담보신탁계약과 대리사무계약의 상호관계 – 대법원 2009. 7. 9. 선고 2008다19034 및 대법원 2007. 9. 20. 선고 2007다43719 판결 사안을 중심으로 -

As the cases developers make agreement with real estate trust company such as Security Trust Agreement or Agent Agreement (on fund management) and perform new construction and sales are increasing, legal disputes surrounding Security Trust Agreement and Agent Agreement are often made. When the project is under both agreements and the trusted real estate has to be disposed according to the security trust agreement, there may be a controversy if the first beneficiary (financial institutes) can ask the real estate trust company to dispose real estate which is already sold to end buyer and in such case if the payment to the end buyer may infringe the right of the first beneficiary of the security trust agreement, when the real estate trust company pays back to the end buyer who have to discharge the sales agreement because the real estate that they bought have to be disposed. It can be interpreted that the right of the first beneficiary is restricted on the real estate which has already been sold (sales agreement is signed),in that financial institutes (the first beneficiary of security trust agreement) has already agreed Agent Agreement and it has been partially paid off with the payment that end buyers have submitted to the trust company according to Agent Agreement. Accordingly, even when real estate trust company disposes the trusted real estate for which sales agreement has already been signed and pays back to end buyer with the disposal payment, it cannot be interpreted as the infringement of the rights of first beneficiary of security trust.