(영문) 서울고등법원 2016.05.20 2015나2023558

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(영문) 서울고등법원 2016.05.20 2015나2023558

공탁금출급청구권 확인 청구의 소

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1. Revocation of the first instance judgment.

2. Asia Trust Co., Ltd. is prohibited on June 27, 2014 by the Seoul Central District Court in 2014.

Reasons

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Basic facts

A. On September 30, 2009, Pule L&C Co., Ltd. (hereinafter “P&C”) concluded a real estate security trust agreement (hereinafter “the instant trust agreement”) with the Asian Trust Co., Ltd. (hereinafter “M&C”) as the first beneficiary of the trust principal (hereinafter “priority beneficiary”), and with the Gyeonggi Savings Bank Co., Ltd as the first beneficiary of the trust principal in order to secure the loan obligations against the Gyeonggi Savings Bank Co., Ltd., Ltd. (hereinafter “S&C”), and concluded a real estate security trust agreement (hereinafter “instant trust agreement”). On October 1, 2009, the registration of ownership transfer and trust was completed with respect to each of the instant real estate on the trust basis of the instant trust agreement.

The main contents of the instant trust agreement are as follows.

Article 1 (Purpose of Trust) The purpose of this Trust is to preserve and manage the trusted real estate and to realize and settle the trust in case of default in order to guarantee the management of the ownership of the trusted real estate (referring to each real estate of this case) and the performance of obligations or responsibilities to be borne by the truster (including the debtor, if any; hereinafter the same shall apply).

Article 15 (Bearing of Expenses) (1) Taxes and public charges on real estate and trust profits, maintenance expenses, financial expenses, and other various expenses necessary for the performance of trust affairs, and damages arising from any cause not attributable to the trustee in the performance of trust affairs, shall be borne by the truster.

(2) Where money belonging to trust property falls short of the payment of the expenses, etc. under paragraph (1) and it is impossible for the truster to receive the shortage, part of the trust real estate shall be made in a manner deemed reasonable by the

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