신탁과 주택임대차보호법상 대항력 - 대법원 2019. 3. 28. 선고 2018다44879(본소), 2018다44886(반소) 판결을 중심으로 -

Abstract

When the settlor and the trustee create a trust with respect to the property and complete the ownership transfer registration of the property in the name of the trustee, the ownership is transferred internally and externally to the trustee, and as a result, the trustee also has the right to manage the trust property. Although there are differing views as to whether such general legal principles of trust can be applied to collateral trust, it is reasonable to accept collateral trust as a type of trust and apply the general legal principle of trust to collateral trust. On the other hand, in order to be covered under the Housing Lease Protection Act, a lease contract must be made with a lessor who has the legal right to lease, and in principle, the trustee has the right to lease the trust property after the trust has been created. Therefore, if a lessee makes a lease contract with the settlor after the trust has been created, the lease contract cannot, in principle, be protected under the Housing Lease Protection Act. However, the lessee can be protected under the Housing Lease Protection Act if the settlor obtains the legal right to lease, such as by acquiring the ownership of the real estate after the lease contract has been made. Next, the lessee needs to be provided with housing and complete resident registration in order to have opposing power under the Housing Lease Protection Act. It is not enough for the resident registration to be merely formal, and it is required that a third party be able to recognize that the occupation relationship represented by the resident registration is based on the right of lease. If the lessee satisfies the requirements for the transfer of the housing and the resident registration, opposing power will occur from the following day. However, if the lease contract was not subject to the Housing Lease Protection Act because the lessor did not have the legal right to lease even though the lessee was provided with the housing and completed the resident registration that sufficiently discloses that the occupation is based on the right of lease rather than on ownership, when the lessor acquires the legal right to lease, opposing power will occur immediately. The transferee of leased housing with the lessee who has the opposing power shall be deemed to have succeeded to the status of the lessor. In order to be a transferee of a leased housing, the right to lease the housing or the rights accompanying this right must be finally and definitively transferred. A trustee under the Trust Act (including a trustee of a collateral trust), who acquires internal and external ownership of the trust property is the transferee of the leased housing that succeeds to the status of lessor. It can be evaluated that the Decision at Issue drew an appropriate conclusion by faithfully applying the basic legal principle of the trust under the Trust Act while also effectively realizing the legislative purpose of the Housing Lease Protection Act.