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The appeal is dismissed.
The costs of appeal are assessed against the defendant.
Reasons
The grounds of appeal are examined.
1. As to the grounds of appeal Nos. 2 and 3, Article 5(2) of the former Trust Act (wholly amended by Act No. 10924, Jul. 25, 201; hereinafter the same) provides that “a trust shall be deemed null and void where its purpose is illegal or impossible.”
The purport of Article 5(2) of the former Trust Act is that a truster transfers a specific property right to a trustee to manage and dispose of the property right for the purpose of the trust by having the trustee manage and dispose of the property right (Article 1(2)). If the purpose of the trust is illegal, such as violation of the mandatory law, or because it is impossible to realize it from the time of the trust contract to the point of view, it is impossible to recognize its validity if the trust is for an original impossible benefit.
Therefore, in cases where a project proprietor is unable to execute a sales contract to a buyer, if the sales guarantee company concludes a trust contract for the purpose of disposing of the trusted real estate after the execution of the sale in lots or refund and completes the registration of the trust pursuant thereto, it cannot be said that the purpose of the trust is contrary to specific legal provisions prohibiting certain acts or that it was in fact or impossible to do so from the time of the contract. Thus, it cannot be said that the above trust contract is null and void because its purpose is illegal or impossible.
In the same purport, the court below is justified in holding that the trust contract and trust registration of this case entered into by the Korea Housing and Urban Guarantee Corporation, which is the plaintiff who made the house sale guarantee, for the purpose of selling, selling and disposing of the trust real estate after the occurrence of the guarantee accident due to the default of the business operator, cannot be deemed to constitute an impossible purpose.
Contrary to the allegations in the grounds of appeal, the court below erred by misapprehending the legal principles on impossibility of the purpose of trust.