[1] Whether a beneficiary designated as the right holder of the trust property may seek the implementation of the procedure for registration of transfer of ownership of the trust property by paying the expenses, etc. before exercising the right to self-help sale of the trust property in order to receive compensation for expenses after the termination of the trust (affirmative)

[2] Where a trustee can exercise the right to sell self-help trust property to receive compensation for expenses after the termination of the trust, whether a beneficiary designated as the right holder to whom the trust property belongs has the right to file an application for provisional injunction against disposal of the trust property when the beneficiary fails to fulfill the duty to compensate for expenses (affirmative)

[3] The case holding that it is difficult to conclude that there is a need to prohibit the trustee from taking provisional disposition on the ground that the trustee, who has the right to self-help sale of the trust property, is dissatisfied with the scope of the beneficiary's duty to compensate for expenses, etc. designated as the right holder to whom the trust property reverts, on the sole basis of such circumstance, is likely to unfairly dispose of the

[1] Articles 42 and 60 of the Trust Act / [2] Articles 42 and 60 of the Trust Act; Articles 277 and 300 of the Civil Execution Act / [3] Articles 42 and 60 of the Trust Act; Article 300 (1) of the Civil Execution Act

Creditor Co., Ltd. (Law Firm Hanl, Attorneys Jeong Young-won et al., Counsel for the plaintiff-appellant)

Debtor Co., Ltd. (Law Firm Sejong, Attorneys Kang Shin-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na58276 decided August 16, 2006

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the second ground for appeal

Even if a trustee can exercise the right to self-help sale of the trust property to receive compensation for expenses after the termination of the trust, such circumstance alone does not necessarily lead to the absence or extinguishment of a beneficiary's right to claim the transfer registration of ownership of the trust property. The beneficiary can seek the implementation of the procedure for transfer registration of ownership of the trust property by paying expenses to the trustee before disposing of the trust property by exercising the right to self-help sale of the trust property to receive compensation for expenses.

In the same purport, the court below is justified in holding that since Article 19 of the Trust Contract of this case is a special agreement between the parties allowing a trustee to exercise the right to self-help sale of the trust property of this case even after the termination of the trust, the debtor, the trustee, has the right to self-help sale of the trust property of this case pursuant to Article 19 of the Trust Contract of this case, but the creditor, the beneficiary designated as the right holder to whom the trust property of this case belongs, has the right to claim the registration of ownership transfer by paying expenses, remuneration, etc.

The court below did not err in the misapprehension of legal principles as to the order of priority between the trustee's right to self-help sale and the beneficiary's right to claim ownership transfer registration after the trust is completed.

2. Regarding ground of appeal No. 1

The lower court accepted the obligor’s assertion based on Article 19 of the instant trust agreement and recognized that the obligor, the trustee, can sell the instant trust property in order to receive compensation for expenses, etc., even after the termination of the instant trust agreement. Therefore, the obligor’s assertion in the grounds of appeal that the instant trust property may be sold on the basis of the right to self-help sale stipulated under Article 42(1) of the Trust Act is merely a assertion of grounds that cannot affect the judgment, and thus, cannot

3. As to the third ground for appeal

Where a trustee is able to exercise the right to self-help sale of a trust property to receive compensation for expenses, etc. after the termination of the trust, a beneficiary designated as the right holder to whom the trust property reverts shall have the right to file an application for prohibition of disposal of the trust property to preserve the right to claim the registration of transfer of ownership of the trust property even if the trustee has not yet fulfilled his/her obligation to compensate for expenses, etc., and further, where it is necessary to prevent the trustee from disposing of the trust property even if he/she has been paid his/her obligation to compensate for expenses

In light of the above legal principles, the reasoning of the lower judgment, and the record, insofar as a creditor, who is a beneficiary designated as the right holder to whom the trust property of this case belongs, seeks a provisional disposition against the prohibition of disposal of the trust property of this case to preserve the right to claim ownership transfer registration after the termination of the trust of this case, there

However, the provisional disposition by the obligee cannot be issued to prohibit the obligor from disposing of the trust property of this case as part of the exercise of the right to self-determination and sale of the trust property of this case. However, if the obligor is reimbursed the entire amount of the trust property from the obligee, but there is a concern that the obligor will dispose of the trust property unfairly, it may be issued by recognizing the necessity of preservation. However, since December 31, 2000, until March 8, 2006, the date when the trust of this case was closed in the court below, the obligee can only dispute the scope of the obligation to compensate for expenses, and at least it is difficult for the obligee to claim that there is no possibility that the obligor will pay the obligee within a reasonable period of time until the date when the trust of this case is closed, or that there is no possibility that the obligor will incur more than 18.2 billion won for the obligee to dispose of the trust property of this case, or that there is no possibility that the obligor will incur more than 36.5 billion won for the obligee to dispose of the trust property of this case.

Nevertheless, the lower court did not examine whether the need for preservation can be recognized on the grounds that the debtor might dispose of trust property with the repayment of debts related to trust from the creditor, but it did not examine whether there is a possibility that the debtor might dispose of the trust property unfairly, and concluded that there is a need for preservation on the sole basis that the debtor disputes the scope of the creditor’s obligation to compensate for expenses. In so doing, the lower court did not err by misapprehending the legal doctrine on

The ground of appeal pointing this out is with merit.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)