(영문) 서울고등법원 2012. 10. 18. 선고 2011나64944 판결

1. The plaintiff's primary claim against the defendant Ko Development Co., Ltd., the Korean Asset Trust Co., Ltd., and the plaintiff's secondary claim against the defendant's bankruptcy debtor, the bankruptcy debtor, the bankruptcy trustee of the Korean Real Estate Trust Co., Ltd., and Co., Ltd., are all dismissed.

2. The Plaintiff’s appeal against the Defendants is dismissed in entirety.

3. The supplementary intervenor shall bear the part concerning the participation in the lawsuit after filing the appeal, and the remainder shall be borne by the plaintiff.

Purport of claim and appeal

The judgment of the first instance shall be revoked.

The primary purport of the claim: As to the land listed in attached Form 1 (hereinafter “instant land”), Defendant Co-Development Co., Ltd. (hereinafter “Defendant Co-Development”) shall perform the registration procedure for cancellation of ownership transfer (hereinafter “instant first ownership transfer registration”) completed on October 1, 2010 with the receipt of No. 71127 from the Incheon District Court, Seocheon District Court’s Office of Registration of Real Estate Trust Co., Ltd. (hereinafter “Defendant Co-Development”), Defendant Korea Asset Trust Co., Ltd. (hereinafter “Defendant Korea Asset Trust”) completed on October 1, 2010 under the receipt of No. 71128 of the ownership transfer registration (hereinafter “instant second ownership transfer registration”).

As to the land of this case, the first registration of transfer of ownership between the defendant trustee in bankruptcy and the defendant co-development shall be revoked, and the defendant co-development shall implement the first registration of transfer of ownership of this case, and the defendant co-development shall implement the registration procedure of cancellation of the second transfer of ownership of this case to the defendant co-development.

Preliminary Claim 2: Defendant trustee in bankruptcy, Co., Ltd., and Co., Ltd., shall pay to each Plaintiff the amount of KRW 2 billion with the rate of KRW 20 billion per annum from July 1, 2010 to the date of full payment.

[The plaintiff added the first selective or simple consolidation claim (the first selective or simple consolidation claim due to the invalidity of item (a), the beneficiary revocation claim, and the second preliminary consolidation claim (the second preliminary consolidation claim, the first preliminary one, and the second preliminary one) at the trial, and the second preliminary claim (the first preliminary one) at the trial. On the other hand, the plaintiff is entitled to the first and second preliminary claims against the defendant bankruptcy trustee, and there is no primary claim, and the second subjective or selective co-litigation can only be made until the conclusion of the first trial proceedings (see Articles 70(1) and 69(1) of the Civil Procedure Act), ③ the above preliminary and selective co-litigation claim, as discussed later, are mutually compatible (i.e., the plaintiff is entitled to the first preliminary claim, the second preliminary or selective consolidation claim, the first preliminary one, and the first preliminary one).

Reasons

1. Basic facts

The following facts are not disputed between the parties, or each entry in the evidence of subparagraphs 1 through 10, Eul's evidence of subparagraphs 1 through 6, Eul's evidence of subparagraph 2, Eul's evidence of subparagraph 3, Eul's evidence of subparagraphs 1, 2, and Eul's evidence of subparagraphs 5 through 9 may be acknowledged by adding up the whole purport of the pleadings:

A. Establishment and termination of the instant trust

1) On August 7, 1996, the Plaintiff, the Nonparty Dong Dongdong Building Co., Ltd. (hereinafter “Dong Dong branch Building”) and the Nonparty 1 Jeju Real Estate Trust Co., Ltd. (hereinafter “Plaintiff, etc.”) entrusted the land listed in paragraph (2) [Attachment 1] owned by the Plaintiff, etc. (each of the above land was replaced by the instant land according to an urban development project on October 1, 2010; hereinafter “instant land”) to the company prior to the bankruptcy. The former company prior to the bankruptcy entrusted the land to the company prior to the bankruptcy, and the Plaintiff, etc., to newly construct the instant trust agreement with the Plaintiff, etc., taking into account the land development company (hereinafter “the instant building”), and to obtain the sales proceeds and other construction expenses (hereinafter “the instant trust agreement”) with the Plaintiff, etc. to obtain the sales proceeds and other construction expenses, and the trustee will obtain the sales proceeds and other construction expenses from the trust agreement (hereinafter “the instant building”).

2) Prior to the bankruptcy, the company contracted the construction of the instant building to Korea Industrial Development on September 4, 1996 pursuant to the instant trust agreement. On September 18, 1996, the registration of ownership transfer was completed based on one’s trust in its own future with respect to the instant land. Meanwhile, the Korea Industrial Development progress up to 69.7% of the construction of the instant building and did not receive progress payment from the company prior to the bankruptcy for a considerable period, and thus, rescinded the said contract on February 26, 1999.

3) The instant trust contract terminated on August 17, 2001 on the expiration of the trust term (see Articles 22 and 25 of the instant trust contract).

B. The duty to pay trust expenses and trust fees to the defendant bankruptcy trustee of the plaintiff and the Dong Dong building building

1) On March 18, 2003, the Plaintiff et al. filed a lawsuit claiming ownership transfer registration and a lawsuit claiming the delivery of the instant land and buildings (hereinafter “instant previous lawsuit”) against the company prior to the bankruptcy. On June 2, 2003, when the company prior to the bankruptcy was declared bankrupt and the litigation proceedings were interrupted, the bankruptcy trustee of the company following the bankruptcy was taken over. Meanwhile, Defendant 1 was appointed as the bankruptcy trustee of the company after the bankruptcy on May 19, 2006, when the second trial was pending.

2) On May 10, 2005, the court of the first instance rendered a judgment against the Plaintiff et al. on the part of the Seoul Central District Court 2003Kahap20072, but the court of the second instance accepted part of the appeal by the Plaintiff et al. on November 1, 2007, by accepting the appeal from the Plaintiff et al. on the part of Seoul High Court 2005Na49890, and “the Defendant bankruptcy trustee was paid from the Plaintiff and the East East Building Association the sum of 15 billion won (the KRW 12 billion, the ice Building Building 3 billion), and at the same time, the Incheon District Court 2003Kahap1462, July 14, 2003, the provisional attachment decision and the provisional attachment transfer registration decision of the Plaintiff et al. were executed on each of the above provisional attachment and the provisional attachment registration decision of the Plaintiff et al. on July 21, 2004.

C. Exercising the right to self-help and sell the instant land and buildings by the Defendant trustee in bankruptcy

1) After the judgment of the second instance of the previous lawsuit became final and conclusive, the defendant bankruptcy trustee requested the plaintiff et al. to pay the trust expenses and trust fees of this case at the same time after the transfer of ownership of the land of this case and the transfer of the land of this case to the plaintiff et al. after the application for the cancellation of execution of the provisional attachment decision of this case was made several times. However, the plaintiff and the building building association of the Dong bank did not pay

2) Accordingly, in order to recover the instant trust expenses and trust fees, Defendant bankruptcy trustee, as part of the exercise of the right to self-help under the former Trust Act (wholly amended by Act No. 10924, Jul. 25, 201; hereinafter the same shall apply), decided to dispose of the instant land and buildings, which are the instant trust property, by a public auction under the direction and supervision of the bankruptcy court under the direction and supervision of the bankruptcy court.

3) Since then, the defendant bankruptcy trustee conducted the first and second public auction procedures for the realization of the land and buildings of this case (hereinafter "the first and second public auction procedures of this case"), and decided on June 3, 2008 with respect to the land and buildings of this case as the price of KRW 29 billion between the Gulina Co., Ltd. and the Gulina Co., Ltd. on June 3, 2008, and concluded each sales contract with the price of KRW 29 billion on October 7, 2009. However, each of the above buyers notified the cancellation of each sales contract and confiscated the penalty of KRW 3 billion (hereinafter "each penalty of this case") on the grounds that each of the above buyers delayed the above payment obligations.

