부동산담보신탁상 우선수익권의 성질과 우선수익권질권의 효력 - 대법원 2017. 6. 22. 선고 2014다225809 전원합의체 판결을 계기로 -

Abstract

The Supreme Court en banc Decision 2014Da225809 on Jun 22. 2017 addressed a theoretically and practically important issue of the beneficial interest and the pledge on it in trusts for securing creditor’s claim. The majority opinion of the court ruled that the beneficial interest was still valid even after the secured claim of the beneficiary had been transferred by the assignment order and they had been separated from each other, and the pledge on the beneficial interest was valid as well. It provided that the beneficial interest is not a security interest but a right that a creditor holds according to a trust contract by which a debtor-settlor transfers his real estate to a trustee for security purpose. As a result the appendant nature of security interests should not apply to the beneficial interest. But the conclusion of this decision cannot be possibly agreed with, though the reasoning thereof appear quite reasonable. Analyzing the economic relation between the secured claim and the beneficial interest requires that the creditor should have the beneficial interest. If the separation of the claim and the beneficial interest were generally allowed, it would obscure the legal relations of the parties and cause disputes between them. In this case the beneficial interest should become invalid and the pledge on it become void as well. So this article investigates the characteristic of beneficial interests and provides the proper alternative through analyzing the legal relations between plaintiff(pledgee) and dependant(debtor).