[1] Before the trustee exercises the right to self-help sale of the trust property after the termination of the trust, whether the beneficiary designated as the right holder to whom the trust property belongs can claim the implementation of the procedure for the registration of transfer of ownership of the trust property by paying expenses

[2] The case holding that the beneficiary's duty to compensate for expenses should be performed in preference to the trustee's duty to transfer ownership when the trust is terminated

[3] Where a trust deed provides that "where the beneficiary is insufficient to cover expenses, etc. for handling trust affairs in money, which are part of the trust property, the beneficiary shall be claimed, and where the trustee may sell some or all of the trust property at a reasonable method and price, and appropriate for the payment thereof, the trustee may claim compensation from the beneficiary, the purport and the scope of expenses that the trustee may claim for compensation

[4] Whether a transaction of trust property and proprietary property conducted by a trust company becomes effective due to the circumstance that the transaction is beneficial to the beneficiary (negative)

[1] Even if a trustee may 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 in the trust property designated as the right holder to whom the trust property belongs. The beneficiary may seek the procedure for the transfer registration of ownership in the trust property by paying expenses to the trustee before the trustee exercises the right to self-help sale

[2] The case holding that the duty of compensation for expenses to be borne by the beneficiary and the truster of the trust property upon termination of the trust should be performed in preference to the trustee's duty of registration for transfer of ownership of the trust property

[3] In a trust contract, “where money and its interest belonging to trust property are insufficient to cover any money and loss incurred without the negligence of the trustee in the course of performing the trust affairs, and other expenses incurred in performing the trust affairs, the beneficiary shall be claimed, and where such money and its value are insufficient, all or part of the trust property may be sold to the beneficiary and appropriated for the payment thereof, and where the beneficiary fails to pay the expenses, etc. of the trust property while the trust remains in existence or after the trust is terminated, the trustee may dispose of the trust property and appropriate the proceeds to reimburse the expenses, etc. of the trust property, thereby promoting the convenience in collecting the expenses, etc. of the trust property. Therefore, even if the trust property is deemed to continue to exist after the trust is terminated pursuant to Article 61 of the Trust Act and until the trust property is transferred to the person to whom the trust property reverts, the trustee may recover the loan and all expenses incurred in performing the trust affairs in accordance with the trust contract, and if such expenses are deemed to have been incurred to the beneficiary after the trust affairs or the expiration of the trust affairs or the remainder of the trust expenses of the trustee.

[4] According to the main sentence of Article 31(1) of the Trust Act, barring any special circumstance, any transaction made in violation of the above provision shall not be deemed valid merely on the ground that the transaction between the trust property and the proprietary property conducted by the trust company is beneficial to the beneficiary, and the transaction made in violation of the above provision is invalid. On the other hand, in the case of a trust other than a money trust, where the trustee is a trust company, it shall be deemed that the trust property may become its proprietary property with the permission of the court where it is apparent that it is beneficial to the beneficiary or there is any other justifiable reason. In light of the proviso of Article 31(1) of the Trust Act, which excludes the application of the proviso of Article 31(1) of the Trust Act, which provides that the trust property and the proprietary property conducted by the trust company are beneficial to the beneficiary.

[1] Articles 42 and 60 of the Trust Act / [2] Article 105 of the Civil Act, Articles 42 and 60 of the Trust Act / [3] Article 105 of the Civil Act, Articles 42 and 61 of the Trust Act / [4] Article 31 (1) of the Trust Act, Article 12 (1) of the Trust Business Act, Article 105 of the Civil Act

[3] Supreme Court Decision 2003Da47621 decided Apr. 15, 2005 (Gong2005Sang, 729) / [4] Supreme Court Decision 2005Da64552 decided Nov. 29, 2007 (Gong2007Ha, 2001)

Plaintiff Co., Ltd. (Law Firm Hanl, Attorneys Long-si et al., Counsel for the plaintiff-appellant)

Korea Land Trust Co., Ltd. (Law Firm Sejong and 1 other, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2005Na58269 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 trustee's claim for reimbursement of expenses

According to the facts duly established by the court below and the records, Article 19 of the trust agreement of this case prepared by the plaintiff and the trustee, the truster, in entering into the land trust agreement of this case (hereinafter "trust agreement of this case") provides that "where loans and interest thereon are not sufficient to cover expenses incurred without the defendant's fault in performing trust affairs, other expenses incurred in performing trust affairs, and the defendant's payment, all or part of the trust property may be sold and appropriated for payment." After the termination of the trust agreement of this case, it is insufficient to cover expenses incurred in performing trust affairs, such as monetary loans and interest thereon, which are part of the trust property of this case, and the defendant's payment, etc., and Article 25 of the trust agreement of this case is designated as the beneficiary as the truster to whom the trust property of this case was delivered at the time of termination of the trust agreement of this case is designated as the beneficiary. Therefore, the defendant, the trustee, after the termination of the trust agreement of this case, can claim the plaintiff's repayment of the loan and interest payment of this case's trust property.