4) Ultimately, on July 1, 2010, the Defendant bankruptcy trustee completed the third public auction procedure (hereinafter “the third public auction procedure of this case”) with the permission of the bankruptcy court, sold the land and buildings of this case to Defendant Coco Development at the price of KRW 18.5 billion (the third public auction price). On October 1, 2010, the Defendant Coco Development completed the registration of ownership transfer of this case on the ground of the above sale (hereinafter “the disposal act of this case”). Meanwhile, on October 1, 2010, Defendant Coco Development completed the registration of ownership transfer of this case on the ground of the trust of Defendant CoCo Development on the same day.

5) On October 19, 2010, the bankruptcy court appointed Defendant bankruptcy trustee as a new trustee of the instant trust (hereinafter “new trustee”).

6) Around November 2010, the Defendant trustee in bankruptcy appropriated 15 billion won out of the proceeds from the sale of the instant land and building (i.e., KRW 18.55 billion + KRW 60 billion in total) of the proceeds from the sale of the instant land and building; and (ii) KRW 15 billion out of the proceeds from the sale of the instant land and building (i.e., KRW 6 billion in total) to repay the trust expense and the trust remuneration (i.e., KRW 3858,384,50 in total) (i.e., KRW 3858,384,50 in use as the expenses for the realization of the bankruptcy estate), and the remainder of KRW

2. Judgment as to the plaintiff's primary claim

(a) Order of the trial of the political party;

The plaintiff's primary claim is examined prior to the judgment as to the order of the trial, and as examined below, the primary claim of this case is the first and second transfer registration of transfer of ownership due to the invalidation of the ground that the disposal act of this case constitutes an act of disposal by an unentitled person. The primary claim of this case is the beneficiary's cancellation claim and its restoration claim on the ground that the disposal act of this case constitutes an act of disposal in violation of trust. The second primary claim of this case is the claimant for the second primary claim of this case as to the part of the property damage, such as the right to claim the ownership transfer registration of this case due to joint tort such as occupational breach of trust, and the conclusive loss of ownership as to the building of this case. The plaintiff's primary claim of this case is logically incompatible with the primary claim and the first preliminary claim of this case, while the first preliminary claim of this case is mutually incompatible with the main claim and the order of trial of the court is bound by the order of trial of the plaintiff, and the second preliminary claim of this case is judged in the order of the plaintiff's primary claim and the second claim.

B. Parties’ assertion and main issues

1) The plaintiff asserts that the disposition of this case is null and void as an act of disposal by an unentitled person because the defendant bankruptcy trustee only bears the temporary management obligation under Article 11(2) of the former Trust Act with respect to the trust property of this case, and there is no right to self-help sale right or other disposal right under the former Trust Act. The plaintiff asserts that the disposition of this case is null and void as an act of disposal by the unentitled person. The plaintiff's claim for ownership transfer registration on the ground of the trust property due to the termination of the trust of this case against the defendant bankruptcy trustee (hereinafter "claim for ownership transfer registration of this case") is a preserved right by subrogation of the defendant bankruptcy trustee in lieu of the defendant bankruptcy trustee, and seek for the cancellation of the first ownership transfer registration of this case and the second ownership transfer registration of this case that was completed in the future of the defendant

2) On this issue, the Defendants asserted that, as the general successor of the company prior to the bankruptcy and the company prior to the bankruptcy until the appointment of the new trustee of this case can exercise the right to self-help sale or other management and disposal of the trust property of this case, the disposal act of this case is effective as the disposal act by the person with the right to dispose of the trust property of this case. ② Even if the trustee in bankruptcy does not have the right to dispose and dispose of the trust property of this case or is restricted pursuant to Article 11(2) of the former Trust Act, the disposal act of this case can be subject to the revocation of beneficiary under Article 52 of the former Trust Act, it does not necessarily become null and void as a matter of course, and ③ even if the disposal act of this case is null and void as an act by an unentitled person

3) Ultimately, the main issue of the Plaintiff’s primary claim is whether the Defendant’s bankruptcy trustee has legitimate authority to sell the instant trust property even after the termination of the instant trust and the bankruptcy of the company prior to the termination of the instant trust in order to recover the instant trust expense and the claim for payment of trust remuneration, which had been held with respect to the instant trust property before the termination of the instant trust.

C. Summary of the legal relations of the instant case

(i) the occurrence of a statutory trust for the holder upon termination of the trust;

A) Even when a trust is terminated or terminated, a trust shall be deemed to exist until the trust property is transferred to the person to whom the trust property belongs pursuant to Article 61 of the former Trust Act until the trust property is transferred. This is a kind of statutory trust that forms the protection of the rights of the person to whom the trust property belongs in the way of the trust law. In a case where a statutory trust for the person to whom the trust property belongs determines the person to whom the trust property belongs in the manner of the trust law, it has the nature of extending the existing trust. However, in a case where a statutory trust for the person to whom the trust property belongs has the nature of extending the existing trust, it is deemed that the purpose of the trust is to transfer the person to the person to whom the trust property belongs after the liquidation and liquidation of the trust property, and it is deemed that the trustee’s exercise of rights is changed to a repayment disposition in accordance with the passive liquidation purpose, not for the purpose of the existing trust (However, the scope of the trustee’s rights is determined depending on whether it is necessary to terminate the trust affairs, for example, it can be acknowledged separately from the existing trust property).

B) Since legal trust for a person with the right to attribution is also a type of trust, the provisions concerning ordinary trust shall apply mutatis mutandis to the extent not contrary to its nature, except as otherwise provided in the former Trust Act.

(1) Even in cases where a trustee is declared bankrupt during the existence of a statutory trust for a right holder, and his/her duties are terminated, the trust relationship continues to exist by appointing a new trustee without termination; on the other hand, the trustee in bankruptcy shall keep the trust property and perform any act necessary for the transfer of the trust affairs until the new trustee becomes able to perform the trust affairs (see Articles 11 through 13, 15, and 17 of the former Trust Act). In addition, in cases where the trustee is replaced by another person, the new trustee shall comprehensively succeed to the status of the trustee in accordance with the legal principles replaced by the trustee provided for in Articles 26, 48 of the former Trust Act.

Pursuant to Articles 42 and 43 of the former Trust Act, the trustee of a legal trust for the claimant to whom the property reverts also has the right to claim reimbursement of expenses, damage, and remuneration against the trust property or beneficiary (hereinafter “right to claim reimbursement of expenses, etc.”). If the trustee is declared bankrupt as it constitutes the trustee’s proprietary property, such right to claim reimbursement of expenses, etc. shall belong to the bankruptcy foundation (see Article 382(1) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Consolidated Bankruptcy Act”) and Article 22 of the former Trust Act). Meanwhile, unlike trust claims, the trustee’s right to claim reimbursement of expenses, etc. shall not be exercised for the trustee’s proprietary property, and shall be exercised for the trust property, unlike trust claims. In light of the fact that the trustee’s right to claim reimbursement of expenses, etc. can not be exercised for the trustee’s proprietary property and shall be exercised for the trust property, the status of the trustee (the owner of the property, i.e., the trustee’s personal status derived from the trust property’s owner or manager).

