위탁자에 의한 분양관리신탁 목적물 처분시 사해행위의 판단 - 대상판결 : 대법원 2021. 6. 10. 선고 2017다254891 판결 -

Abstract

The decision is about that the plaintiff, who is a beneficiary of trust agreement and also a creditor of trustor, exercised a creditor's right of rescission against the trustor for making fraudulent conveyances of property to general creditors in breach of the trust agreement. The Korean Supreme Court issued the decision that the transfer of ownership of real estate to the trustor’s general creditors was not subject to the creditor's right of revocation because the real estate transferred to the general creditors as a result of the trustor's act of fraudulent conveyance had no value at the time. However, it is difficult to agree with this conclusion for the following reasons. First, the decision seems to presuppose that the object of Fraudulent Conveyance is the title deed claim as a priority beneficial right, which is undesirable in terms of the need to restrict the transfer of title deed claims in real estate transactions. Second, in the decision, the trustor disposed of the registered name to a third party after illegally receiving the transfer of the registered name in disregard of the 'consent of all priority beneficiaries' requirement stipulated in the trust agreement, and it is not advisable to allow the transfer of rights based on such an illegal agreement between the trustor and the trustee from the perspective of the sound operation of the trust system.