Although the reasoning of the lower court is insufficient, the conclusion to the same effect is justifiable.

The judgment of the court below is not erroneous in the misapprehension of legal principles as to the requirements for establishing the trustee's claim for reimbursement, as otherwise alleged in the ground of appeal.

2. As to the interpretation of Article 19 and subparagraph 3 of Article 25 of the Trust Contract of this case

In light of the records, the court below held that Article 19 of the Trust Contract of this case is a special clause which provides that where the defendant, the trustee, claims expenses, etc. concerning the trust property during the existence of the trust of this case or after the termination of the trust of this case, but the plaintiff did not pay them to the plaintiff, the defendant would dispose of the trust property and grant the right to self-help sale so that the payment can be appropriated for the payment of expenses, etc. concerning the trust property. The provisions of Article 25 subparagraph 3 of the Trust Contract of this case are reserved if there is any money among the trust property concerning the repayment of the debt to the third party incurred in the course of performing the trust affairs at the time of the termination of the trust of this case, and if there is a shortage of reservation, the beneficiary will take over the obligation with the consent of the third party, and it does not exclude the validity of the special agreement as stipulated in Article 19 of the Trust Contract of this case, which recognizes the right to self-help sale of the trust property of this case.

The court below did not err in the misapprehension of legal principles as to the interpretation of trust contract as otherwise alleged in the ground of appeal.

3. As to the exercise of the right to self-help sale under Article 42(1) of the Trust Act after the termination of the trust

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

4. As to the beneficiary's right to claim ownership transfer registration of trust property

Even if a trustee can exercise the right to self-help sale of the trust property to receive compensation for expenses, etc. 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 in the trust property designated as the right holder to whom the trust property belongs. The beneficiary can seek the implementation of the procedure for the transfer registration of ownership in the trust property by paying expenses to the trustee before the trustee exercises the right

In the same purport, the lower court is justifiable to have determined that the Plaintiff, a beneficiary designated as the right holder to whom the instant trust property belongs, can seek the implementation of the procedure for the registration of transfer of ownership of the instant trust property by paying expenses, remuneration, etc. to the Defendant, even if the Defendant, the trustee upon termination of the instant trust property.

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.

5. Regarding the relationship between the beneficiary's duty to compensate for expenses and the trustee's duty to transfer ownership

As seen earlier, Article 19 of the Trust Contract of this case provides that the trustee may exercise the right to self-help sale prior to the return of the trust property of this case in the event that it is insufficient to cover expenses incurred in performing trust affairs in money and the Defendant’s payment, etc., which are part of the trust property after the termination of the trust contract of this case. In addition, prior to the exercise of the right to self-help sale, the beneficiary of this case’s trust property of this case and the right holder to whom the trust of this case belongs can claim compensation for expenses against the Plaintiff who is the right holder to whom the trust of this case belongs. Thus, it is reasonable to view that the Plaintiff

The lower court’s determination that made the same conclusion is justifiable.

The court below did not err in the misapprehension of legal principles as to prior performance relations or simultaneous performance relations as otherwise alleged in the ground of appeal by the plaintiff.

6. As to the scope of the duty to compensate for expenses

A. As seen earlier, Article 19 of the Trust Contract of this case is aimed at promoting the convenience of collecting expenses, etc. concerning the trust property by disposing of the trust property and by allowing the trustee to appropriate the proceeds for the settlement of expenses, etc. concerning the trust property in cases where the beneficiary fails to pay the expenses, etc. to the beneficiary during the existence of the trust of this case or after the termination of the trust of this case (see Supreme Court Decision 2003Da47621, Apr. 15, 2005). Thus, even if the trust of this case is deemed to exist after the termination of the trust of this case under Article 61 of the Trust Act and until the trust property is transferred to the beneficiary, the trustee may recover all expenses, including borrowings, in accordance with the method prescribed in Article 19 of the Trust Contract of this case, and such expenses may be deemed to have been duly borne by the beneficiary or to have been duly borne by the beneficiary before the termination of the trust contract, regardless of whether such expenses were incurred by the beneficiary or due care of the remaining expenses incurred after the termination of the trust work of this case.