2) The validity of the judgment of the second instance court of the previous lawsuit of this case

A) While the lawsuit in the first instance court is pending in the lawsuit in the lawsuit in this case, when the company was declared bankrupt and the lawsuit in this case was interrupted, the company's trustee took over the lawsuit in this case after the bankruptcy. On the other hand, the defendant's trustee was appointed as the new trustee on October 19, 2010. ① Since the land and the building in this case did not constitute the company's bankruptcy estate after the bankruptcy as the trust property in this case, the previous lawsuit in this case does not constitute dispute over the ownership of the company's properties belonging to the bankrupt estate. Thus, the company prior to the bankruptcy is not the owner of the trust property as the owner of the trust property, but the owner or manager of the trust property in this case. ② Article 11 of the former Trust Act provides the defendant trustee with the temporary management obligation for the trust property in this case, and thus, it cannot be deemed that the new trustee in this case grants the right to manage and dispose of the trust property in this case including the right to manage the trust property in this case.

B) Ultimately, the judgment of the second instance court of the previous lawsuit of this case is unlawful because it erred by the judgment on the merits without any defects in the requirements for taking over the lawsuit of this case, and the lawsuit of this case against the new trustee of this case, which is the authenticity of the lawsuit of this case, is still in a state of interruption. However, in relation to the relationship to the new trustee of this case, which is the authenticity of the lawsuit of this case, the lawsuit of this case has res judicata effect as long as the judgment has become final and conclusive. Accordingly, the final judgment of this case has effect on the company after bankruptcy pursuant to Article 2

3) Specific legal relations of the instant case

A) The instant trust terminated on August 17, 2001, and Article 26 of the instant trust deed was designated as the right holder to whom the Plaintiff and the Dong bank building, the existing beneficiary, belong. As such, the statutory trust for the right holder to whom the instant trust is attributed (hereinafter “instant statutory trust”) has the nature of extending the instant trust. Therefore, the beneficiary of the instant statutory trust is the Plaintiff and Dong bank building, and the former trustee becomes the company prior to bankruptcy, and the new trustee becomes the new trustee of the instant case.

B) The Plaintiff, one of the beneficiaries of the instant statutory trust, has the right to claim the ownership transfer registration of the instant land against the Defendant bankruptcy trustee pursuant to the judgment of the second instance of the instant previous lawsuit, and has the right to claim the ownership transfer registration of the instant land pursuant to Article 407 of the Integrated Bankruptcy Act. In addition, for the purpose of the instant statutory trust, the Plaintiff has the right to claim the ownership transfer registration of the instant new trustee pursuant to Article 48(1) of the former Trust Act (the purpose of the instant statutory trust is to completely transfer the instant trust property to the Plaintiff and the Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong division, thereby treating the instant trust property with the company’s authority and authority prior to the bankruptcy, preserving the trust property of the instant case until the completion of the transfer (limited to the right and possession, or possession), and properly raising the profits by the time of the preservation of the trust property of the Plaintiff and Dong Dong Dong Dong Dong Dong Dong Dong Building, and Article 48(1) of the former Trust Act provides that the new trustee bears the obligation to the former trustee pursuant to the trust act.

C) Pursuant to Articles 26(1) and 11(2) of the former Trust Act, the new trustee of the instant case may file a claim with the bankruptcy trustee for the transfer of the instant land, and pursuant to Article 407 of the Integrated Bankruptcy Act, the new trustee of the instant case shall have the right to repurchase the instant land pursuant to Article 407 of the former Trust Act.

D) In a case where the instant disposition is null and void as an act of disposal by an unentitled person, the ownership of the instant land is naturally returned to the company after bankruptcy. In such a case, there may be controversy as to whether the Defendant bankruptcy trustee or the new trustee of this case can exercise the right to claim the cancellation of ownership transfer registration due to the invalidation of the cause. On the other hand, the instant land does not fall under the legal foundation after bankruptcy, but may be deemed to fall under the current Foundation. (18) ② The exercise of the right to claim the cancellation registration is deemed to fall under the temporary management obligation of the Defendant bankruptcy trustee for the instant trust property under Article 11(2) of the former Trust Act; and (3) the Defendant bankruptcy trustee may exercise the right to claim the cancellation registration of the instant land against the new trustee of this case, in light of the fact that the new trustee of this case bears the obligation to transfer the instant land pursuant to Articles 26(1) and 11(2) of the former Trust Act. On the other hand, it can be interpreted that the new trustee of this case can exercise the right to claim the registration of this case without delay.

《당사자 사이의 구체적인 권리의무관계》

A person shall be appointed.

(d) Markets:

(i)the existence of preserved claims;

《원고의 채권자대위권 행사방안》

A person shall be appointed.

A) The Plaintiff is entitled to exercise the subrogation right of this case as one of the above three measures, depending on who the Defendant bankruptcy trustee and the new trustee of this case can exercise the right to claim cancellation registration of ownership transfer registration of this case as a claim for exclusion of interference based on the company's ownership based on the company's ownership after bankruptcy. In addition, in the case of the above (a) plan, as long as the period during which the right to claim ownership transfer registration of this case comes due upon the termination of the trust of this case, the right to claim ownership transfer registration of this case is not subject to the court's permission pursuant to Article 404 (2) of the Civil Act, even if the period during which the right to claim

B) As to this, it is not legally permitted to exercise the right of subrogation of the creditor's subrogation right of the company against the bankrupt in order to preserve the bankrupt's claim. Thus, even if the plaintiff is a bankruptcy creditor against the company after the bankruptcy, the plaintiff's primary claim of the plaintiff should be dismissed because it is not in the legal status to seek a judgment on the merits of cancellation of the first and second transfer registration of ownership in subrogation of the right of the defendant bankruptcy trustee, and thus, the plaintiff's primary claim should be dismissed. ① The land of this case constitutes the trust property of this case and does not constitute the company's bankruptcy estate after the bankruptcy. ② Even if any of the three methods is different, the company or the new trustee of this case after the bankruptcy is not in the status of the owner or manager of the trust property, but in the status of the owner or manager of the trust property, the debtor of the creditor's subrogation right of this case and the creditor of the subrogation right of the company after the bankruptcy is not a bankruptcy claim against the company after the bankruptcy (see Article 432 of the Consolidated Act), and the above subrogation claim does not constitute the defendants's primary claim against the bankrupt estate.

2) Necessity to preserve claims

A creditor may exercise by subrogation a specific right to the real estate neglected by the debtor for the purpose of preserving the specific claim, such as the right to claim for ownership transfer registration against his own debtor, and in this case, it does not require the debtor's insolvency. Thus, in this case, the plaintiff can exercise by subrogation the right to claim for cancellation registration of ownership transfer registration of this case, regardless of whether the defendant bankruptcy trustee or new trustee of this case exists in order to preserve the right to claim for ownership transfer registration of this case. Therefore, the necessity for preserving the claim is recognized in exercising the right to claim for subrogation

3) Whether subrogation claim exists (the validity of the instant act of action)

For the following reasons, Defendant trustee in bankruptcy is entitled to exercise not only the right to self-help sale under Article 19(1) of the trust contract of this case (hereinafter “right to self-help sale”) but also the right to self-help sale under Articles 42(1) and 43 of the former Trust Act (hereinafter “legal right to self-help sale”) with respect to the instant land, which is trust property of this case and does not belong to the bankrupt estate of the company after bankruptcy. Thus, the instant disposition of this case is valid as it constitutes an act of disposal by a person with the right to dispose of property. Therefore, subrogation claim is not acknowledged in exercising the right to subrogation of this case.

