In a case where Eul et al., the truster Gap et al. and Eul et al, the trustee Eul et al. established a trust contract with the provision that "where it is insufficient to cover expenses, etc. for performing trust affairs in money belonging to trust property, claims shall be made to the beneficiary, and if it is in shortage, some or all of the trust property may be sold and appropriated for the payment thereof, the case holding that the trustee in bankruptcy can exercise the right to self-determination and sell the land

In a case where Eul et al., the truster Gap et al. and Eul et al, the trustee Eul et al, concluded a trust contract with the content that "where the trust contract is insufficient to cover borrowings and interest accrued in money belonging to the trust property, losses incurred without any negligence of the trustee in the course of performing trust affairs, other expenses incurred in performing trust affairs, and substitute payments for the payment thereof, they may be sold in whole or in part, as deemed reasonable by the trustee, and may be appropriated for the payment thereof," the case holding that the above provision grants the trust property right to sell self-help to the company so that the trust property can be disposed of and appropriated for the payment of the expenses, etc. if the expenses for the trust property are not paid to Gap et al, the beneficiary et al. after the termination of the trust contract, even though the trust property does not belong to the bankruptcy estate, and the trust trustee can exercise the right to self-help sale of the trust property and claim the reimbursement of expenses, regardless of whether it has the right to manage and dispose of the trust property.

Article 105 of the Civil Act; Article 22 (see current Article 24) and Article 42 (1) (see current Article 48 (2)) of the former Trust Act (wholly amended by Act No. 10924, Jul. 25, 201); Articles 382 and 384 of the Debtor Rehabilitation and Bankruptcy Act

East Industry Co., Ltd. (Bae & Yang LLC, Attorneys Park Gyeong-sung et al., Counsel for the defendant-appellant)

Bacoa Co., Ltd.

Bankruptcy Obligor Korea Real Estate Trust Co., Ltd. and two others (Law Firm continental Aju, Attorneys Nam Dong-dong et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Na64944 decided October 18, 2012

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff’s Intervenor, and the remainder are assessed against the Plaintiff.

The grounds of appeal are examined.

1. The Plaintiff’s ground of appeal No. 1 and the Plaintiff’s Intervenor’s ground of appeal

A. According to the facts duly established by the court below and the records, ① the Plaintiff, Dong bank Building Building Co., Ltd. (hereinafter referred to as the “Plaintiff, etc.”) and the Nonparty 1 (hereinafter referred to as the “Plaintiff, etc.”) and the Korea Real Estate Trust Co., Ltd. (hereinafter referred to as the “former company prior to bankruptcy”) concluded a land trust contract on the instant land, which is a trust property, (hereinafter referred to as the “instant trust contract”). ② Article 19(1) of the instant trust agreement prepared by the Plaintiff, etc. and the company prior to bankruptcy, filed a claim with the beneficiary if the money belonging to the trust property and interest thereon, the damages incurred without the negligence of the trustee in performing the trust affairs, and the substitute expenses incurred in performing other trust affairs, and the substitute expenses incurred in performing the trust affairs, are insufficient to cover the payment thereof. ③ The Plaintiff, Dong bank Building Building Co., Ltd. (hereinafter referred to as the “Plaintiff, etc.”) and Defendant 1, the trustee in bankruptcy, who transferred the instant trust property to the Plaintiff and Defendant 2, the trustee in bankruptcy.

B. Examining the facts in light of the above, Article 19(1) of the instant trust agreement is interpreted as a special agreement that grants the right to self-help sales to the company prior to bankruptcy so that the trustee can dispose of the trust property and cover the expenses, etc. for the trust property if the expenses, etc. for the trust property were not received even though the Plaintiff and the Dong bank building building designated as the beneficiary was claimed during the existence of the instant trust or after the termination of the instant trust (see, e.g., Supreme Court Decision 2006Da62461, Jan. 30, 209).

However, since the Plaintiff, the beneficiary, and the Dong bank Building Building, after the termination of the instant trust, did not pay trust expenses and trust fees despite the company’s claim before the bankruptcy, the former company, the trustee, by exercising the right to self-help sale stipulated in Article 19(1) of the instant trust agreement, can be appropriated for the payment of trust expenses and trust fees.

Meanwhile, since all property owned by the bankrupt when the bankrupt is declared bankrupt belongs to the right to organize the bankrupt estate and to manage and dispose of the bankrupt estate, the bankruptcy trustee is in the same position as the general successor of the trustee who is declared bankrupt, and even though the trust property does not belong to the bankrupt estate, the right to self-help sale of the trust property and the right to claim reimbursement of expenses belongs to the bankrupt estate. Therefore, the defendant bankruptcy trustee can sell the land of this case by exercising the right to self-help sale of the agreement held by the trustee before the bankruptcy, regardless of whether or not the right to manage and dispose of the land of this case,

In this regard, the court below is just in holding that the defendant bankruptcy trustee can sell the land of this case, which is a trust property, in order to be reimbursed for trust expenses and trust fees after the bankruptcy was declared bankrupt on the ground of Article 19 of the trust deed of this case, and there is no error of law that affected the conclusion of the judgment by misapprehending the legal principles as to the scope of the trustee's authority

The allegation in the grounds of appeal is justified in the determination of the court below that the trustee may not exercise his right to self-help sale of any trust property not belonging to the bankrupt estate under Article 42 of the former Trust Act (wholly amended by Act No. 10924, Jul. 25, 2011; hereinafter the same) after the trustee was declared bankrupt. However, as long as the judgment of the court below that the defendant trustee can exercise his right to self-help sale based on Article 19 of the trust agreement of this case, it is merely an assertion of the grounds that do not affect the

2. On the second ground for appeal by the plaintiff

As seen earlier, insofar as the Defendant’s bankruptcy trustee can sell the instant land, which is a trust property, by exercising the right to self-help sale, and can be appropriated for the repayment of the right to claim reimbursement of expenses, it cannot be deemed that the act of selling the instant land by the Defendant bankruptcy trustee constitutes an act of disposal in violation of trust, which is subject to the exercise of the right to revocation under Article 5

Therefore, on the premise that the sale of the instant land by the Defendant trustee constitutes the act of disposal in violation of trust, the allegation in the grounds of appeal that the lower court erred in the misapprehension of the rules of evidence or the misapprehension of the legal principles as to the other party to the exercise of the right to revoke the right to revoke, by making an oral statement to the Defendant trustee in bankruptcy, even though the Plaintiff revoked the instant disposal in the examination procedure in the Suwon District Court case No. 2010-Ma42 on July 20, 2010, which determined that the instant land sale was

3. The plaintiff's ground of appeal No. 3

The Plaintiff’s assertion in this part of the grounds of appeal is that the instant disposition of this case was actively involved in Nonparty 2 and 3’s breach of trust by the Defendant bankruptcy trustee, the Defendant Co-development corporation, and the Es Savings Bank, and is null and void in violation of good morals and other social order. However, this assertion is only made in the final appeal, and it does not constitute a legitimate ground of appeal.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the Intervenor, and the remainder is assessed against the Plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)