신탁수익권 압류의 효력범위 - 대법원 2018. 12. 27. 선고 2018다237329 판결에 대한 검토를 중심으로 - = The Legal Effect of Attachments of Beneficiary’s Right of Trust

다국어 초록 (Multilingual Abstract)

The legal character of a beneficiary right should be understood from the position of the theory of claim, and even though it is understood differently from this, the beneficiary right, the target of civil execution is ultimately limited to the beneficiary right with a value as a property right in a narrow sense, and the creditor of the civil execution would too understand the property value of the beneficiary right only to execute this.
And yet, profits from a trust are divided into capital gain and income gain, but since this is just a division according to trust practices but not that by laws like the Trust Act, the attachment of profits from the trust should be considered to cover both capital gain and income gain. Moreover, if a beneficiary is appointed as a rightful claimant since a claim for the payment of capital gain the rightful claimant has for a residual trust property at the termination of trust also is a mere modification of beneficiary rights enjoyed by the trust beneficiaries during the period of the trust, it is judged that it is of course included in the scope of effect of the attachment of beneficiary rights even though there is no separate indication of the seized claim unless separately set by an act of trust like trust contract, etc. Thus, this researcher approves the conclusion of the Supreme Court and would finish this paper, leaving the topics to think about as follows.
First, it is judged that there might be room for a different conclusion of the ruling if the ownership of the real estate in trust was transferred to the person who completed paying the purchase price, not to a third party. In fact, a number of precedents at lower courts reached a verdict that the effect of the attachment of beneficiary rights was not against prohibitive measures in the cases in which the trust company, the trustee, transferred the ownership of the real estate in the trust to the purchasers, which had the facts similar to those in the relevant ruling.
Second, concerning the opposing power of trust registration, since there is a problem that previously, the Supreme Court broadly recognized the scope of the effect of the opposing power of trust registration, lower courts made efforts to make logic to deny the opposing power of trust registration against their will, and it is judged that it would be better to regard that as an illegal act according to a third party’s claim infringement. This is because there is a ruling that the illegality of a third party’s claim infringement should be judged again at the time of the disposition, even if the purpose of the trust is set in advance and is written and registered on the original book of the trust since the time to judge the illegality of a third party’s claim infringement should be the time of the disposition of the trust property.