A) The scope of the authority of a trustee in a legal trust for the person holding the right to attribution may be determined depending on whether it is necessary for the completion of trust affairs. However, since the repayment of trust obligations, such as trust expenses and the payment of trust fees, and the disposal of trust property for the repayment thereof is unnecessary for the completion of trust affairs, if necessary, it may be recognized that the trustee can dispose of the trust property for realization. The right to claim reimbursement of expenses, etc. held by the trustee constitutes the trustee's own property and is declared bankrupt, it constitutes a bankruptcy estate if the trustee is declared bankrupt, and the status of the trustee as the person holding the right to claim reimbursement of expenses, etc. (which is derived from the status of the owner of the property, i.e., the trustee's owner or the manager) and the status of the trustee as the other party (which comes from the status of the owner or

B) A statutory trustee for a right holder of trust can exercise the right to self-determination of trust property to recover expenses incurred in the trust and remuneration if he/she owns the right to manage and dispose of trust property. Furthermore, under our precedents, the trustee has the right to manage and dispose of trust property as the title holder of the trust property. As such, it is reasonable to affirm the exercise of the right to self-determination of trust property in a statutory trust for a right holder of trust property where the title of the trust property remains in the trustee and the trustee has the right to manage and dispose of the trust property, and if it is denied, it is impossible for the trustee to request reimbursement of expenses for the trust property in the above case, so it is difficult for the trustee to transfer the ownership of the trust property to the beneficiary, and thus, it is difficult for the trustee to exercise the right to claim reimbursement of expenses for the trust property to the beneficiary. Therefore, even if the ownership of the trust property remains in a statutory trust for a right holder of trust property and the ownership of the right to manage and dispose of the trust property is transferred to the beneficiary, it is unreasonable for the trustee to exercise the existing trust property as a right holder of trust property.

C) In a legal trust for a person holding the right to attribution, a beneficiary has a relationship between the beneficiary’s duty to pay trust fees and trust expenses and the trustee’s duty to transfer the trust property’s ownership to the beneficiary (as seen earlier, the judgment of the second instance court of the previous lawsuit also held to the same effect). Since both parties are personal obligations, barring special circumstances, such as that the beneficiary can provide the trustee with the payment obligation of trust expenses and trust fees within a reasonable period of time, the beneficiary has no right to prevent the trustee from exercising the right to self-determination or right to sell trust property to receive trust expenses and trust fees solely on the ground that the beneficiary has a right to defense of simultaneous performance as above. This is based on the following: (a) deeming the former as a relationship between the beneficiary and the trustee’s duty to pay trust expenses; and (b) deeming the latter as a right to claim for the transfer registration of trust property to the trustee at the time of the termination of the trust contract to be vested in the trustee’s right to claim for the return of trust property expenses and the right to claim for payment of trust property from the beneficiary (see Article 19).

D) All property owned by a bankruptcy debtor at the time that the bankruptcy debtor is declared belongs to the bankruptcy estate, and the right to manage and dispose of the bankruptcy estate belongs to the bankruptcy trustee (see Articles 382(1) and 384 of the Integrated Bankruptcy Act), and the bankruptcy trustee has the same status as the general successor of the bankruptcy debtor, while the bankruptcy trustee has the same status as the general successor of the bankruptcy debtor), and the substantive status of the bankruptcy trustee shall be determined based on the bankruptcy debtor. In other words, the bankruptcy trustee, in principle, has the same status as the bankruptcy debtor. Thus, even if the bankruptcy trustee has the right to manage and dispose of the property of the bankruptcy debtor, even if

Therefore, if a trustee of a statutory trust for a person entitled to the ownership of a trust was able to exercise the right to enter into an agreement or legal self-help sale of the trust property in order to receive trust expenses and trust fees before the bankruptcy is declared, the trustee in bankruptcy may sell the trust property by self-help and use the proceeds therefrom for the repayment of the right to claim reimbursement of expenses, etc. that belongs to the bankrupt estate. In fundamental sense, the trustee shall be deemed the subject of the right and duty so long as he/she holds the trust property under his/her name before and after the declaration of bankruptcy. However, there is no ground to prevent the trustee from exercising the right to enter into an agreement or legal self-help on the ground that the trustee was declared bankrupt

4) Sub-committee

As seen above, the plaintiff's primary claim is without merit.

3. Judgment on the plaintiff's first preliminary claim

A. The plaintiff's assertion

The Plaintiff asserted that the instant disposition violates the principal land of the instant trust, and sought revocation of the registration of transfer of ownership No. 1 against the Defendant trustee in bankruptcy pursuant to Article 52 of the former Trust Act, and sought revocation of the registration of transfer of ownership No. 1 and No. 2 against the Defendant Co-development and the Korea Asset Trust, as such restitution.

(b) Right of revocation of a beneficiary's disposal act in violation of trust;

1) Even if a trustee disposes of the trust property in violation of the main text of the trust, the trustee acquires full rights to the trust property, thereby causing damage to the trust property and the beneficiary. The former Trust Act recognizes the trustee’s right to claim restitution against the trustee’s breach of his/her duty (see Article 38). In addition to the inclusion of the trust property in the trust property (see Article 19), the right to cancel the trustee’s disposal act in violation of the trust purpose and the right to claim the trust property (see Article 52) is recognized as the right to claim revocation (see Article 52), other than the trust property (see Article 19). Article 52 does not directly state the beneficiary’s right to claim restitution, but the beneficiary’s right to claim restitution is recognized). To strengthen the beneficiary’s protection, the abstract theory of the trust property under the Anglo-American Trust Act has been modified into the general judicial system of Korea, and there is a difference between the nature and content of the

2) The beneficiary's right to revoke shall be exercised in his/her own name, and it is necessary to recover the trust property as soon as possible. Thus, unlike the right to revoke a fraudulent act, a judicial exercise is not necessarily required and may be exercised outside a trial. Meanwhile, there is a conflict between the theory that the other party of the right to revoke a beneficiary is the trustee, the theory that the trustee is the other party of the trustee and the trustee, and the theory that the other party of the right to revoke a beneficiary is the other party of the trustee or the subsequent purchaser.

3) The beneficiary's right to revoke expires if it is not exercised within one month from the date on which the beneficiary becomes aware of the cause of revocation, and one year from the date of a disposition (Article 54 of the former Trust Act). As seen earlier, it is reasonable to view that the exercise period of the beneficiary's right is the exclusion period, not the exclusion period, but the exclusion period, which is the judicial or extra-judicial exercise period. Although the exclusion period of the beneficiary's right is too short, there is criticism of legislation that the beneficiary's right to revoke is insufficient to protect the beneficiary, the beneficiary's right to revoke is an extremely exceptional system that makes the beneficiary's right to unilaterally revoke the legal relationship between the third party by the beneficiary's sole declaration of intent without any procedural limitation outside the trial. In light of the above, the purport that the exclusion period is extremely short to protect the trust of the other party of the disposition subject to revocation or the subsequent purchaser and to maintain transaction safety can be understood to the extent

1) The part concerning the claim for revocation of the transfer of ownership No. 1 in this case (the part concerning the claim for revocation)

A lawsuit for the formation of a legal relationship with the aim of causing changes in or formation of existing legal relations is recognized only if there is a express provision in the law, and it is not permissible if there is no legal basis. Accordingly, among the plaintiff's first preliminary claims, the part of the plaintiff's claim for revocation of the beneficiary constitutes a lawsuit for formation of the nature of the claim, and there is no legal ground that it can be filed (Article 406 of the Civil Act can serve as a legal basis for filing a lawsuit for revocation of the creditor according to the content of the provision, but Article 52 of the former Trust Act cannot serve as a legal basis for filing a lawsuit for revocation of the beneficiary according to the content of the provision). This part of the plaintiff's claim is unlawful because it is filed without any ground.