According to the records, for the performance of remaining trust affairs after December 31, 200, the date of termination of the trust of this case, the Defendant, as the trustee, bears the obligation of KRW 30,387,984,952 as of December 31, 200, as of December 31, 200, as of December 31, 200, such as interest on the debt prior to the completion of the trust of this case, traffic inducement charges imposed on the building out of the trust of this case, building management fees equivalent to KRW 10,00 per month, fees for the sale of buildings after the termination of the trust of this case, fees for the sale of buildings in lots, design service expenses following a design change, etc., or borrowing money equivalent to KRW 3,146,72,272,270 as of December 31, 205, and as of December 2, 765, 306, the lower court claims that the Defendant actually paid or bears the obligation to compensate for the trust affairs of this case or the beneficiary.

Supreme Court Decision 200Da25989 Decided March 26, 2002 cited by the court below decided on the part of the claim for reimbursement of expenses against the person holding the right to attribution of trust property after the completion of the trust "based on Article 61 of the Trust Act". The scope of the obligation for reimbursement as a person holding the right to attribution under Article 61 of the Trust Act is merely the purport that the person holding the right to attribution bears the obligation to compensate only the expenses necessary to achieve the purpose of the trust during the statutory trust period, and does not decide on the scope of the claim for reimbursement of expenses not based on Article 61 of the Trust Act. Therefore, it is not reasonable to determine the scope of the obligation for reimbursement of expenses by applying the above Supreme Court precedents in this case where the defendant who is the trustee has the right to attribution and the status of beneficiary against the plaintiff holding the right to attribution and the status of beneficiary.

Nevertheless, as of December 31, 200, the end date of the instant trust, the lower court determined the amount of the Defendant’s principal and interest on the Defendant’s loan as KRW 17,963,967,427, and determined the scope of the Plaintiff’s obligation to compensate for expenses by adding damages for delay at the rate of 5% per annum as stipulated in the Civil Act from the next day to the full payment date, and determined that the Defendant did not have any obligation to compensate for expenses for the Defendant’s performance and termination of trust affairs after the completion of the trust, or claiming that the Defendant had any obligation to compensate for expenses on the ground that the expenses incurred in the performance and termination of trust affairs or claimed that the Defendant had any obligation to compensate for the expenses incurred. In so doing, the lower court erred by misapprehending the legal doctrine on the

The defendant's ground of appeal pointing this out is with merit.

B. The trustee’s breach of duty of loyalty

According to the main text of Article 31(1) of the Trust Act, barring any special circumstance, the trust property shall not be deemed as its own property or the right thereof shall not be acquired, and the transaction made in violation of the above provision shall not be deemed as null and void (see Supreme Court Decision 2005Da64552, Nov. 29, 2007). On the other hand, in the case of a trust other than money trust, where the trustee is a trust company, the transaction made in violation of the above provision shall be deemed null and void. On the other hand, in accordance with the provisions of Article 12(1) of the Trust Business Act, the trust property shall be deemed as its own property with the permission of the court, if it is clear that it is beneficial to the beneficiary or there is any other justifiable reason. In light of the proviso of Article 31(1) of the Trust Act, the latter part of the Trust Act, which provides that "The trust property may be deemed as its own property with the permission of the court, and there is

According to the reasoning of the judgment below, the Defendant, a trust company, takes a method of lending funds to the trust account of an individual trust business requiring funds in advance on the basis of the entire trust business, without taking a method of raising funds necessary for each trust business. The Defendant, a trust company, takes a method of lending funds to the trust account of an individual trust business requiring funds. However, when lending funds from the trust account to the trust account in its own account, the interest rate of 1.5%

In light of the above legal principles, the above transaction of loan for consumption with interest shall be deemed null and void as it violates Article 31 (1) of the Trust Act. However, rather than claiming a claim for reimbursement based on the invalid loan loan loan loan from the trust account from the trust account, the defendant may harm the defendant's claim for reimbursement of expenses based on the loan borrowed from an external financial institution, etc. for the performance of trust affairs, on the ground that the defendant bears and pays the loan debt from the outside financial institution, etc. for the performance of trust affairs, or used it for the performance of trust affairs with the loan borrowed. Therefore, the court below needs to clarify this point. In such a case, in calculating the scope of the defendant's claim for reimbursement of expenses, the interest added

In contrast, the court below held that the above additional interest falls under the scope of the defendant's obligation to compensate for expenses on the ground that the defendant's re-loan of funds from the trust account and addition of some interest rate cannot be deemed null and void against Article 31 (1) of the Trust Act. The court below erred by misapprehending the legal principles on the interpretation and application of Article 31 (1) of the Trust Act, which affected the conclusion of the judgment.

The plaintiff's ground of appeal pointing this out is with merit.

7. 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)