골프장시설에 관한 담보신탁과 골프장 회원의 권리 보호

A person who becomes a member of a golf course by depositing a membership fee to a golf course operator and signing a membership contract acquires various rights including the right to request the return of the membership fee. He usually does not have a concern about the realization of the right to request the return of membership fee because the golf course operator owns golf course facilities including the golf course site, which the member regards as chargeable property. Problems arise when the golf course operator establishes a collateral trust for a golf course facility to receive loans from a financial institution and establishes the financial institution as a priority beneficiary. For a golf course facility where a collateral trust is set up, the priority beneficiary actually has the right of prior payment. With regard to the establishment of such collateral trust, the possibility of a fraudulent trust becomes an issue. After the membership fees are deposited from the members, Golf course operators often receive loans for business fund from the financial institution by establishing a collateral trust with the financial institution as the priority beneficiary. In this case, it is likely to be recognized as a fraudulent trust, because it corresponds to a case where a collateral is set up for a specific creditor among the many creditors. However, it is unlikely that a member will be able to raise a lawsuit against the trustee(trust company) seeking cancellation of the fraudulent trust in a situation where the exercise of the right to request the return of membership fee has not become a real issue. Furthermore, the exclusion period for raising a fraudulent trust cancellation lawsuit could be easily lapsed. If the golf course operator cannot properly repay the debt owed to financial institutions, serious problems arise. When this happens, the trust company(trustee) will sell the golf course facility(trust property), at the request of the beneficiary, and the financial institutions will collect its loan. In this case, it becomes an issue whether the person acquiring the golf course facility also takes over the liability for returning membership fees to golf course members. Golf course facilities correspond to the sports facilities set forth in the Installation and Utilization of Sports Facilities Act. According to the provisions of Article 27, Paragraph 2 of the Act, A person who acquires a golf course facility through an auction pursuant to the Civil Execution Law, realization of property pursuant to the Debtor Rehabilitation and Bankruptcy Act, the public sale of seized property pursuant to the National Tax Collection Act, the Customs Act, or the Framework Act on Local Taxes, or through equivalent procedures will take over the liability to return membership fees to members. Therefore, the question becomes whether the public sale of the golf course facility(trust property), after establishing a collateral trust for the golf course facility, corresponds to a procedure equivalent to the above-mentioned auction, etc. The procedures such as auction are liquidation procedures carried out by the executive court, the bankruptcy court, the tax office, and a national institution such as the Korea Asset Management Corporation which is entrusted with the procedure, in a state where ownership of the golf course facility in principle belongs to the golf course operator which is the debtor, and this procedure has the element of public disposal. On the other hand, the public selling procedure as the execution of the collateral trust is a liquidation procedure carried out by the trust company, which is not a national institution, in accordance with the request of the beneficiary, while the ownership of the golf course facility belongs to the trustee(trust company). Thus, this corresponds to a private disposal. Therefore, in light of the subject, legal form and nature of these procedures, it is difficult to see the selling procedure, which is the execution of the collateral trust, as a procedure similar to the above-mentioned auction, etc. However, if we look at the content and effect of the collateral trust in a substantial manner, it is not different from the case where mortgage is set up for a real estate owned by the debtor. Even when a collateral trust is established with a financial institution as the priority beneficiary for the golf course facilities, the financial institution get preferential satisfaction from the golf course facilities as in the case where a mortgage is set up with a financial institution as a mortgagee. In either case, general creditors such as members lose the possibility to overtake their receivables with the golf course facilities as executive property. In this respect, the public sale as execution of the collateral trust is equivalent to auction pursuant to the Civil Execution Act, and in particular, arbitrary auction as execution of mortgage. The establishment of such legal conclusion will contribute to guaranteeing the realization of the right to request the return of golf club membership fee. If the buyer of the golf course facility takes over the liability for returning membership fees to golf course members, the golf course business right must belong to the owner of the golf course facility. This is essential to protect the interests of the golf course acquirer and to realize the right to request the return of membership fees of the golf course members. Furthermore, it is important to consider whether to include golf club members as priority beneficiaries or to issue beneficiary certificates to golf course members when establishing a collateral trust in which the golf course facility is the trust property.