2) The part concerning the claim for cancellation of registration of cancellation of ownership transfer registration No. 1 and 2 of this case (the part concerning the claim for restoration)

A) As examined below, the plaintiff's exercise of the right to revoke the beneficiary of this case was made after the right to revoke expires with the lapse of the exclusion period. In addition, since the disposition of this case (the transfer registration of ownership No. 1 of this case cannot be subject to revocation of beneficiary because it does not constitute an act of disposal, and thus the disposition of this case is the subject of revocation of beneficiary) is not in violation of the trust of this case or the principal trust of trust in the trust of this case, the part of the plaintiff's claim for restitution (the plaintiff's claim for cancellation of the transfer registration of ownership No. 1 and 2 of this case is the restoration due to the plaintiff's exercise of the right to revoke the beneficiary of this case against Korean assets trust of this case) among the first preliminary claim on the premise that the exercise of right to revoke

B) Since the right to revoke a beneficiary is a kind of formation right that requires a declaration of intention to the trustee and the other party, it shall take effect only when the declaration of intention to revoke reaches the trustee and the other party. In a case where the beneficiary exercises the right to revoke a beneficiary by delivering a copy of the complaint containing the declaration of intention to revoke to the trustee and the other party, the right to revoke a beneficiary becomes effective only when the trustee and the other party reach the other party, and the effect of revocation arises between the beneficiary, the trustee, and the other party. Therefore, even if the copy of the complaint containing the declaration of intention to revoke is served within one month or one-year exclusion period, the beneficiary legitimately exercised the right to revoke a beneficiary within the exclusion period.

However, at around October 29, 2010, the day of the instant lawsuit, the Plaintiff knew that the Defendant trustee was in violation of the principal place of the instant trust with the knowledge that the trustee in bankruptcy was in violation of the instant disposition ( further, even at the latest around July 7, 2010, the Plaintiff was the person who was aware of the instant disposition in violation of the principal place of the instant trust). In light of the legal principles as seen above, when the Plaintiff exercises the right of revocation as seen in the instant case, the duplicate of the instant complaint containing the intent of revocation should be delivered to Defendant trustee and Cco-development, who is the party to the instant disposition, within November 29, 2010, the period for exercising the right of revocation, and thus, the exercise of the right of revocation is lawful. Since the duplicate of the instant complaint should be served to Defendant 1 on February 24, 2011, and the Plaintiff’s right of revocation was extinguished by the lapse of the period for the Plaintiff’s exercise of the right of revocation to the beneficiary.

As to this, the Plaintiff asserted to the effect that he/she exercised the right to revoke the beneficiary of this case against each of the Defendant trustee in bankruptcy on July 20, 2010, by serving a preparatory document as of July 7, 2010 in Suwon District Court Decision 2003Hauhap4, which was declared bankrupt on July 7, 2010, and on July 20, 2010, the Defendant exercised the right to revoke the beneficiary of this case orally from the date of examination of the application for appointment of a new trustee as of the Suwon District Court 2010Kawon District Court 2010Kawon District Court 201, July 20, 2010. However, there is not any evidence to acknowledge otherwise, the Plaintiff’s assertion that the Plaintiff did not exercise the right to revoke the beneficiary of this case on or before November 29, 2010 is insufficient to accept the Plaintiff’s assertion in itself.

C) Since the act of disposal in violation of the main text of the trust stipulated in Article 52(1) of the former Trust Act is interpreted as an act of disposal in violation of the trust purpose. Thus, the act of disposal in violation of the main text of the trust is deemed to be an act beyond the trustee’s authority. Thus, the act of disposal in violation of the trust principal place is deemed to be an act outside the trustee’s authority. The Defendant trustee in bankruptcy can exercise not only the right to self-determination and the right to sell the trust property in order to recover the instant trust expense and trust remuneration, but also the right to legal self-help and sell the trust property. Thus, it cannot be said that the instant act of disposal

3) Sub-decisions

As seen above, the part of the plaintiff's first preliminary claim for the cancellation of the beneficiary is illegal, and the part of the claim for restitution is without merit.

4. Judgment on the second preliminary claim

A. The plaintiff's assertion

As a result of the company’s performance of its trust affairs in violation of the fiduciary duty and fiduciary duty, the duty of which was terminated by being declared bankrupt (see Article 1 of the trust deed of this case). As such, the defendant bankruptcy trustee claims the court to appoint a truster pursuant to Articles 11 and 17 of the former Trust Act, and temporarily keeps and manage the trust property of this case until the new trustee is appointed, and by transferring the trust affairs of this case to the new trustee, the new trustee should complete the trust affairs of this case so that the new trustee can achieve the purpose of the trust of this case. Nevertheless, the defendant bankruptcy trustee did not neglect the trust property of this case for a long time in violation of the above occupational duty, and in collusion with the defendant Co., Ltd., the defendant Co. 2 of this case’s bankruptcy administrator’s obligation to compensate for the total amount of construction price of the building of this case to the company prior to the bankruptcy of this case, and all legal disputes surrounding the acquisition of loans related to the plaintiff, etc. of consideration Industrial Development 200 billion won, and thus, it did not unfairly lose the market price of this case’s joint tort.

(b) Markets:

1) Determination on the main defense of this case

A) First of all, the defendant bankruptcy trustee, Co., Ltd. set forth in the Incheon District Court No. 99ta-10380, the non-party 5, the non-party 6, and the non-party 7 set forth in the Incheon District Court No. 2006TTTTT 10549 and the Jung-gu District Court No. 2007TTT 5, the non-party 6, and the non-party 7 set forth in the Incheon District Court No. 2007TTTT 703, which received a seizure and collection order, and the plaintiff lost the standing to file a lawsuit against the above defendants against the above defendants against the seizure claim, which is the seized claim, and thus dismissed the plaintiff's conjunctive claim 2). Even if the seizure and collection order became final and conclusive under the procedure of the seizure and collection order, the claims against the above defendants are not valid, and the above claims against the above defendants' joint tort and assignment order are not valid as follows.

B) Next, the defendant bankruptcy trustee added the second preliminary claim only when the plaintiff was the first instance trial. The first preliminary claim against the defendant bankruptcy trustee is nonexistent and the first preliminary claim against the defendant bankruptcy trustee is dismissed. Thus, the second preliminary claim is not allowed to deprive the defendant bankruptcy trustee of the interest of the court. The second preliminary claim is not allowed to be deprived of the defendant bankruptcy trustee's interest. ① In the appellate trial, the first preliminary claim against the defendant bankruptcy trustee can be extended without the defendant's consent or added a new claim, ② The first preliminary claim against the defendant bankruptcy trustee can be viewed as the first preliminary claim, and the second preliminary claim against the defendant in fact as the second preliminary claim, which would be detrimental to the court's decision. In light of the above, even if the plaintiff added the second preliminary claim at the trial without maintaining the first preliminary claim, the first preliminary claim against the defendant bankruptcy trustee's second preliminary claim, the second preliminary claim is not a problem of deprivation of the interest of the defendant bankruptcy trustee's interest. Thus, the above safety claim of the defendant bankruptcy trustee is without merit.

2) Determination on the merits

A) As to whether the defendant trustee in bankruptcy and co-development in collusion committed the joint tort of this case, Gap's evidence Nos. 9 through 13, Gap's evidence Nos. 14-1, 2, 15 through 18, 20, 21, Gap's evidence Nos. 26, 27, 28, 29-1, 28, 30 through 34, and Gap's evidence Nos. 30 through 35-1, 2, and 1 through 4 are insufficient to recognize it, and there is no other evidence to acknowledge it.

