담보신탁을 근거로 한 매각 절차와 입회보증금반환채무의 승계 - 정당한 법해석의 관점에서 -

Abstract

The Decision at Issue ruled that sale by either an open competitive bid process or a limited tendering procedure, pursuant to what is prescribed under a security trust agreement is “other procedures corresponding to subparagraphs 1 through 3” in subparagraph 4 Article 27(2)(“the article at issue”) of the Sports Facilities Act with detailed reasoning by fully taking account of the language and structure, the legislative history and purpose of Article 27 of the Sports Facilities Act, and the practical function of a security trust. First, to interpret the article at issue, he or she should take notice the substance other than formality. A security trust is similar with a security created by means of transfer, a type of security involving transfer of rights such as ownership, to which the article at issue can be applied. Second, it is hard to assure that effect of bankruptcy remoteness in a security trust-based public sale process cannot be limited by the statute. Assuming that a person who acquires the facility by security trust-based transactions does not succeed the right and obligations upon the registration and reporting of the relevant sports facility business due to the effect of bankruptcy remoteness makes a circular argument error or begging the question error. Third, once the legislator has made the article at issue having comprehensive form, the obvious exclusion clause should be stated in order that security trust-based transactions do not conform to the article at issue. The real reason to make the interpretation of the article at issue being difficult resides in the doubts of the purpose and principle behind Article 27 of the Sports Facilities Act. However, if there is obvious reason for exception rules, the judge should not leave the reason for exception rules out of consideration only because that exception rules are unusual. The judge should be careful not to make the ruling as if there is no specific article even though he or she disagrees with the article. Dissenting Opinion, in fact, is difficult to avoid the criticism of nullifying the article at issue. It is the violation of the principle of equitable treatment if members of facilities have different level of protection depending on the business manager’s decision about the loan between the collateral security and the security trust. If someone does not agree to the objective purpose found in Article 27, he or she may try to interpret the article in a narrow. However, it is not possible to interpret the article at issue far away from the purpose of the legislation or as if the article does not exist, or in contrast to the principle of equity.