property if the trust property is money. The right to self-help sale guarantees the above right, and as long as the right to collect is established as above, the right to claim the sale of the trust property is effective (Article 6 (2) of the above right to claim the sale of the trust property by the pledgee's exercise of the right to claim the sale of the trust property by the trustee). In addition, the pledgee's assertion that the above right to claim the sale of the trust property can not be justified in itself because it is impossible to claim the sale itself.

(E) The defendant asserts that each pledgee shall take the same order even after the date of concluding the contract of pledge and the date of notifying the contents of the contract of pledge (Article 2 subparagraph 4 of the same Act) is contrary to the legal principle of real rights, and thus the above pledge should be deemed null and void. However, since multiple pledgees have entered into one contract with respect to the right to claim reimbursement of expenses held by the trustee against the trust property at the same time, each pledgee shall naturally be the same order. The issue in this case is that the trustee's right to claim reimbursement of expenses against the trust property, so the notification to the beneficiary cannot be viewed as a requisite for setting up the above pledge. Thus, it is difficult to view that the above pledge becomes null and void on the ground that there is the above provision.

(F) The Defendant may sell or liquidate trust property at any time pursuant to Article 42(1) of the Act, and this is contrary to Article 352 of the Civil Act that limits the disposition of the right that is the object of the pledge, and thus, the above pledge is null and void. However, in the above pledge agreement, it is not the trust property itself but the trustee’s right to reimburse the expenses for the trust property. Thus, the above pledge cannot be deemed null and void on the ground that the trustee can sell or liquidate trust property at his own discretion.

(G) The Defendant asserts that the pledgee may exercise a right to reimbursement directly against a third party obligor under the Civil Act or exercise a right by means of collection, realization, etc. under the Civil Execution Act. The Plaintiff has no such right and the pledger is obligated to collect expenses and pay expenses in installments to the pledgee (Article 6(3)). Thus, the Plaintiff’s pledge right is invalid merely because it has no commercial effect (Article 6(3)). However, the pledgee who has established a pledge right on the right to reimbursement of expenses can directly exercise a right to reimbursement of expenses against the trustee who is the owner or manager of the trust property by the exercise of the pledge right against the trustee who is the owner or manager of the trust property (if the trustee concurrently assumes the above position, the pledgee's exercise his/her claim against the trustee), and as seen above, the Plaintiff can execute a pledge by means of a special agreement under the Civil Act or the Civil Execution Act, and thus, it cannot be seen that there is any additional method to implement the pledge right under the Civil Act.

(3) The defendant asserts that the contract to establish a pledge on the right to claim reimbursement of expenses is null and void due to the trustee's duty of loyalty that the trustee should act for the benefit of the trust property. However, the trustee's right to claim reimbursement of expenses for the trust property is a right on the inherent property held by the trustee prior to the creation of the pledge of this case, which is already a burden on the trust property prior to the creation of the pledge of this case, and is not a new burden on the trust property due to the creation of the pledge of this case, and even if the pledgee is not an acquisition of the right held by the trustee, it cannot be deemed that the trustee violated the duty of loyalty due to the creation of

(4) The defendant asserts to the purport that the claim for confirmation of the right of sale and exchange of his/her own trust property is unjustifiable because it has the right of sale and exchange under Article 42 (1) of the Act. However, the defendant may have a right to claim reimbursement of expenses under the above Act as to the expenses he/she paid as the trustee in addition to the right to claim reimbursement of expenses that he/she acquired by transfer of the trust business from the Korererererec Trust. However, the plaintiff's claim for confirmation of the right of pledge of this case is a right to claim reimbursement

(5) In a case where the trustee’s loss, reduction, or any other damage was incurred due to the trustee’s failure to properly manage the trust property, the truster, beneficiary, etc. may file a claim against the trustee for compensation for loss or recovery of the trust property, if the trustee fails to manage the trust property separately from its own property or other trust property. In a case where such claim is filed, the trustee cannot exercise his right to claim reimbursement of expenses, unless the trustee performs his/her duty to compensate for loss or recover the trust property. Thus, the plaintiff’s claim of this case, which did not prove that the Cret Trust has performed the above obligation to compensate for loss, is groundless. However, even if Cret Trust, which is the former trustee, is subject to restriction on the exercise of the right to claim reimbursement of expenses on the above ground, the plaintiff’s claim of this case cannot be any obstacle to the confirmation of the claim

(6) The Defendant asserted that the instant claim does not constitute the expenses under Article 42(1) of the Act, since the Cret Trust does not constitute the expenses incurred in promoting the above trust business, but in the case of land (development), it is the purpose of the trust to borrow funds from the trustee to construct on the trust land. Since the above input expenses are deemed to have been used for the above purpose of the trust, the above input expenses also constitute the expenses prescribed under the above provision. Therefore, the above assertion is without merit.

(7) The defendant asserts that the contract of this case is invalid as it was done by the bankrupt's knowledge that the contract of this case would prejudice the bankruptcy creditor, and it constitutes an act that can be denied under Article 64 subparagraph 1 of the Bankruptcy Act. However, even if the contract of this case constitutes an act that can be denied under Article 64 subparagraph 1 of the Bankruptcy Act, only the bankruptcy trustee of this case can deny the contract of this case. The effect of the avoidance is only between the bankruptcy trustee and the other party of the avoidance, and it does not affect any third party, and even if the plaintiff is verified against the defendant, it cannot be deemed that the bankruptcy trustee of this case of this case cannot be an obstacle to exercising the right of avoidance. Thus, the defendant cannot dispute the plaintiff's claim of this case for the confirmation of the right of this case for this reason. The above assertion is without merit.

C. Sub-decision

Therefore, since the pledge agreement entered into between Cret Trust and the Plaintiff is valid, in relation to the trust business described in the separate trust business indication 1, 3, and 8, the defendant's right to claim reimbursement of expenses against the trust property described in the separate trust business indication 59,154,00,000 won shall be the plaintiff.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remainder is dismissed, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed (Article 1 of the judgment of the court of first instance has been reduced by the reduction of the plaintiff's claim from the court of first instance) and it is so decided as per Disposition.

Judges' profit-making (Presiding Judge)

심급 사건

-서울지방법원 2002.8.21.선고 2001가합33654

서울고등법원 2003.8.29.선고 2002나51106

-대법원 2005.12.22.선고 2003다55059

원심판결

-서울지방법원 2002. 8. 21. 선고 2001가합33654 판결

본문참조판례

-대법원 1987. 5. 12. 선고 86다545 판결

본문참조조문

-민법

-민법 제352조