나) 오히려 피고 파산관재인은 이 사건 종전소송이 종료한 후 이 사건 신탁의 청산절차에 착수하여 이 사건 토지 및 건물을 자조매각한 후 그 매각대금을 이 사건 신탁비용 및 신탁보수 등의 변제에 충당한 사실은 앞에서 인정한 바와 같고, 이러한 약정·법정자조매각권의 행사가 피고 파산관재인의 권한(파산 후 회사의 파산재단에 속하는 재산의 관리처분권) 범위 내의 행위로서 적법·유효함은 물론 이 사건 법정신탁의 목적에도 부합하며, 수탁자인 파산 전 회사의 권한범위를 벗어나는 것도 아니고, 귀속권리자인 원고 및 동방삘딩이 이 사건 종전소송의 제2심 판결에 기해 가지는 동시이행의 항변권을 침해하는 것도 아님은 앞에서 살핀 바와 같은데다가, 을가 제4 내지 10호증, 을가 제12 내지 34, 35 내지 39호증의 각 기재에 변론 전체의 취지를 보태어 인정되는 다음과 같은 사정, 즉 ① 이 사건 각 공매절차에서 산정한 이 사건 토지 및 건물에 대한 1회차 최저공매가격 290억 원(원고가 이 사건 토지 및 건물의 적정매각가격이라고 주장하는 금액이다)은 그 산정방법[피고 파산관재인은 공매비용의 절감을 위하여 별도의 시가감정을 실시하지 않고 이 사건 토지에 대한 기존 감정가격 중 최고액인 180억 원(2006. 10. 12.경 감정가격이다)과 이 사건 건물에 대한 기존 감정가격 중 최고액인 110억 원(2004. 6. 17.경 감정가격이다)의 합계액인 290억 주44) 원 을 이 사건 토지 및 건물에 대한 1회차 최저공매가격으로 정하였다]에 비추어 이 사건 각 공매절차 진행 당시 이 사건 토지 및 건물의 정당한 시가를 반영한 것이라기보다는 그 ‘최저’공매가격이란 표현에도 불구하고 피고 파산관재인의 ‘희망’매도가격을 제시한 것으로 봄이 상당한 점(이후 유찰 등에 따른 재공매시마다 20%씩의 감액이 예정되어 있었다), ② 피고 파산관재인은 이 사건 제2, 3차 공매절차를 진행함에 있어 원고 및 동방삘딩에게 공매 완료시까지 이 사건 신탁비용 및 신탁보수를 지급하고 이 사건 토지 및 건물에 관한 소유권을 이전받을 기회를 부여한 점[즉 이 사건 제2, 3차 공매에는 “이건 공매는 신탁법 제42조 에 따라 수탁자가 가지는 신탁비용 회수를 위한 자조매각권을 행사하기 위한 것이므로 낙찰자가 위 공매 낙찰 잔금을 납부하기 전까지 위탁자가 서울고등법원 2005나49890 사건의 판결에 따른 의무(위 사건 변론종결 이후 위탁자를 채무자로 제3자가 한 강제집행 말소 포함)를 파산관재인에게 전부 이행하는 경우 위 낙찰은 무효로 한다.”라는 공매조건이 부가되어 있었던 점], ③ 피고 파산관재인은 이 사건 제3차 공매절차를 통해서야 겨우 피고 코코개발에 이 사건 토지 및 건물을 185억 6,000원에 매각할 수 있었던 점, ④ 이 사건 토지 및 건물의 실질적 환가대금 245억 6,000만 원(=위 매각대금 185억 6,000만 원+이 사건 각 위약금 합계 60억 원)은 1회차 최저공매가격인 290억 원의 84.7%에 달하는 점, ⑤ 피고 파산관재인은 위 환가대금 245억 6,000만 원 중 150억 원은 이 사건 신탁비용 및 신탁보수의 변제에 충당하고, 나머지 95억 6,000만 원은 이 사건 신수탁자에게 반환한 점, ⑥ 이 사건 신수탁자는 위 95억 6,000만 원을 이 사건 신탁채권인 공사대금채권(채권양수인) 10,619,664,559원과 분양대금채권 2,798,719,991원의 각 일부변제에 충당하고(위 각 채권액에 따른 안분비례에 의하여 7,566,036,940원은 위 공사대금채권의, 1,933,963,060원은 위 분양대금반환채권의 각 변제에 충당하였다), 피고 파산관재인은 위 150억 원 중 3,858,384,550원을 파산재단의 주45) 환가비용 명목으로 위 잔여 공사대금채권(유치권자) 3,053,627,619원(=10,619,664,559원-7,566,036,940원)과 위 잔여 분양대금반환채권 864,756,931원(=2,798,719,991원-1,933,963,060원)의 각 변제에 충당한 점, ⑦ 피고 파산관재인은 2011. 3. 18.경 위 정산결과를 원고 등에게 서면으로 통지한 점, ⑧ 피고 파산관재인의 이 사건 토지 및 건물에 대한 자조매각권 실행을 위한 환가절차 및 정산절차는 모두 파산법원의 지휘·감독 아래 이루어졌고, 파산 전 회사가 수탁자로 되어 있던 다른 분양형토지신탁의 경우에도 이와 동일하거나 유사한 방식으로 청산절차를 거쳤던 것으로 보이는 점 등을 종합하면, 피고 파산관재인은 적절한 환가절차를 거쳐 이 사건 토지 및 건물을 적정가격에 자조매각하였고, 적절한 정산절차를 거쳐 그 매각대금을 이 사건 신탁비용 및 신탁보수 등의 변제에 충당하였다고 봄이 상당하다. 결국 피고 파산관재인이 이 사건 토지 및 건물에 대한 자조매각권을 행사하여 그 매각대금으로 이 사건 신탁비용 및 신탁보수를 회수함에 있어 이 사건 신탁 또는 법정신탁의 수탁자로서의 주46) 충실의무 나 주47) 선관주의의무 에 위배되는 어떠한 행위를 하였다고 보기는 어렵다.

44) The existing appraisal price for the land and buildings of this case, taking into account when the defendant bankruptcy trustee calculates the lowest price for the first public auction, is as follows:

The voting division auction court (O. 31, 2003) located in the main text of this case (O. 31, 2004) Korea Appraisal Board (O. 17, 2004) Seoul High Court (O. 12, 2006) Korea Appraisal Board (O. 10,328,400,000 won for the land of this case) 18,074,70,700 won for the land of this case (O. 11,037,000,000 won for the building of this case) 5,486,292,000 won for the building of this case 6,816,605,000 won for the building of this case

3) Sub-decisions

As seen above, there is insufficient evidence to acknowledge that the defendant trustee in bankruptcy and co-development in collusion committed the joint tort of this case. Thus, the plaintiff's second preliminary claim of this case is without merit without any need to further examine the remaining claims.

5. Conclusion

Therefore, all of the plaintiff's main claims against the defendant C&C development and the Korea Assets Trust are dismissed as without merit. The part of the first preliminary claims against the defendant trustee, the trustee in bankruptcy, the beneficiary's claim against C&C development (the claim for cancellation of the transfer of ownership No. 1 of this case) is dismissed as unlawful. The part of the first preliminary claims against the defendant C&C development and the Korea Assets Trust (the claim for cancellation of the transfer of ownership No. 1 and No. 2 of this case) are all dismissed as without merit. The second preliminary claims against the defendant trustee in bankruptcy and C&C development are all dismissed as without merit. The judgment of the court of first instance is just in conclusion as to the first preliminary claims. Thus, the plaintiff's appeal against the defendants, the changed defendant C& development at the trial, the main claims against the Korea Assets Trust, and the second preliminary claims against the defendant trustee in bankruptcy, and the defendant's second preliminary claims against C&C development added at the trial. It is so decided as per Disposition by the assent of all.

