담보신탁의 법리에 관한 비판적 고찰

초록

A trust for the security purpose is a trust established for the benefit of a creditor. Generally, the creditor is a senior beneficiary and the trustor is a subordinated beneficiary of the trust. Upon the debtor’s default, the trustee will have the power to dispose the trust property and distribute the proceeds to the creditor until the debt is fully paid. The remainder, if any, will pass to the trustor as a subordinated beneficiary. The Korean Supreme Court ruled that a claim secured by the trust for the security purpose did not constitute a rehabilitation security right prescribed in Art. 141 of Debtor Rehabilitation and Bankruptcy Act. Therefore, the creditor as a senior beneficiary will be paid out of the proceeds of the trust property regardless of the commencement of the rehabilitation procedure of the trustor. In addition, the Korean Supreme Court viewed the trust for the security purpose as a form of a trust, rather than a security right, and ruled that the principles of the security rights did not apply to the trust for the security purpose by way of analogy. However, such court rulings are against trends of the modern security law, ‘substance over the form’, and series of Korean Supreme Court decisions on Yangdo Dambo and Retention-of-Title sale cases where Yangdo Dambo and Retention-of-Title shall be treated as a rehabilitation security right under rehabilitation procedures. Additionally, such court rulings become an obstacle to successful rehabilitation of the debtor. Therefore, court rulings on rendering the trusts for the security purpose bankruptcy remoteness shall be overruled and the trusts for the security purpose shall be treated as a rehabilitation security right.

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