부동산담보신탁에서 수익권의 법적 성질

Abstract

Security trusts in Korea have been growing along with a proliferating project financing market that was introduced in the aftermath of the Asian Financial Crisis in the late 1990s. Security trusts offer a number of benefits. Creditors, first, can have their business funds managed by trustworthy and discerning trust companies(trustee), and keep their bonds more securely as they are protected against the risks of insolvency in developers(truster) or trust companies(trustee). Security trusts are essentially collaterals, and therefore may warrant some comparison to the right to security. Security trusts, in fact, support stronger claims (of beneficiaries) to collaterals than the right to security, not because the collaterals involved in the former entail more powerful claims on the part of the collateral holder, but because the trust law has the effect of prioritizing the collateral holder’s interest over the collateral provider’s. In a security trust, the truster transfers the title to the property to the trustee, making the trustee the owner of the trusted property. The Trust Act, however, requires that the trustee keep and manage the trusted property in separation from the trustee’s other assets. It is this independence of the trusted property that enables the beneficiaries to exert their claims in case the trustee goes bankrupt and becomes subjected to the rehabilitation procedure. In other words, the trust act’s requirement to protect beneficiaries against insolvency in effect strengthens their claims to trusted properties. One of the key issues concerning security trusts is the nature of beneficiaries’ rights involved. Some view these rights as deriving the right to security involved, while others view these rights as contingent upon the trusts. France, a country in the continental law tradition, separates security trusts from its trust law. The United States, a common-law country, views security trusts as collaterals and not as trusts. Considering the convergence between these two very different legal traditions on the nature of security trusts, the Korean judiciary and legal practitioners may be inclined to conclude that beneficiaries’ rights involved in security trusts derive from the security trusts being collaterals. Nevertheless, the current Korean trust act and judicial practices still have a long way to go before defining the nature of security trusts once and for all as a form of the right to security. For now, the Korean judiciary and legal practitioners consider security trusts as trusts, and should consider them in relation to other forms of trusts. The majority consensus in the Korean legal community—backed by court precedents—is that security trusts guarantee beneficiaries’ rights as rights to bonds.