[Attachment]

Judges Kim Sang-sung (Presiding Justice)

(1) If only the part of the amended claims is “the amended claims” in the Plaintiff’s written application for modification of the purport and cause of the claim(s) submitted by the Plaintiff at the first instance trial on April 5, 201, the Plaintiff appears to be in accordance with the Plaintiff’s genuine intent to seek the above claims (a) and (b) as selective consolidation, considering the overall purport and content thereof, etc.

2) The Plaintiff’s current representative director, and the former representative director and the present inside director of the Dong bank Building.

3) According to a land trust contract where a landowner entrusts land to a real estate trust company, a real estate trust company constructs a new building on the land and sells it to a real estate trust company, and then collects input costs and delivers proceeds to the beneficiary, where a trust contract is terminated during the construction of a new building, even though the land and a new building were agreed to include loan obligations for the construction of a new building as trust property, it shall be deemed that the new building under construction is also included in the trust property unless there is any special provision as to the ownership attribution of the building before completion. Accordingly, upon termination of the trust, the trustee shall revert the right to the building under Article 59 or 60 of the former Trust Act to the beneficiary, truster, or his/her heir (see Supreme Court Decision 2005Da9685, Sept. 7, 2007).

4) A debtor’s juristic act is subject to revocation right even in a case where the debtor’s competitive act is a false representation. Meanwhile, even if the debtor’s juristic act is subject to revocation right, it shall be null and void in a case where it satisfies the requirements for false representation (see, e.g., Supreme Court Decision 97Da50985, Feb. 27

(5) It is so decided as per Disposition by the assent of all participating Justices on March 23, 1993. It is so decided as per Disposition by the assent of all participating Justices on February 8, 2002.

(6) Where a trust is terminated pursuant to Article 55 of the former Trust Act, if the person has a right to attribution in the deed of trust, he/she shall be the truster or his/her heir, unless otherwise prescribed, and where the trust is terminated pursuant to Articles 56 and 57 of the former Trust Act, the beneficiary shall be the right to attribution (see Articles 59 and 60 of the former Trust Act).

(7) The main text of Article 61 of the former Trust Act provides that "where a trust is terminated, the trust shall be deemed to exist until the trust property is transferred to the person having the right to whom it reverts." This is merely to protect the rights of the person having the right to whom it is reverted and to perform the remaining duties, since even if the trust is terminated, it takes a considerable time to transfer the residual property to the person having the right to whom it is reverted, and in particular, when the person having the right to whom it is reverted is the truster or his heir, the trustee shall have the authority to transfer the residual property to the truster or his heir, or the person who instructs him/her, and thus, the trust deemed to exist under the above provision shall be deemed to be a statutory trust limited to its purpose (see Supreme Court Decision 200Da25989, Mar. 26, 2002

Note 8) Duplicate, Trust Act (2007), Triju, 684-687 pages.

Note 9) Supreme Court Decision 2005Da5812, 5829, 5836 Decided June 1, 2007, etc.

10) If the trustee bears the obligation to a third party in the course of the performance of trust affairs, the trustee is a trust creditor. The trust creditor may enforce a compulsory execution against the trustee’s proprietary property as well as the trust property.

Note 11) Supreme Court Order 2006Ma272 Decided September 11, 2008, and Supreme Court Decision 2009Da41045 Decided September 24, 2009

(12) See Supreme Court Decisions 2006Da19788, Sept. 11, 2008; 2006Ma272, Sept. 11, 2008; see Supreme Court Decisions 2006Da19788, Sept. 11, 2008; 2006Ma272, Sept. 11, 2008. Accordingly, in a case where a trustee goes bankrupt after the trustee files a lawsuit against the trustee before the bankruptcy, the lawsuit shall be interrupted if the trustee goes bankrupt, and the new trustee shall be deemed to have suspended the lawsuit and take over the lawsuit for the period until the appointment of a new trustee after the trustee goes bankrupt. It is reasonable to deem that the lawsuit is to be interrupted and that the new trustee shall take over the lawsuit for the period. It is see Supreme Court Decision 2006Da138, Sept.

13) If a judgment is rendered after the interruption of a litigation procedure is overended and a judgment is rendered, the judgment does not automatically become null and void. However, if there is a defect in granting a legal representation right, powers of attorney, or authority necessary for the conduct of litigation, and thus the judgment becomes final and conclusive, the judgment is subject to an appeal (Article 424(1)4 of the Civil Procedure Act). If a judgment becomes final and conclusive after the final and conclusive judgment becomes final and conclusive, the revocation thereof may be sought by means of a lawsuit for retrial (Article 451(1)3 main text of the Civil Procedure Act) (see, e.g., Supreme Court Decisions 9Da8971, Dec. 28, 1999; 200Da49374, Sept. 24, 2002; 2003Da34038, Nov. 14, 2003).

Note 14) Supreme Court Decision 80Da1895 Delivered on March 10, 1981

Note 15) Formers, the Bankruptcy Act (2006), the Legal History, the 282-283 pages, double-terms, the front books, 183, 689 pages.

Note 16) Formers, front books, 282-283, double machines, front books, 68,182 pages.

Note 17) Legal property refers to a bankrupt estate, the objective scope of which is prescribed by the Act on the Domination of Bankruptcy and Bankruptcy with respect to the composition of the bankrupt property. This meaning is that Article 382 of the Act on the Domination of Bankruptcy and Bankruptcy provides for this. In other words, it is an inevitable foundation in the form that should be legal as a matter of course. It refers to soldiers, front books, and 212

18) The Foundation refers to a foundation that the trustee in bankruptcy recognizes and actually occupies and manages any property belonging to the bankrupt estate after the commencement of the bankruptcy. For example, Article 407 of the Consolidated Bankruptcy Act provides that the declaration of bankruptcy does not affect the right to redeem any property that does not belong to the debtor from the strike foundation. Thus, if a third party claims the return of the property mixed with the bankrupt estate based on the ownership of the property mixed with the bankrupt estate, the bankruptcy estate shall be reduced. The Foundation is the Foundation in the process of the proceeding of this procedure. It refers to the Foundation in the process of the proceeding of the procedure. It refers to the soldiers’ book, the preceding books

19) Article 7 of the former Bankruptcy Act (amended by Act No. 7428 of March 31, 2005) provides that "the right to manage and dispose of the bankrupt estate belongs to the trustee in bankruptcy," so the bankrupt does not recognize the right to manage and dispose of the foundation, and Article 15 of the same Act provides that "the trustee in bankruptcy shall not exercise the right to manage and dispose of the foundation, and the bankruptcy claim shall not be exercised without resorting to bankruptcy proceedings." This means that the prohibition of free disposal of the bankrupt's property and the entrustment of the right to manage and dispose of the foundation's property to the trustee in bankruptcy shall be prohibited, at the same time, from exercising the right to manage and dispose of the foundation's property to the trustee in bankruptcy without resorting to bankruptcy proceedings, by giving it to only the trustee in bankruptcy and preventing the trustee in bankruptcy from participating in the bankruptcy proceedings. Thus, in order to meet the purport of the above provision, the exercise of the right by subrogation belonging to the trustee in bankruptcy for the purpose of preserving the claim against the bankrupt (see Supreme Court Decision 200Da37829, Dec. 27, 200002, 20002).

See Supreme Court Decision 91Da483 delivered on October 27, 1992.

(21) Supreme Court Decision 2003Da47621 Decided April 15, 2005 see Supreme Court Decision 2003Da47621 decided Apr. 15, 2005. In this case, the trustee claimed against the beneficiary for the delivery of trust property in his possession to recover development costs, such as trust loan, etc. that he disbursed by converting

22) Article 19 of the Trust Contract of this case is aimed at facilitating convenience in recovering expenses, etc. concerning the trust property by disposing of the trust property and by allowing the trustee to appropriate the proceeds for the payment 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. Therefore, even if the trust is deemed to exist after the termination of the trust of this case under Article 61 of the former Trust Act and until the trust property is transferred to the right holder, the trustee may recover the loan and all other expenses for performing the trust affairs in accordance with the method prescribed by Article 19 of the Trust Contract of this case (see, e.g., Supreme Court Decisions 2003Da47621, Apr. 15, 2005; 2006Da840366, Dec. 24, 2008; 2003Da6406366, Apr. 26, 2006).

Note 23) Supreme Court Decision 2003Da47621 Decided April 15, 2005 and Supreme Court Decision 2003Da55059 Decided December 22, 2005

24) The trustee's right to claim reimbursement of expenses under Article 42 of the former Trust Act is the right to claim compensation against the trust property or the beneficiary for damages incurred without any expenses or negligence which the trustee properly bears in the course of performing the trust affairs. While the trustee is in office, the trustee of the trust property cannot exercise the right to claim reimbursement of expenses against the trust property in the same way as compulsory execution of the right to claim reimbursement of expenses against the trust property (after the trustee's duties are completed, compulsory execution may be enforced against the trust property by exercising the right to claim compensation against the new trustee), and as stipulated in paragraph 1 of the same Article, the proceeds from sale of the trust property can only be appropriated for the repayment of the right to claim reimbursement of expenses in preference to other right holders (see Supreme Court Decision 2003Da5059, Dec. 22, 2005).

Note 25) Supreme Court Decision 2004Da31883, 31890 Decided October 15, 2004

Note 26) The compulsory execution or auction procedure against the trust property under the proviso of Article 21(1) of the former Trust Act (Continuation of Compulsory Execution) may continue against the new trustee.

(27) Article 49 (Continuation of Compulsory Execution) (1) of the former Trust Act (former Trust Act) (1) A former trustee may, on the basis of the right to receive the expenses or damages prescribed in Article 42 (1) or the right to receive the remuneration prescribed in Article 43, conduct compulsory execution or auction against the trust property.

Note 28) Supreme Court Decision 2004Da24557 Decided June 9, 2006 and Supreme Court Decision 2006Da7532, 7549 Decided March 27, 2008

(29) Supreme Court Decision 2006Da62461 Decided January 30, 2009. Meanwhile, the trustee’s exercise of the right to dispose of trust property under a trust contract is similar to exercising the right to dispose of real estate acquired through a security contract at the time when the mortgagee, who completed the registration of ownership transfer for the purpose of mortgage, delays in the performance of the debtor. Thus, as part of the realization procedure to exercise the right to dispose of real estate for the purpose of security, the mortgagee can seek delivery of real estate for the debtor as part of the realization procedure to exercise the right to dispose of real estate for the purpose of security (see, e.g., Supreme Court Decision 2003Da47621, Apr. 15, 2005).

(30) Supreme Court Decision 202Da48214 Decided June 24, 2003 see Supreme Court Decision 88Da26987 Decided November 13, 1990 ruled that "the bankruptcy trustee shall not be a representative of the bankrupt, bankruptcy creditor, etc. or a representative of the organization concerned, and shall not be a representative of the organization of the bankrupt, bankruptcy creditor, etc. or a representative of the organization concerned, and shall be a legal duty selected and appointed by the court in bankruptcy proceedings and exercising the power to manage and dispose of the bankrupt estate in his/her own name."

Note 31) In legal relations arising from false conspiracys and false conspiracys, see Article 56 of the Act, No. 56 of the Act (No. 608 of May 2007), 63-65 of the trustee in bankruptcy.

Note 32) The Revised Draft of the Trust Act (2010), the Ministry of Justice, and 569 pages

Note 33) The Revised Draft of the Trust Act (2010), the Ministry of Justice, and 574 pages

Note 34) Lee Jae-chul and Trade Name, the Trust Understanding (200), the Korean Judicial Administration Association, 229-231 pages

Article 76 of the current Trust Act provides that "The right of revocation under Article 75 (1) shall be exercised within three months from the date when the beneficiary becomes aware of the cause of revocation and within one year from the date when the legal act was committed."

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Note 37) Supreme Court Decision 97Da16664 Decided June 27, 1997; Supreme Court Decision 98Da46945 Decided April 9, 199; Supreme Court Decision 2008Da27301, 27318 Decided September 11, 2008.

Note 38) See Paragraph (d) of Article 1 of the Briefs submitted by the Plaintiff at the trial on June 18, 2012, and Category A 1, 2-2, and Evidence A submitted by the Plaintiff at the trial.

Note 39) double machines, see, 572 pages

40) If there is a ground for disposing of trust property under a trust agreement, or there is a justifiable ground for disposal, such as where trust property is sold by means of cost reimbursement pursuant to Article 42 of the former Trust Act, etc., even if it harms the beneficiary’s interest, it cannot be said that it is contrary to the nature of the trust even if it harms the beneficiary’s interest. This is also short-term, mutual name, front

41) If there exists a seizure and collection order against a claim, only the collection creditor may file a lawsuit for performance against a third debtor, and the debtor shall be deemed to lose the standing to file a lawsuit for performance against a seized claim (see, e.g., Supreme Court Decision 9Da2388, Apr. 11, 200).

Note 42) Supreme Court Decision 80Nu484 Decided September 22, 1981; Supreme Court Decision 2003Ma1667 Decided January 5, 2004; Supreme Court Decision 2005Da1407 Decided April 12, 2007; Supreme Court Decision 2010Da57213, 5720 Decided October 28, 2010; etc.

43) Article 262 (Amendment of Claims) (1) of the Civil Procedure Act (amended by Act No. 262) (1) The plaintiff may alter the purport or cause of the claim by not later than the time when the pleading is closed (in the case of a judgment without holding any pleadings, when a judgment is declared) within the extent that the basis of the claim is not altered: Provided, That the same shall not apply to cases where it substantially delays the proceedings. (2)

Note 44)

Note 45) The expenses paid by the Defendant in bankruptcy to exempt the seller’s warranty liability for the Defendant Co-development (such as expenses for termination of the lien, expenses for rescission of various compulsory execution, etc.).

46) The trustee’s duty to loyalty is a duty to manage the trust property in accordance with the trust purpose and to make maximum efforts for the benefit of the trust property. In general, it is recognized based on Article 31 of the former Trust Act, which limits the trustee’s acquisition of the right to the trust property (see Supreme Court Decision 2003Da55059, Dec. 22, 2005).

According to Article 28 of the former Trust Act, a trustee shall manage or dispose of the trust property with the care of a good manager according to the nature of the trust, and such duty of care can be understood as the same concept as that of a mandatary’s duty of care in delegation under the Civil Act (see Supreme Court Decision 2004Da24557, Jun. 9, 2006).

심급 사건

-서울중앙지방법원 2011.7.14.선고 2011가합13888

서울고등법원 2012.10.18.선고 2011나64944

-대법원 2013.10.31.선고 2012다110859

원심판결

-서울중앙지방법원 2011. 7. 14. 선고 2011가합13888 판결

본문참조판례

-2005. 5. 10. 서울중앙지방법원 2003가합20072호

-2007. 11. 1. 서울고등법 2005나49890호

-대법원 1998. 2. 27. 선고 97다50985 판결

-대법원 1999. 12. 28. 선고 99다8971 판결

-대법원 2000. 12. 22. 선고 2000다39780 판결